Topic: Law and Civil Liberties

Juror Becomes Fly in the Ointment

It was supposed to be just another federal drug prosecution.  The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade.  The defense attorney said the government agents entrapped his client.  And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened.  The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?” 

That’s a fair question.  It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas [pdf], among many others.  Federal District Court Judge William Young was startled.  He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law.  Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively.  When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.”  Once discovered, that juror was replaced with an alternate–over the objections of defense counsel.  Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.  So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf).  I happen to know and respect Judge Young.  I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin.  I will briefly respond to his substantive arguments below.

1.  Court precedents say jurors have no right to nullify.  Well, yes, that is undeniable.   But that’s like someone saying in 1950 that court precedents tell us that  ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution.  I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way).  Judges do remove jurors from time to time, but there is no punishment.  At least not yet.

2.  Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution.  The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough.  Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification.  Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).

3.  Jury nullification undermines the rule of law.  This is simply another variation of objection #2 above.  There is a logical fallacy to this objection.  Jury nullification is assumed to be improper–so it undermines “the law.”  It is like saying a presidential pardon undermines the “rule of law.”  But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases).  This is the way in which to understand jury nullification.  The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about.  Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases.  Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.

Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases.  But that article has revived a debate that we should all welcome.  For much more on this subject, go here, here, here, and here.

TSA Tracking ID-less Fliers

USA Today reports this morning that the TSA has been making a list of people who fly without ID.

Asked about the program, TSA chief Kip Hawley told USA TODAY in an interview Tuesday that the information helps track potential terrorists who may be “probing the system” by trying to get though checkpoints at various airports.

The report says that TSA changed its policy yesterday and will stop collecting these records, expunging the 16,000+ records collected to date.

The folks at TSA evidently believe fervently that watch-listing is an effective measure against terrorism. When someone behaves inconsistently with their watch-listing program, they take this to be potential terrorism. It’s a mistake.

Let’s say I fervently believed that terrorists were mounting a dengue fever attack on the Capitol Hill area of Washington, D.C., and I placed a perimeter of netting around my house to prevent mosquitoes from getting in. When the mailman or my neighbors opened the netting to come to the front door, I would logically infer (based on my erroneous belief) that they were in league with the terrorists because they were breaching my perimeter. This is the “logic” of the TSA and its suspicion of ID-less travel.

The TSA has set up a system that it wrongly believes to be a security against terrorism, and thinks that evasions or avoidance of its system indicate terrorism. In fact, it’s just people living their lives.

Update on Berwyn Heights Botched Raid

Things are getting worse for Prince George’s County, Md. police officials after last week’s botched no-knock raid (previously chronicled on C@L here). 

Not only did the police not have a warrant to conduct a no-knock raid, but it now appears they were well-aware that a drug ring was delivering large shipments of marijuana to innocent addressees’ homes in the D.C. suburbs. The packages would then be intercepted by other members of the ring, all without the addressees’ knowledge or involvement. Nonetheless, the cops executed their guns-ablazin’ raid on the home of Berwyn Heights mayor Cheye Calvo and his wife Trinity Tomsic, where the cops shot the couple’s black Labs and detained Calvo and his mother-in-law in handcuffs for hours.

The cops have now arrested the delivery truck driver and an accomplice who apparently orchestrated the Berwyn Heights shipment, and P.G. Police Chief Melvin C. High has conceded, “Most likely, [Calvo and Tomsic] were innocent victims.”

Astoundingly, High refuses to admit that police did anything wrong in the raid. He says in today’s Washington Post:

In some quarters, this has been viewed as a flawed police operation and an attack on the mayor, which it is not. This was about an address, this was about a name on a package … and, in fact, our people did not know that this was the home of the mayor and his family until after the fact.

I correct Chief High: When police officers execute a no-knock raid though they have no warrant or cause to do so, when they blast and shoot their way into a home without first learning who lives there, then they’ve carried out a flawed police operation. That’s the case regardless of whether Calvo and Tomsic are guilty of trafficking drugs.

In Prince George’s County, flawed law enforcement isn’t unusual. At least, in this case, the victims of the botched raid may have the social stature to fight back.

UPDATE (8/8): It took a week, but P.G. County police chief Melvin High has finally conceded that Calvo and Tomsic were not involved in drug trafficking.

Unfortunately, Chief High did not issue an apology for the police action or admit that the raid was botched. That raises an interesting question: Is he trying to protect his department, or does he really think the Berwyn Heights incident exemplifies how law enforcement is supposed to act?

The Drug War Kills Innocents

How do I command the scales from the eyes of the drug warriors?

Former Catoite Radley Balko continues his coverage of the war on drugs at Reason. He posted yesterday on the Hit and Run blog about the killing of Tarika Wilson by raiding police officers. When one of them shot a dog, another thought it was hostile gunfire and fired blindly into the room where Wilson and her baby cowered. Now she’s dead.

[This case] shows how layer upon layer of flawed arguments can allow something as unjustifiable as the shooting death of an unarmed woman and the near-killing of her infant son to be dismissed as mere collateral damage. The initial argument is that we need to prohibit drugs to protect people from the harm they cause. That’s followed by the argument that we need to use aggressive, paramilitary raids to apprehend drug dealers, because they might dispose of evidence or shoot cops were drug warrants to be served by less confrontational means. That’s followed by the argument that we have to forgive cops who kill innocent people in these raids because the raids themselves are incredibly volatile and dangerous. Never mind that the police created the danger and volatility in the first place.

Put those arguments together and you get the absurd premise that the government’s killing of Tarika Wilson—and all of the drug raid deaths that came before her—is an acceptable consequence of the government’s responsibility to protect her (and all of us) from the effects of illicit drugs.

Day after day, week after week, Radley reports with remarkably controlled outrage on ‘isolated’ incidents like this.