Jury Nullification

the jury did just what it was told to do. the jury is not to be faulted for the verdict. the fault is in the law.

the judge tells the jury what the law is, and orders the jury to enforce it. This is the first constitutional hypocrisy. The Jury is the law. “You are the law.” Paul Neuman in the Verdict had it right.

People ask how can common-sense juries have returned verdicts of $675k against Joel and $1.92 mil against Jammie Thomas Rasset? The answer is the verdict form and the judge’s order to the jurors to fill it in as they are told. The jury is not to blame. The fault lies with the interpretation of the law that shaped the form and with the judge’s order that the jury is bound to it. Congress never authorized it. Our Constitution does not condone it.

On this we have just begun to fight.

There is no place on the verdict form for judgment whether what Joel did was right or wrong, fair or unfair. The law the RIAA persuaded the judge to impose simply declared the conduct of a generation to be wrong, no jury trial. Just fill in the form, the jury’s only task to say how much the defendant must pay, with instructed minimum and maximum for each infringement.

thirty times

The jurys’ bankrupting verdicts are not flukes. They are the product of rotten law. Proof in math is often made by reductio ad absurdum: If your logic leads to absurd result then your premise must be wrong.

Fairness and Justice are jury issues, in this case taken from the jury, the jury’s fundamental function nullified.

The table is now set. The question is presented. Next event is Judge Gertner’s opportunity (or not) to remit the excessive award against Joel to a reasonable (constitutional) amount.

9 Responses to “Jury Nullification”

  • The jury verdict form is a contract. I always modify govt contracts, like driver license internal passports and traffic ticket lawsuits, saying it’s signed under duress.

    So jurors can change the jury verdict forms any way they want, by crossing out words and adding new words.

    Bush since sheeple can’t read, write or think, they just do what the 13th juror tells them to do.

  • Faculty Colleague

    Charlie –

    Is there a limit or constraint, in your view, on the jury’s role in defining what the law is? It seems implausible to me that you mean to tell the world that, for every issue, groups of randomly chosen jurors should be asked to think through all the policy, economic, strategic, and legal repercussions of a statute and then come to their own conclusion, every time. You seem to think that juries can do this for Internet cases involving music. Maybe. (You never say explicitly why there, and not elsewhere.) And surely you don’t think juries should be re-thinking and re-articulating their own systems of (say) antitrust law, or bankruptcy. Moreover, what do you say to the concern that juries will be inconsistent with one another in this role (thereby leaving us with rules that vary not just state to state, but day to day, jury to jury), and the concern that juries will never have adequate big-picture information to actually form, or veto, laws in a sensible way?

    Judge Gertner has already raised with you the concern that you are taking positions that are enormously sweeping, and not doing any public work to constrain, cabin, or otherwise clarify the contours of your views. In her statement, she pointed out that your articulation of fair use would immunize everything on the Net, as if the Internet must be a place with absolutely no legal constraints. Again, maybe that is your view. But surely your view isn’t equally sweeping about jury nullification?

    I wish you would start being more precise in your public statements on all these issues. You have a modest following among people who already believed the views you publicly espouse. But the real work of a scholar / public intellectual is to change other minds — move other people away from their original views and toward the new ones. On that, I think it’s fair to say that you’ve failed spectacularly, and with good reason. The views you’ve expressed might be founded in nuggets of thoughtful insight (your debate with Doug Lichtman at IPColloquium a few months ago suggests that there really are issues to talk about here, and well) but you present your views now with such show and breadth that you are alienating people who should be with you, and doing a real disservice to the people who are still listening to you and trying to learn from you.

    Personally, I’ve been sad to see this spin so out of control and so tarnish the wonderful (albeit always quirky) legacy you had built for so many years. I hope you never fully realize what’s really happened over the last twelve months.

    Your friend,

  • I agree completely and have always told myself that if I am ever on a jury and think the law is unconstitutional, or otherwise unjust I would find the dependent not guilty. But if you are given that form and told that under penalty of perjury you need to answer the questions honestly, there isn’t really much you can do. The question is not whether he downloaded the songs, but whether he should be penalized for it.

    The whole point of having a jury of your peers is to defend against an unreasonable government.

  • Once you have an unjust law, the right to a trial by a jury of peers disappears. Prospective jurors who are mindful that a guilty verdict would cause injustice and bankrupt their progeny are not competent to make an objective determination whether a violation of lawfully enacted statute happened, or not. They must be disqualified from serving. You will not find any hippies on drug crime juries.

  • Gertner issued a late ruling, I believe just before Nesson brought Joel to the stand, that the jury would decide liability out of “excess of caution” — I believe because the Tenenbaum team was pressing for the case to be treated like a criminal case, where juries decide “guilt,” rather than a typical civil case, based on the way the RIAA was pursuing it. Then Gertner issued a second ruling, just before Nesson’s summation to the jury, that Joel was in fact liable, based on Joel’s response to an inappropriate legal question from the RIAA of whether he was saying he was admitting liability (which he was not competent to answer), rather than an appropriate question of fact which he would have been competent to answer — reversing the determination that the jury would decide that, and interfering with Joel’s ability to present a consistent defense. Joel’s testimony was taken under one set of expectations — that Nesson would be able to make a case to the jury that Joel could be found not liable of infringement under fair use — and then that context for Joel’s testimony was removed (by an invalid ruling by the judge) just before summation. Couldn’t that disruption in the reasonable conduct of the case be a basis for appeal?

  • I attempted to post the following on the “cyberprof critique” thread but it’s not showing up there for some reason, so I repost here:

    Well, I’m mostly interested in what sort of appeal you’ll launch. You’re in it, regardless of what anyone else may think of it. Didn’t Gertner issue the decision to allow the jury to decide liability just before the last day of testimony — Joel himself? And then rendered a ruling based on Joel’s response to the RIAA lawyer’s question of whether he was admitting liability, just before your closing argument? Beckerman has noted that the question was improper because it addresses a legal question Joel could not be regarded as competent to address, rather than a question of fact. Can an appeal be made either on the basis that Gertner’s ruling of liability was wrong on that basis, or on the basis that the timing of these two rulings interfered with your ability to press the case in a consistent way (or however that kind of issue might be stated in legal terms, if it can be)? You were initially led to believe that the form of the case would be such that you’d be able to make an appeal direclty to the jury on the question of liability for infringement on the fair use basis, but then (and might this point be buttressed by pointing out the problem with the liability question that was put to Joel?) after your were done presenting your case with the expectation that it would take a form similar to a criminal case, you then had that opportunity removed by Gertner’s ruling that Joel was liable? Also, might the case be made that Gertner’s rendering a ruling on liability was invalid itself, for a similar reason of its effect on the integrity of the proceedings, over and above the inappropriate nature of the question?

  • Nesson almost had the opportunity to press the case they way they wanted to, and that expectation was in place when Joel was on the stand — only to have that expectation removed by an inappropriate ruling by Gertner just before summation.

  • There are certain advantages to the fact that Joel’s case was attempted on the “pure principle” basis on which it was presented. The principles can remain alive in the appeal process. I think that ince Gertner has ruled that the jury would decide liability, you should appeal on the bases I describe in my immediately previous comments, not simply on the basis of the nature of the jury form. You really were given the opportunity to press the case the way you wanted to, directly to the jury, like in a criminal proceeding. Joel was questioned under that expectation, then that expectation was removed by the judge’s invalid ruling of liability. So you should press on the disruption of the integrity of the proceeding, and on the invalid nature of the liability ruling. In addition to the form of the jury form — indeed, I would think that pressing these arguments will buttress an argument about the nature of the jury form, which it seems to me might be more iffy all by itself.

  • You were forced to make a simple, more naked appeal for jury nullification, because Gertner had taken away the case you had thought you could present while during Joel’s testimony.

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