Guest Post by Willis Eschenbach
I did jail time in the Sixties for a peaceful sit-in against the Vietnam War. So (as with many things) my understanding of the issues involved in what may be termed “civil disobedience” is eminently practical as well as theoretical. I was very disturbed by a recent column in the New York Times by Kirk Johnson entitled “Do Motives Matter?” It discussed the DeChristopher case. I reproduce it in its entirety and discuss it below.
Do Motives Matter? The DeChristopher Verdict
Tim DeChristopher hugged supporters as he left a courthouse in Salt Lake City after his conviction. Associated Press Photo
The American legal system tends to pay obsessive attention to a person’s motives and mental state. A hate crime, for example, only becomes a hate crime at all with motive. Premeditated offenses often get harsher treatment than impulsive acts of rage or passion. The capacity to understand right and wrong is a fundamental threshold of competency in a courtroom.
OK, let’s stop right there. Part of that is simply untrue. In addition, he is conflating motive, premeditation, mental competence, and intent.
The American legal system pays almost no attention to motive. The only crime I can think of in which a person’s motives make a difference is a “hate crime”. This is a recent addition to the law. But if you murder someone, or steal their wallet, your motive is meaningless. You might have stolen to impress your girlfriend. You might need the money to feed your kids. Doesn’t matter, the jury will never hear about your motive. The only question the jury ever considers is “did you do it”, not “why did you do it”.
While premeditation and mental competence and intent are certainly issues to which the law pays “obsessive attention”, they have nothing to do with motive. All they are doing in his essay is confusing the issue. In general the person’s motive for doing something whether a person had noble reasons for committing a crime is legally immaterial to the jury. If motive enters into the record at all, it is only and solely in the sentencing phase, after the person has been found guilty and the jury sent home. Thus the judge acted correctly in doing what Kirk Johnson describes in mildly accusatory accusatory undertones as:
But in the federal trial of Tim DeChristopher, who was convicted on Thursday in Salt Lake City on two felony charges for trying to derail an auction oil and gas leases in southern Utah in late 2008, discussion of motive – at least so far as the jury got to hear – was almost entirely stripped away.
Judge Dee Benson told the lawyers that the case would not be about why Mr. DeChristopher did what he did, but only whether he did it. Federal energy policies and concern about climate change, which were in fact the core drivers of Mr. DeChristopher’s actions, as he has said in many interviews, would not be put on trial, Judge Benson ruled.
And he properly ruled so. DeChristopher’s motives are not relevant to the jury’s deliberations.
Does it matter? In covering the case for The New York Times, I found myself pondering a pretty deep question: In assessing offenses driven by environmental concerns, is an understanding of the “why” crucial to the truth? Or is it a huge distraction because of the politics and complexity and controversy that swirl around the subject?
Is his motive “crucial to the truth” or a “huge distraction”? I would say neither. I would say that an understanding of his motive in the context of what is called “noble cause corruption” is useful in understanding the current sorry state of climate science. In either case his motive does not matter to the law, nor should it.
Would the jury have assessed things differently if the defendant’s deeper psychological portrait had emerged – specifically his belief that risks to the planet and the future are so dire and urgent that rules must be broken?
Or is the “rule of law,” as an assistant United States attorney, John W. Huber, put in it his closing argument, crucial to civil society — the linchpin of protecting everything we have, including and perhaps especially the environment?
I have no sympathy with this argument at all. Why on earth should I care about Mr. DeChristopher’s “deeper psychological portrait”? I don’t generally turn over rocks if I fear that there are strange things under them … I’m not interested in what lies under Mr. DeChristopher’s actions. I have enough problems with the creatures that live under my own skullcap, I have no interest in the unknown denizens of Mr. DeChristopher’s cranium.
Certainly, Mr. DeChristopher, a 29-year-old economics graduate, is no eco-terrorist. This was not an Earth Liberation Front firebombing; the closest he got to violence was raising his bidding paddle at the auction to buy land leases with money he didn’t have. But there was also little doubt, as he had also conceded in interviews, that he broke the law by signing federal forms while posing as a legitimate energy buyer, and then by bidding successfully for upward of $1.8 million in leases from the federal Bureau of Land Management.
Again, I’m not clear what the relevance of this is. He is not an eco-terrorist. He is also not a kidnapper or a child molester … so what? What does that have to do with his case? Is he saying we should have sympathy for him because he is a “white collar criminal”? Because I generally have less sympathy for that breed of crook, not more. I’ll take an honest bank robber over a bank accountant who steals the same amount of money, any time.
In a statement after the verdict, the United States attorney for Utah, Carlie Christensen, addressed part of this debate, one that will no doubt continue in Mr. DeChristopher’s probable appeal. “Whether the B.L.M. was correct in its decision to offer these parcels for oil and gas lease sales was not the question which this jury was asked to resolve,” Ms. Christensen said.
Nor should they be asked to resolve it. It is not a question for the jury.
Look, I have no problem with Mr. DeChristopher’s actions. As I mentioned, I did the same myself, and I did time for it. As we said then, if you can’t do the time, don’t do the crime. However, I never heard the New York Times opining that the judge should have considered my motives in deciding my guilt or innocence. It didn’t matter. I was guilty. As is DeChristopher.
What I have a problem with is when this kind of thinking slops over into the scientific arena. You see, if a scientist thinks it is ethical to break the laws of civil society in the name of saving the planet, I have absolutely no confidence that the same man will not break the laws of honest, transparent, ethical science in the name of saving the planet. As we have seen, sadly, this more than a thoretical threat.
When this occurs in science, it is called “noble cause corruption”. It occurs when a scientist thinks that their cause (saving the world from Thermageddon) is so important and so noble that it transcends plebeian concerns. Their cause is much more critical and vital and important than, you know, mundane boring things like transparency, and scientific integrity, and archiving data that may not agree with your hypothesis, and revealing adverse results. For scientists like that, those are petty scientific concerns, things that only apply to people who are not engaged on a mission from Gaia.
This noble cause corruption, amply personified by Michael Mann, Phil Jones, Gene Wahl, Caspar Amman, Gavin Schmidt, James Hansen, Stephen Schneider, Lonnie Thompson, and far too many other leading lights of AGW orthodoxy, has been the root cause of the mistrust of the public in climate science.
And reasonably so. When the public sees top-notch, world-renowned climate scientists lying and cheating and breaking the rules and stuffing the peer-review panels and subverting the IPCC, what do you think will happen to the reputation of the field?
Judith Curry and others keep presenting this as a communications problem. It is not. The AGW folks think the problem is that they’re not getting the word out. So they’ve formed some kind of Guerrilla AGW Killer Rapid Response Ninja Suicide Death Commando Team to answer questions, at least I think that’s the name … guys, lack of AGW scientific opinion is not a problem as far as I can see, quite the opposite. We’ve heard your scientific claims of upcoming catastrophe proclaimed at full volume over and over. And over. And over. The problem is not that your message is not getting across. We hear it. It’s crystal clear, no problem with either the medium or the message. RST is five by five, as the ham radio operators have it.
But most folks simply don’t believe anything you say. You’ve lied to everyone before, you conned us in the past, people are determined it won’t happen again.
The problem is that a large number of the top names in the field have been shown to be, well, liars, cheats, and thieves. They were working hard, in secret, using deplorable, unethical, and likely illegal tactics to advance their noble cause and to protect their secrets and their data and methods.
Now, if that were all, it would be bad. But it is worse than that. If, when all that was revealed, the rest of the honest, decent climate scientists had stood up and pointed and said “For Shame!”, the breach in trust could have been repaired. If the miscreants were identified and disowned by the majority of climate scientists, there would have been problems, but not huge problems.
But that’s not what happened. When the Climategate rock was rolled over, and the UEA nest of scorpions was revealed and they started running from the sunlight, with few and notable exceptions the good, decent, honest climate scientists suddenly found something else really fascinating to talk about. About how it was just boys being boys. About how it was just scientists talking trash about each other in private. About how Climategate meant nothing. About how the use of “hacked” emails was unethical. The overwhelming majority of the good honest decent AGW supporters talked volubly about everything under the sun … everything except the putrid scientific rot Climategate revealed within the top ranks. Nor did they say a peep about a succession of ludicrous whitewash investigations apparently led by Inspector Clouseau of “Pink Panther” fame … silence and closing the ranks was the order of the day.
So as a result much of the general public in the US at least believes that all climate scientists are crooks. They’re not. They’re mostly just reasonable, curious scientists who tragically were unwilling to speak up for scientific honesty and integrity when history called on them to do so. And as the saying goes, for scorpions to succeed, all that is necessary is for good climate scientists to do nothing.
After all of that, anyone who thinks that what we have is a communications problem, or that it can be solved by better scientific explanations, or that it can be fixed by reframing the discussion, is seriously deluding themselves. Someday, good science will eventually win out. Not communication. Not reframing. Good science.
But until then, I can assure you that if a climate scientist says it’s raining outside, any reasonable person will surreptitiously glance out the window …
w.
[Update] There is an outstanding comment below:
Turn this around when thinking about the “profit motive” such that the “profit motive” were a valid legal defense. A really scary thought, that one is.
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Smoking Frog says:
March 13, 2011 at 12:29 am
Johanna I cannot speak for the US legal system, but in the UK and Australian systems, motive may be very relevant to whether a person is convicted in certain cases. The classic example is where someone is charged with assault/manslaughter/murder and they plead self-defence. Self defence, if accepted, may result in acquittal even if the act undoubtedly occurred.
In the US, at least, whether the killer acted in self-defense is not a question of motive. He only acted in self-defense if his life was in imminent danger. For example, suppose I see you with a gun, and I believe that anyone carrying a gun puts my life in danger, so I kill you. That’s not self-defense. There may be an out for a killer who had good reason to believe that his life was in imminent danger, even though it was not, but that doesn’t depend on the question of motive, either.
I’ll be surprised if this is significantly different in the UK or Australia. It sounds to me like you misunderstand the concept of motive.
————————————————-
Well, ‘motive’ at its most basic means ‘the thing that makes movement’. If someone is trying to kill you and you respond by killing them, your motive is pretty clear. The fact that a motive (as in some of your your examples) is inadequate is neither here nor there. The point is – as several PPs have said – that motive can be very relevant to legal proceedings, especially where crimes against a person are involved.
In legal systems based on the English law (including that of the US), motive is rightly discounted for other crimes. It does not matter whether you held up the bank because your mother was dying, or because you wanted to spend the money in Vegas. You are still guilty. It might affect the sentencing, though.
As an aside (Willis is indulgent to asides, I suspect) – one of the best things about Scots Law is that there is an alternative to ‘guilty/not guilty’. A Scots jury can also render a verdict of ‘not proven’ – a testament to the subtle minds of that great culture. It means, ‘OK, the prosecution could not prove beyond doubt that you did it, but we, the jury, know that you are lying through your three remaining teeth, you scum’ – although there are much more high falutin ways of putting it. It mitigates against known criminals and their lawyers parading on the courthouse steps saying things like “I have been found to be innocent” and “My client has left without a stain on his reputation”. Everyone knows what ‘not proven’ means. It also helps to avoid hung juries.
As for the Vietnam War, it is paradoxical that the people who would never give up if someone invaded the US cannot understand that people in another country would react in the same way.
R. Gates points to an article by the inestimable Tim Wise, quote:
“Whether or not Loughner was influenced directly by any of these words, these verbal daggers aimed at civil discourse, is quite beside the point.” After several paragraphs of polemical blather Mr. Wise gets to the point. He doesn’t have one. The whole article is just his cover for spouting a liberal diatribe against other opinonators with whom he disagrees..
Mr. Bateman’s comment about the inability of computer models to produce verifiable results, unlike a roof that produces immediate, directly observable results is not paranoia. Just a simple observation that computer models of the climate are highly limited and often misused. Gates’ paranoia exists only at the margins of society because only a small, marginal fraction has the experience, education, and intelligence to understand propaganda and be afraid of it. It is not paranoia when “they actually are out to get you”. The President hinmself on several occassions has said words to the effect that “I want to make energy much more expensive”. You can’t get any more clear. He wants to transform society in basic ways that the majority of Americans do not want and never intended ecause he did not campaign honestly.
Mr. Obama’s misrepresentations of his true intentions(Yes we can fix America’s problems), lack of experience, poor decision making, bad selection of advisors, and dithering are real threats to our security. Concern is not paranoia.
The various scientists who have misused data, fudged results, interfered with peer review, deleted emails, and other misconduct have only themselves to blame. If the science really was “settled”, as say the methods needed to calculate planetary orbits are, we wouldn’t be having this debate. The terrible disaster in Japan has shown that we can measure a position on the globe to fractions of a millimeter, but that knowledge can’t be translated into any useful analysis of what it might mean for the climate.(keeping on topic).
johanna says:
March 13, 2011 at 11:56 am
“I am not aligned with any of the religions mentioned. But suggesting that Islam condones lying is just ludicrous.”
Look up “taqqiya.”
Thanks for the update, Willis!
The little weasel committed fraud. Motivation is irrelevant. Bang the gavel: GUILTY. Put him in prison with other criminals, for a long time. Next………
johanna says:
“‘Excluding Islam, almost every surviving old religion on Earth, from Bon to Hinduism to Buddhism to Christianity, condemns lying’
————————————————————-
“Excluding Islam?
“I am not aligned with any of the religions mentioned. But suggesting that Islam condones lying is just ludicrous.”
No, it isn’t. The practice is called Al-taqiyya, a Shia concept, and is permitted in certain situations, including to further the cause of Islam (supposedly the ends justify the means). The Koran offers several examples of permissible lying, which radicals have interpreted as loosely, and harmfully, as possible.
Pamela Gray says:
“Anton, I actually agree with your statement about bibles. Some follow it like they have bull ring in their nose attached to the thing. What I have come to understand is that we all, regardless of creed, have our bibles, don’t we. I hold mine loosely yet still find it instructive and wise, even in its trumpeting of stories made of whole cloth and pure fiction inside it’s well-worn pages.”
I’m glad for you, but I’ve never found any story that has helped guide me in moral situations. I don’t kill because I don’t believe in killing; I don’t lie because I don’t believe in lying; I don’t steal because I don’t believe in stealing. True, a lifetime of reading about comparative religions, and particularly about specific spiritual subjects of interest to me, has contributed to my outlook, but I have a pretty good ability to empathize with others, and my conscience won’t let me do the things so many other people seem to have no problem with.
For some reason, I don’t believe anyone ever gets away with anything. Nobody else may know what someone has done, but he or she does, and will eventually have to face it and its consequences. The subconscious never forgets anything, and is not forgiving. Neither, apparently, is the superconscious.
Anonymous,
How right you are about ‘true believers’.
In 1986 I wr0te a piece in a newsletter criticising the Soviet Authorities for trying to cover up the Chernobyl accident for around two weeks before evidence from elsewhere became incontrovertible.
This was at the height of the Cold War and the newsletter was that of a local group campaigning against nuclear weapons (a cause I believe in). I was publicly berated in the street by supposed supporters of the campaign because I had criticised the SU whilst their logic was that the Cold War was all the responsibility of the US. They ignored completely the facts of the accident at Chernobyl and its possible effects on peoples arouind Europe. A number of them even resigned from the local group in protest.
Brian H says:
March 13, 2011 at 3:49 am
Mike Lorry you say
Yeah, he didn’t win because he had balls of steel and fought for 50 years in conditions that would have left you and me dead. He won because he was “handed the prize” and he didn’t behave like Mike says true warriors behave.
Like James Taylor said, “maybe you can believe that if it helps you to sleep”. Me, I’m more of a realist. He won because he was a fanatic who absolutely refused to stop.
And for the accusation that he and his men didn’t “behave as warriors”? Please, it makes you look like a petulant child. He didn’t fight the way we fought, it’s true. He also won. I can see that drives you nuts, but there it is. Ho could have been a true warrior that you might approve of, he might have fought like Lt. Calley or General Westmorland, but he didn’t. He wasn’t fighting to win prizes for good behavior. He was fighting to win, and like the US, he fought dirty.
Guys, I’ve got what may be news for you. Claims that the US held the high moral ground in Vietnam are generally not believed these days. Claiming that you were a warrior and Ho wasn’t? Please. We were on the losing side of an ugly war, but that doesn’t mean you get to pretend that we were also on the moral side of that war. It doesn’t mean you can claim we lost because the other side didn’t follow the rules, because they didn’t play fair, because they were just pretending to be warriors, because Ho got it handed to him … cry me a river. You may not have noticed, but all that does makes you bad losers of a war instead of just losers of a war.
Look, I didn’t like Ho either, I didn’t say he was a moral guide or a good guy, why are you on my case? When a man gets as nervous and jumpy as you two, just because I say Ho was a brutal and dedicated unstoppable warrior who fought for fifty years for the independence of his country and finally won it at the end of half a century (a demonstrably true statement), it makes me wonder if you gents really are the he-men you seem to want me to think you are.
Because the real warriors I’ve known don’t get all twitchy and upset by a passing random comment on the internet like you two have. They have nothing to prove because in fact they are real warriors. They don’t mind if someone praises their enemy, because they respect him even though they may not like him or approve of his tactics. And when they lose, they don’t run around making excuses about ‘he’s not a reeeal warrior’ and ‘waaaa, he didn’t really win it, he had it handed to him’ like you guys would have us believe.
But I don’t care if you are or you aren’t real warriors. Truly, it is immaterial to me. You want to lecture me passionately about why Ho is not a warrior, I’ll listen politely and wonder why on earth you should care. I’m just perplexed that this has gotten you worked up … truly, you guys need to think about what it is that’s got you so upset, because it’s not me — I don’t like Ho either.
w.
Brian H says:
March 13, 2011 at 4:08 am
Well, that’s because you don’t understand my position. When did I say there wasn’t or shouldn’t be a way for juries to nullify the law? I just said that nullification is a complex subject that has a downside as well as an upside. I didn’t say we should get rid of jury nullification. QUOTE WHAT I SAID, I can’t fight against your fantasies.
w.
johanna says:
March 13, 2011 at 11:56 am
I have no idea if the Koran forbids lying. But johanna, the apposite quote is not what you claim. The apposite quote here would be the quote that supports your claim, some quote from the Koran enjoining people not to lie. Bring that quote out, and you’ve won your point. Don’t bring it out, and you’re just waving your hands.
w.
Johanna said, “As for the Vietnam War, it is paradoxical that the people who would never give up if someone invaded the US cannot understand that people in another country would react in the same way.”
My dear, I am a rare patriot, one who actually swears allegiance to the Constitution, not to a flag, or to one’s own tribal group, labor union, church, or political party or casus belli. There are few of us left. Most in this country are sold out to the proposition that their own political agenda, or their own entitlements, are worth trading every liberty for. I recognise that when the day comes when the State comes to seize my arms, property, my liberty, etc that I will refuse to cooperate, I will strike down my oppressors, but I will also be vilified by the press and my fellow man as a criminal for doing so. I accept my fate.
What’s the big deal, here?
Just what is so wrong about “Noble Cause Corruption,” “Confirmation Bias,” and the plain old deceitful arts of lying, making up data, and hiding things like declines? Hell, about everyone does it now-days. Watch the senators in Wisconsin go to a different state to avoid doing their job of voting (screw democracy!). Watch your Congressman or Senator vote for bills (s)he has never read. Watch the Dept. of Justice wink at thugs trying to influence elections. And in 2011 we have actually come to EXPECT politicians to lie (and boy, do we have some top experts at the top, right now!). Some corruption is just normal, after all. Who cares?
I mean, if you really believe your cause is noble, why should you not go all out to support it? Especially when humanity or Planet Earth hangs in the balance! A little data manipulating, coercion, bribing, and lying can always be “explained away” by an appropriately selected panel or lawyer. It’s virtually impossible to prove scientific fraud, unless someone is egregiously passing out government money to everyone in sight (well, I doubt that even most of that is noticed). And lies aren’t even newsworthy anymore.
I think it is clearly damn hard to get into any serious trouble (like jail or fines) these days, as long your cause is noble—and especially if the government has your back. Even if your cause is not so noble, you can always play an appropriate “card,” like the race card, the xenophobe card, the homophobe card, etc. The end justifies the means, no?
So just how can some of you folks condemn the poor working scientists who are simply defending their noble causes? What gives you some “moral high ground” to condemn their kind of science? What right do you have to demand others follow your moral system? It’s all relative, after all.
Willis, you say:
“So as a result much of the general public in the US at least believes that all climate scientists are crooks.”
==========
I would say most of the general public in the US has no idea of the policies being foist
upon them in the name of climate “guilt”.
God forbid they ever hear of a “climate crook”.
The spelling is “taqiyya.” Please pardon my error above.
jae says: March 13, 2011 at 3:12 pm
[What’s the big deal, here? Just what is so wrong about “—–Noble Cause Corruption So just how can some of you folks condemn the poor working scientists who are simply defending their noble causes? What gives you some “moral high ground” to condemn their kind of science? What right do you have to demand others follow your moral system? It’s all relative, after all.]
———————————————————————–
Jae. Yeah Riiiiiiight!!!!
Douglas
Willis:
I have no idea if the Koran forbids lying. But johanna, the apposite quote is not what you claim. The apposite quote here would be the quote that supports your claim, some quote from the Koran enjoining people not to lie. Bring that quote out, and you’ve won your point. Don’t bring it out, and you’re just waving your hands.
I believe that this is the reference that the poster was referring to:
http://www.thereligionofpeace.com/Quran/011-taqiyya.htm
Muslim scholars teach that Muslims should generally be truthful to each other, unless the purpose of lying is to “smooth over differences.”
There are two forms of lying to non-believers that are permitted under certain circumstances, taqiyya and kitman. These circumstances are typically those that advance the cause Islam – in some cases by gaining the trust of non-believers in order to draw out their vulnerability and defeat them.
So, generally don’t lie to other muslims unless it’s the “white lie” sort of thing, but lying to the enemy is permissable and even desirable. Many references to the various citations there.
This is is perhaps the most obvious on its face.
Reliance of the Traveler (p. 746 – 8.2) – “Speaking is a means to achieve objectives. If a praiseworthy aim is attainable through both telling the truth and lying, it is unlawful to accomplish through lying because there is no need for it. When it is possible to achieve such an aim by lying but not by telling the truth, it is permissible to lie if attaining the goal is permissible (N:i.e. when the purpose of lying is to circumvent someone who is preventing one from doing something permissible), and obligatory to lie if the goal is obligatory… it is religiously precautionary in all cases to employ words that give a misleading impression…
Mike Lorrey says:
March 13, 2011 at 3:01 pm
“My dear, I am a rare patriot, one who actually swears allegiance to the Constitution, not to a flag, or to one’s own tribal group, labor union, church, or political party or casus belli. There are few of us left.”
Maybe more than you think but I suppose they’re easier to find where I live (Texas) where school children still don’t have a choice about reciting the pledge of allegiance every morning (unless a parent or guardian files a written request to excuse them from it). There are only 6 states left that do that:
http://undergod.procon.org/view.resource.php?resourceID=000074
Anyone in the military (there’s a lot of us – me USMC 1974-1978) had to make a bit more solemn oath:
Note there’s no expiration date on the military oath to defend the consitution so a man or woman of high integrity must consider themselves bound for life. Then again I enlisted voluntarily. I’m not sure how I’d feel if I were drafted and forced to recite the oath but I have to believe a forced oath is no oath at all. Kids that are forced to recite the pledge of allegiance might feel the same but at least they’re reminded about 200 mornings per year for 12 years of the country they’re beholden to for their freedoms.
@willis
“He won because he was a fanatic who absolutely refused to stop.”
That’s pretty naive. He (Ho Chi Minh) won because we weren’t allowed to do what was necessary to win. Hirohito was fanatical about winning too but Truman didn’t pull any punches thank God and Hirohito’s fanaticism faded pretty quick. Our targets in the North Vietnam were highly restricted. A few dams in particular if they’d been taken out would have crippled the North almost beyond comprehension. Johnson often bragged, ‘Those boys can’t hit an outhouse without my permission.’ Indeed, even in South Vietnam the rules of engagement were ridiculous. I remember my company commander in Marine Corps boot camp in 1974 telling us how he’d been going down a road in a jeep and took some fire from a rice paddy. He spotted the perp with a rifle 200 yards away and shot him dead. Then he and his men had to wade out into that rice paddy and frantically search for the perp’s rifle laying somewhere on the bottom of the muck all the while exposed to fire from any other guerillas in the area. They found the rifle and got away unharmed but if they hadn’t found it the young lieutenant was subject to court-martial from his own side.
kcrucible says:
March 13, 2011 at 6:05 pm
Thanks, kcrucible. Facts beat fantasies regarding what the Koran says, or anything else for that matter.
w.
Stephen Richards says:
March 13, 2011 at 4:51 am
“It is neither the jury’s right or role to pass judgement on or to change the law.”
Whether it’s a right is arguable. Whether it’s a power is not. A juror cannot be compelled to explain why he reached one verdict or another nor can he be punished for reaching a verdict that the judge finds incredible.
“You are there to assess the evidence against the law as written under the guidance of the Judge.”
It should be codified in law somewhere then. Got a statute number?
“ONLY A JUDGE has the opportunity to modify the law through the unusual circumstances of a particular case based on the veidence of that case and that can most often only occur by rfeference to the highest court of your country.”
Most judges prefer it that way but jurors have the de-facto power to take the opportunity onto themselves.
“No matter what Springer may have said in the jury room he was not in a position to carry out his threat and if expressed in the presence of the judge could have EVENTUALLY been held in contempt.”
He’d have to prove I actually did it. Jury deliberations are nominally held secret so I’d have had to made it plain in the deliberation room I had no doubt the defendant committed the crime but was refusing to reach that verdict because I didn’t agree with the law, another juror would have had to rat me out to the judge, and the judge would have had to done something extremely rare in holding me in comtempt rather than just dismissing me for misconduct and replacing me with an alternate. I doubt I would have stood on principle long enough to risk contempt – I’d have just said “not guilty” because I didn’t think the evidence was sufficient. Nothing a judge can do about that and that is why they don’t hold people in contempt for jury nullification because jurors will just stay silent and nullify in stealth.
“Evidence only for the jurists.”
Again, got statute?
@Stephan Richards
Here’s a hypothetical for you. In 1850 the Fugitive Slave Act made it a punishable offense ($1000 fine, which is like $50,000 today) for any law enforcement officer who refused to arrest a runaway slave. A runaway slave was designated solely by a sworm affidavit from the owner of his ownership. The arrested slave was not allowed to contest the affidavit in any way. So you’re a law officer and someone you don’t know comes to your office and swears out an affidavit saying a black man or woman residing in your juridiction is a runaway slave. If you don’t go arrest the man without any question or hesitation, knowing full well the black man will be taken away in chains by the man who swears to own him, that there is no legal means for the alleged slave to dispute the ownership claim, you yourself will have your life ruined should you be found guilty of violating the Fugitive Slave Act.
Not surprisingly few northern law enforcement officials arrested runaway slaves and also not surprisingly few juries found them guilty of any offense. The law was an ass and juries nullified it. This is the power we have as jurors. You may not like it but the alternative is even less palatable – it makes a mockery of the right to a trial by a jury of peers to tell them they are compelled to convict a morally blameless man. We are not robots under the law – the law is a robot under us.
Many free blacks residing in northern states were conscripted into slavery in this manner.
If you were sitting on a jury hearing the evidence against a marshall accused of refusing to arrest an alleged runaway slave and the evidence was clear the marshall was guilty would you ruin his life for an act of conscience or would you perhaps listen to your own conscience and nullify the Fugitive Slave Act?
Whether we have an inalienable right to nullify the law when the law’s an ass is arguable. Whether we have the power to do it is not arguable – we do. The only real question is whether jurors should be explicitely instructed that they have this power.
Dave Springer says:
March 13, 2011 at 6:40 pm
And Truman didn’t pull any punches in Korea either, and he got smacked in the teeth and went home. Not clear what Truman has to do with anything.
Ho Chi Minh and his friends had fought for forty-five years when the US entered the war. They had fought when they had noting at all and were a tiny group opposed to the Chinese. They had fought the Japanese in small guerilla bands, living off the countryside and the people. They had fought against the best that the French had at Dien Bien Phu, and killed or captured every one. They had taken everything that the Chinese had thrown against them. The Japanese certainly didn’t pull any punches, and Ho beat them. The French tried pulling out all the stops and had their butts handed to them.
So while you think knocking out a couple of dams would make Ho and his men say “Gosh, we’ve been fighting for fifty years for this, but boy, without those dams we’ll just have to give up”, I am not nearly as sanguine.
You think that we could have won by denying Ho and his men stuff. Things. Dams. Buildings. But Ho never won by having stuff, things, the usual materiels of war. His opponents, from day one, always had all the stuff, the tanks, the ships, the airplanes. Every one of his opponents had much, much, much more stuff than he had. More guns, more men, more equipment, more uniforms, more food, more tanks, more airplanes, more mortars, more of every single thing. He was used to having nothing and still winning. Denying a modern army of “stuff” will stop it in its tracks. Not Ho and the way he fought.
He won the way that the Russians won Stalingrad — by making something out of nothing. Here’s a joke from the time that you may have heard.
Up by Hanoi, they give a guy some black pajamas and a bicycle and a pair of sandals and a big old artillery shell that weighs 80 pounds (50 kg). They send him off down the Ho Chi Minh trail to Saigon. Day after day, he rides some, but mostly walks the damn shell south. He endures bombings from planes up so high he can’t even see them. Week after week he toils. Going up hills is endless work, dragging the shell along. He endures mines sown across the trail. He hides during the day and travels at night. Planes come overhead and drop chemicals. Trees shed their leaves. He hides under rocks. He sleeps in the day covered with sticks, invisible from the air. The weeks drag on.
Three quarters of the way there, a nearby bomb nearly kills him, and the bike is destroyed. He straps the artillery shell on his back. He walks and walks. Finally, almost exhausted, his sandals worn out and his pajamas patched and torn and patched again, he nears Saigon. He gets directions to the artillery. When he gets there a battle is raging, the big gun is firing shells. He goes up to the artillery captain. He gives him the shell. The Captain gives the shell to the Sergeant, who puts it in the cannon and pulls the lanyard. BOOM! The man in the black pajamas is overjoyed to see what he has contributed to the war. He stands with his eyes wide and his ears ringing with joy. And cannon fire. The Captain turns his way after a moment, notices him there, and says “What are you standing around for, man? Go get me another shell!”
That was the joke, but it was also the reality. And on the ground, the man in the black pajamas would have turned around and walked straight to Hanoi and brought back another shell. And another after that, and another.
Now, if you think blowing out some dams would have stopped that kind of single-minded dedication, I fear I can’t agree. Dave, we couldn’t stop them when we owned the town they lived in. As you likely know, they just built a town underground and kept on going. Right under the feet of the American soldiers walking around on the surface. The Cu Chi tunnels totalled some two hundred to three hundred kilometres (120 to 180 miles) of tunnels. Can you imagine the dedication of the men who dug those, using only hand tools?
That is why the loss of a couple dams would mean nothing. The factories in the north had all been moved underground, tunnels were built all over the north underneath villages … here’s an example:
That’s what the US never, ever understood. These were fanatical people who had been fighting, against all odds, and against powerful, wealthy, industrialized, mechanized opposing forces, for fifty years when we stupidly entered the fray. Not only that, they were fighting to throw foreign invaders out of their homeland, which would make any man a raging fanatic.
Given all of that, the loss of some dams and electrical generation would have meant nothing. The fight would have continued no matter what we did, short of killing every human being in North Vietnam. And even then, that would have left all of the Viet Cong and NVA forces in South Vietnam still squirreled away in their tunnels and working as waiters and translators in the Embassy and living in villages and infiltrated throughout South Vietnamese society.
So while it is tempting to think that air power applied liberally to North Vietnam would have broken their will and ended their ability to fight, that same air power applied incredibly liberally to South Vietnam, combined with lots and lots of troops and tanks and jets and all the weapons of war, hadn’t broken their will or ended their ability to fight … so why do you think it would have worked in the North when it hadn’t worked in the South?
In fact, it was that delusion that got us in so deep. Our military kept saying “If we just apply a little more pressure, they’ll fold. If we just interdict a few more supply lines, or assassinate a few more Viet-Cong farmers, or bomb a few more areas, or defoliate a few more square miles, or bring over 50,000 more US troops, they’re done.” Remember the famous “Light at the end of the tunnel”? The idea that “if only we had been free to bomb” is the postwar equivalent of that claim, that just a bit more pressure and they would have quit.
But no matter how much territory we defoliated, and no matter how many villages we had to destroy in order to save them, did you notice any weakening in the resolve of Ho Chi Minh and his men? Because I didn’t, they were like the dang Energizer Bunny of warfare.
And that’s what defeated us. They were willing to fight the US in Vietnam for another fifty years regardless of the conditions. Hardly a single person in the US was willing to fight in Vietnam for another fifty years under any conditions. So they could outlast us, and they knew they could outlast us, and they did outlast us. As they would have done even if we’d bombed every dam north of the DMZ.
My best to you,
w.
johanna,
The legal defense of self-defense is an example of what the law calls exculpatory defense, or defense of necessity. To say that it depends on motive is to entertain the absurdity of a person faced with the necessity of defending himself but having some other motive for the violence that he commits, such that it matters to his guilt or innocence. Suppose he cares nothing at all for defending himself; he is a radical pacifist. In that case, you may say, he lacked the motive and therefore lacked the “necessity”; actually he wants to reduce the number of Republicans, and the person who attacked him was a Republican. So we’re talking about a radical pacifist who seizes the opportunity to kill someone in circumstances in which anyone else would have the motive of self-defense. How crazy is that? The fact is that he acted so as to defend himself.
Well, ‘motive’ at its most basic means ‘the thing that makes movement’. If someone is trying to kill you and you respond by killing them, your motive is pretty clear. The fact that a motive (as in some of your your examples) is inadequate is neither here nor there. The point is – as several PPs have said – that motive can be very relevant to legal proceedings, especially where crimes against a person are involved.
You’re telling me that the motive is implied by the facts “trying to kill you…you respond by killing them.” That gets rid of the question of motive. If everyone who acts so as to defend himself has the motive of defending himself, motive is irrelevant. It is only relevant if some people who act so as to defend themselves lack the motive of defending themselves – but those would be crazy people. Whether the defendant acted in self-defense is a question of fact, not motive. I said it before, and I’ll say it again: You don’t understand the issue.
Prior to this message, I only offered one example, so there is no “some of your examples.”
Everyone knows what ‘not proven’ means. It also helps to avoid hung juries.
I doubt that it helps to avoid hung juries. According to Wikipedia, Scottish juries render verdicts by simple majority, there are 15 jurors, and anything less than 8 “guilty” votes is an acquittal.
As for the Vietnam War, it is paradoxical that the people who would never give up if someone invaded the US cannot understand that people in another country would react in the same way.
I didn’t say anything about the Vietnam War.
Dave, another thought for you. You say:
Truman stopped the Japanese by being willing to immolate entire cities of civilians. The firebombing of Tokyo killed more civilians in one night than either of the atomic bombs, but even that didn’t stop the Japanese. Not until the atomic bomb was dropped did they surrender. Shows the fanaticism of people defending their homeland.
In the 1960s, neither of those were available as military options. Then, as now, the killing of civilians had come to be seen as reprehensible. So although Truman “didn’t pull any punches”, the US didn’t have that option in Vietnam. For example, firebombing Hanoi wouldn’t have played well on the world stage, you know what I mean.
So I fear your example doesn’t really apply.
w.
The history of Vietnam is a complex history. Moral High ground, is rarely clear in complex international politics. Small nations often become pawns for more powerfull nations. What happened after we left Vietnam does give some indication that the communist way leaves little room for liberty. http://www.jim.com/ChomskyLiesCites/When_we_knew_what_happened_in_Vietnam.htm The “boat people” followed the reeducation camps. What happened in Cambodia was far worse.
In Japan the US was faced with the terrible option of a ground invasion, or the use of atomic bombs. I am forever grateful I have never had to face such terrible choices.
willis said:
Excluding Islam?
I am not aligned with any of the religions mentioned. But suggesting that Islam condones lying is just ludicrous.
Perhaps the quote about the mote in one’s own eye is apposite here.
I have no idea if the Koran forbids lying. But johanna, the apposite quote is not what you claim. The apposite quote here would be the quote that supports your claim, some quote from the Koran enjoining people not to lie. Bring that quote out, and you’ve won your point. Don’t bring it out, and you’re just waving your hands.
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Willis, I am disappointed that you have allowed people to use quotes from a hate site like thereligionof peace.com (tagline – and a big stack of dead bodies) without challenge, while challenging my contention that Islam, like all other major religions, regards truthfulness as a virtue.
Cherrypicking a few quotes from 1400 years of theological history and claiming that this represents an entire religion is about as valid as declaring that the views of one of the many subsets of Christianity (some of which have been, to put it politely, pretty weird) exemplifies Christianity.
As far as ‘taqiyya’ is concerned, a more balanced view from Webster’s dictionary is available here:
http://www.websters-online-dictionary.org/definitions/TAQIYYA?cx=partner-pub-0939450753529744%3Av0qd01-tdlq&cof=FORID%3A9&ie=UTF-8&q=TAQIYYA&sa=Search#906
Extract:
”
Within Shi’ite Islamic tradition, the concept of Taqiyya (التقية – ‘fear, guard against’) refers to a dispensation allowing believers to conceal their faith when under threat, persecution or compulsion.
The word “al-Taqiyya” literally means: “Concealing or disguising one’s beliefs, convictions, ideas, feelings, opinions, and/or strategies at a time of imminent danger, whether now or later in time, to save oneself from physical and/or mental injury.” A one-word translation would be “Dissimulation.”
So, it is just like people concealing being Jewish when the Nazis were rounding them up. To suggest that Islam condones lying across the board is absurd. It is an insult to 1.3 billion people who are no more or less likely to lie than anyone else. Do you actually know any Muslims?
Here is the quote from the Koran you requested.
“Truly Allah guides not one who transgresses and lies.” Surah 40:28. In the Hadith, Mohammed was also quoted as saying, “Be honest because honesty leads to goodness, and goodness leads to Paradise. Beware of falsehood because it leads to immorality, and immorality leads to Hell.”
As I stated above, I have no religious affiliations. But I have friends, family and work colleagues who have a range of beliefs. In my experience, professed belief and personal integrity are very different things.