According to a long-time libertarian activist, former prosecutor Bob Barr does not support fully informed juries. The activist says Barr was confronted on the issue and did not back down.
Barr’s running mate Wayne Allyn Root, who seems to be running an independent campaign for the vice presidency, has the following to say about prosecutorial abuse and fully informed juries:
Jury Rights I support an amendment being made to the US Constitution that would eliminate the practice of ‘voir dire’ (prosecutorial jury-rigging), make jury service optional, and clearly enumerating the right of the citizen-juror to judge the law in trials, as well as whether or not the law was broken. This amendment would also mandate that all jurors must be informed of their rights before the beginning of every trial. Such an amendment would clarify the vague language (referring to the “common law”) of the 6th amendment to the US Constitution, and leave no room for tyrant judges and prosecutors to manipulate the law in favor of a conviction. Such an amendment has often been referred to as a “Fully Informed Jury Amendment.”
My personal feeling is that Root’s “tort reform” is mostly an anti-lawyer populism, that sounds good to the average joe. But as Steve Perkins pointed out above, is ignorant.
But, it IS harmless populism, and it may help the campaign.
It is gratifying to see Root embrace jury nullification.
Barr’s anti jury nullification stance is bothersome. I understand now why he refused to campaign and debate prior to the nomination.
PEACE
Steve
About a year ago, I wrote a lengthy article on Last Free Voice about jury nullification. There does not need to be a constitutional amendment to make it law. Jury nullification is the right of all juries, and it is a right which has been recognized and upheld by SCOTUS. The question is therefore not whether it exists as a jury right, since it does, but rather whether juries must be informed of that right.
If anybody is interested, the article is at http://lastfreevoice.wordpress.com/2007/05/01/jury-nullification-should-juries-be-informed-of-their-right-to-ignore-the-law/
Spence,
you wrote: “I was already aware that Wayne was for tort reform. That’s one of his few positives in my opinion. But if Barr is really against this issue, this raises some questions. I mean, he’s already recanted his other stances, so why not this one, if he is seriously libertarian?”
Why is pro tort reform a libertarian position? Another way of describing tort reform is limited access to good legal representation. And I suggest to you that being pro tort reform is the distinctly wrong position for a libertarian (depending of course on how one defines tort reform).
As the system developed, lawyers began to offer their services based on contingency. With this market driven solution, the attorney takes the risk of being paid nothing and bearing all the costs of the lawsuit. The attorney does so because he/she has the incentive of being paid well if the plaintiff client wins and gets a large payment from the defendant.
It’s the only way most people can get a good attorney in civil cases such as personal injury and in many lawsuits. Without contingency fee arrangements, only wealthy people could access representation.
Tort reform also could eliminate the benefits to society which are derived from class action lawsuits. In such suits lawyers operating on contingency fee arrangements can hope to profit by representing people who individually lost very few actual dollars and who would not otherwise have sued the marketplace wrongdoer.
When taken together these individual victims represent a class whose tort is substantial.
Because attorneys have the incentive of being paid a substantial fee these small dollar loss victims can have good representation.
Class action lawsuits can correct marketplace wrongdoing which otherwise would go unaddressed or unavenged. With tort reform, large corporations can rip off all consumers, each for small amounts, knowing it isn’t worth anyone’s trouble and expense to sue.
G.E.: well, of course OJ is a bad example of nullification. I said “some people feel that OJ Simpson was freed by his jury….” Doesn’t mean I personally think he was freed by nullification. In any event, I don’t believe they conclusively proved that he was “framed”, though the LAPD commited a major cluster***k in it’s investigation. Then again, that pretty much sums up the LAPD anyway!
Jury nullification sounds good on paper and there have been instances it’s been used for good, but frankly, it’s not used consistently enough to do much good. personally, if I was on tril for a victimless crime, I would not place any faith in my jury to do the right thing. I still say that the best and most direct course to take is to focus on wiping those laws off the books, instead of hoping for a trial tactic that may or may not work.
Let’s assume you are one of the “freedom Riders” in the South and was brought up on bogus charges where nullification would work. Do you honestly believe that an all white jury who view segregation as evil would do the right thing and free you? You’re essentially relying on the HOPE that the jury would do so.
Hope is no guarantee of freedom.
You are correct here. Lawyers are a popular target for cheap-heat among GOP and Libertarian politicians, and I used to more or less agree. However, since I started law school I started to realize that many of these simple arguments are coming from ignorance.
I cringe whenever Root talks about “lawyers sticking themselves into business deals and making things more complicated to drive up their rates”. Uh, actually Wayne… corporate attorneys make the BULK of their money cleaning up after deals that weren’t properly vetted in the first place. By all means, draft your contracts yourself on cocktail napkins… more work for me later!
two things I noticed:
1. Root’s vision of tort reform appears (at least at first glance) to promote responsibility in things like medical malpractice suits, where the tendency of the AMA is to push the insurance side and ignore the self-policing role they should have (as the trade union for these high-dollar “workers”). He nailed this along with other key issues in the about 30-second answer to the healthcare question from the debate.
2. If Barr and Root cannot get “on the same page” philosophically on this simple an issue, they can hardly do so on a website!
“Nullification can’t be used to do this. Only to make an exception.”
I know that. That doesn’t mean that it can’t be abused in situations with a favorable jury. Combine it with jury-rigging, nullify the law and combine it with double jeopardy, and there’s a recipe for a disaster. I already mentioned that this might not be too much of a problem, but still could be a reality. I did not say I was overall against the idea.
I count fully-informed juries as part of tort reform in that they would help fight all these frivolous lawsuits. I’m guessing that was Wayne’s interpretation as well. These lawsuits cost people in the end, and in the event of gigantic corporate lawsuits, the price may even get passed onto consumers. A libertarian tort reform would correct the system by advocating higher stakes for both sides as well as empowering the jury. Obviously, the fact that I view any of these lawsuits could be considered a frivolous and therefore “unlibertarian” view, but naturally, I wouldn’t impose it on a national scale, because the states need to be given this power so that we can deregulate the rest of the system. You wouldn’t do this in reverse order, cause then you’d be swamped in more court-clogging suits.
My understanding is that they are finding the law itself to be invalid — but this sets no kind of legal precedent or anything like that.
“I mean, it is worrisome if jurors decided to spontaneously declare certain laws invalid”
Nullification can’t be used to do this. Only to make an exception. If a Jury “nullifies” a law during the coarse of a trial–that law stays on the books and is still enforceable. The jury is simply stating that they believe the law has been enforced wrong IN THIS INSTANCE.
Tort reform, to me, was one of Wayne’s negatives. I guess it depends on what “tort reform” means. My understanding of tort reform is that it is virtually the opposite of “fully informed juries.” Most conservative tort reforms seek to take power away from juries and give it to legislatures and judges. The only good tort reform I know of is “loser pays,” but even this should only be implemented at the state level. The federal government has no authority to impose any kind of tort reform on the states in the absence of a constitutional amendment.
If Root burst on the scene with the exact platform he has now, I would have probably supported him. Not over Ruwart, but strongly over Barr, and enough to perhaps do what I could to put him in the top spot over Barr.
I was already aware that Wayne was for tort reform. That’s one of his few positives in my opinion. But if Barr is really against this issue, this raises some questions. I mean, he’s already recanted his other stances, so why not this one, if he is seriously libertarian? I mean, it is worrisome if jurors decided to spontaneously declare certain laws invalid, but that is why there is more than one person on a jury anyway, and to hear him go against this… well, it raises more doubts than were just recently settled.
Besides, the OJ example is a bad one. Let’s just look at the crime of “murder.” A jury would not likely say the crime of murder was illegitimate. In the case of OJ, they were saying he didn’t do it or there was a reasonable doubt as to his guilt. That’s not jury nullification. Nor would it be jury nullification for a “sympathetic” jury to let a guy (or gal) off. Jury nullification is when the jury admits a defendant is guilty, but that the law itself is wrong. It is a check on big government and a great thing, imo.
Im inclined to agree with GE. Jury Nullification at least puts the decision in the hands of We The People, rather than “We the Magistrates”.
Gene – OJ was freed due to the cops’ attempt to frame a guilty man. He deserved to be freed under the law as it stands.
Some juries will make bad decisions, but I’d rather have a jury make a bad decision than a legislature or a court.
It would appear that way, Trent. Root’s site says he supports it in no uncertain terms. According to this activist I was on the phone with today, Barr does not, and stood by this position when recently confronted. Then again, he changes his position on DOMA every ten minutes, so who knows. He is a former (federal, I think) prosecutor, though. To most of these people, convictions are more important than justice.
I am on the fence personally about jury “nullification”. Clear violators of our rights, such as thieves and murderers could theoretically be released by a sympathetic jury (such moonbats exist) . Some people feel that OJ Simpson was freed by his jury for a number of reasons, such as sympathy for his race and/or celebrity status. A “Robin Hood” style character could as well be freed because his crimes of theft were meant to “help the needy”.
I don’t believe jury nullification is inherently libertarian, though it can have some practical purpose in freeing an unjustly persecuted person. However, there is no guarantee that said person would be freed by his/her jury. Like it or not, people resent jury duty and combined with their biases, the likelihood of someone being freed by nullification is very slim to none.
There are more important aspects to liberty we need to address: instead of trying to free a marijuana user at trial through jury nullification, let’s instead wipe those laws off the books.
So one opposes FIJA (Barr) and one supports (Root)?
I always get dismissed really early on whenever I’ve been called into jury duty.
Well, at least Wayne mouths mostly libertarian principles.
Well I hope they get on the same page, otherwise, this could end up being comical.
I feel kinda guilty, Jason. I emailed his campaign and told them they should update his site to the campaign for vice president.
Think about it, do you want to see Wayne all over Barr’s site?
There goes fundraising…
Not that it matters to me per say, but they should just roll with 1 website.