October 18, 2009

Sunday 091018

Rest Day


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Gregory Cook

Kyle Maynard on MMA, by CrossFit Again Faster, CrossFit Journal Preview - video [wmv] [mov]

Jury Nullification

Post thoughts to comments.

Posted by lauren at October 18, 2009 8:47 AM

Late today...

Comment #1 - Posted by: First Comment at October 17, 2009 9:46 PM

Go Pokes!! Kicked Mizz in da butt

Comment #2 - Posted by: 2nd comment at October 17, 2009 9:48 PM

I love CrossFit.

Comment #3 - Posted by: AllisonNYC at October 17, 2009 9:48 PM

late, but who cares...it's still free...

my hoosiers finally won. Now the bolts need a victory on monday...

Comment #4 - Posted by: Noah Abrahams at October 17, 2009 9:49 PM

I know it's a rest day but still got a little worried about the late posting...

Comment #5 - Posted by: Chris Kokoll at October 17, 2009 10:08 PM

I'm here in the desert.
All I can think about is getting back, building a garage gym, and doing some northwest crossfit.
I look at supplies, prices, schematics. And then I wait..I wait for the WOD.

Comment #6 - Posted by: lkeclvrt at October 17, 2009 10:09 PM

Jury nullification is a breach of the duty jurors owe to the community they represent while acting as a trier of fact. Here's an example of modern jury instructions. Jurors are clearly told to apply the law even if they disapprove of the law. The OJ case was a prime example of juror nullification. These irresponsible people allowed a murderer to walk free simply based on a resentment they had arising from years of police misconduct in their community.

"In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share."

Comment #7 - Posted by: Jeff at October 17, 2009 10:33 PM

Essential tool in our system. Laws cannot be written to include every possible situation...

Comment #8 - Posted by: tim at October 17, 2009 10:55 PM

As Rx'd


Comment #9 - Posted by: JDM Brisbane at October 17, 2009 11:05 PM

What is he in the midst of? Slamball?

Comment #10 - Posted by: Latham M/29 at October 17, 2009 11:51 PM

Actually, the OJ case was not an example of jury nullification; although several other celebrity cases would be. The OJ case was lost because the prosecutorial team made several big mistakes in presenting the facts.

First, there were never any witnesses, good fingerprints or murder weapon found. Second, after proving that the bloody glove found at the scene was worn by the killer, the prosecutor had OJ try the glove in court with latex gloves over his hands. As a result the glove did not fit OJ's hand. This fact put reasonable doubt in the mind of the jurors. The jury was therefore permitted to find OJ innocent. Finally, detective Mark Furman had made racist comments in the past. That might be brushed aside, but the prosecutor told the jury during closing arguments that Furman was a racist. Enough reasonable doubt was created that one could hardly argue jury nullification in this case.

Jury nullification happens when the jury doesn't follow the law. The jury is permitted to decide whether the prosecutor proves the facts. In fact that's their only job.

Comment #11 - Posted by: Michael at October 18, 2009 12:11 AM

In the 15 years I have clerked for the presiding judge of my county, and the hundreds of trials I have handled, jury nullification has not ever come up with any of the juries I have empanneld. It's one of those topics we (court staff) know about, but don't discuss. The Court instructs the jury as to the law appliciable, and a written copy is provided as their guide. Period. Deviation is not acceptable.

Comment #12 - Posted by: Cookie at October 18, 2009 1:26 AM

I hear you brother I think I have built a garage gym on the net 200 times always different and from all the possible websites to get the best idea of who I will buy from.
This is needed day off for sure for me

Comment #13 - Posted by: browland at October 18, 2009 3:18 AM

It is true that strict interpretation of the laws can lead to injustice, but resolving that sort of situation is not the responsiblity of the jury, but of the judge. The judge has the experience to determine how mitigating circumstances should affect the sentencing of someone who has been found guilty by a jury. In Canada that can mean a suspended sentence, which is effectivly no sentence at all. The defendant is still guilty, but the punishment is negligible.
For the jury to consider more than the facts of the case when rendering a verdict means they are stepping way over their bounds and likely impeding the cause of justice.
As the pursuit of justice is a human endevour it is not perfect, but deliberatly suggesting a way for the jury to nullify a verdict makes approaching perfection even harder.

Comment #14 - Posted by: KCN at October 18, 2009 3:58 AM

In my twenty years as an LEO I have rarely heard of jury nullification. However, I have heard of sympathetic jurors. I believe that sometimes when a defendant goes to a jury trial they want to play on the sympathy of the jurors so the jury will find not guilty even when they have truly committed the crime.

At other times though, the defendant requests a judge only and no jury. Because they know when a jury hears the facts of the case they will hang the defendant but a judge will unemotionally "judge" the facts of the case.

Comment #15 - Posted by: Pokey at October 18, 2009 3:58 AM

Having Swine flu is a guarantied way to put a damper on your training.

So within a week, i cut the tip of my finger off with a new knife whilst cutting a carrot (idiot) result, I couldn't lift the bar without it bursting open. Possibly broke a knuckle on the Saturday playing Rugby, No Fran for me on Sunday. The following Friday was running a temp of 39.1c 102F, a wee cough and a sore head for a day. Doc thinks I might have swine flu. Training is out the window at the moment.

Bad luck comes in 3's.

Things can only get better.Lol

Comment #16 - Posted by: Russell (Glasgow) 32/5'8/165 at October 18, 2009 4:06 AM

If, as America's founding fathers believed, liberty is a most valuable blessing, then jury nullification is a necessary protection against arbitrary and capricious government. But the article is wrong to claim that the trial of John Peter Zenger is the most famous case of jury nullification. It may be the most famous to have taken place in the USA, but the trial of William Penn in England in 1670 is much more important in terms of legal history. Penn was prosecuted for disturbing the King's peace by publicly preaching his Quaker views. After trial the jury returned a verdict of not guilty. The judge sent them back and ordered them to return a guilty verdict. They refused. The judge then fined and imprisoned the jury and told them they would held without bread, water, and fire and would not be released until they returned a guilty verdict. The jury persisted in their refusal. The foreman, Edward Bushnell, petitioned for release via a writ of habeas corpus which was granted, and thus jury nullification became an established right in England, in American colonies, and later in those states that adopted the English Common Law.

Comment #17 - Posted by: Dan MacD at October 18, 2009 5:07 AM

Dang I'm not sure if i can handle this WOD!!!! HOOOAHHH we RATB's are lovin Crossfit and welcome the rests.........

Comment #18 - Posted by: RATB'S at October 18, 2009 5:51 AM

Note to all-

Stay away from Russell(Glasgow), as per comment #17

Russ, Good Luck with all that, mate!


Comment #19 - Posted by: Michael at October 18, 2009 6:23 AM

Sunday musings (so Jakers won't feel cheated)...

1) I don't love my dogs so much when they "call" at 0530 every morning. But I do love my kids whenever they call, even at 0130 in the morning.

2) Competition. Annika Sorenstam says that she doesn't miss the competition of the LPGA. I call BS. You spend your entire life after 10yo in daily competition or daily preparation for competition, you win regularly and routinely for 20+ years, and you don't miss it? Nonsense.

I don't miss any of the games I once played all that much, especially the ones that I can no longer physically play at 49 (full-contact football?). But the competition? The camaraderie that naturally exists, even in the absence of friendship, between and among like-minded competitors? Having permission to win, to openly yearn for the victory?

I miss that a ton, thank you very much.

3) Energy. I like the concept of "potential energy". You know, the rock sitting at the top of a hill, all that energy ready to be released once it starts rolling down. I heard a new term yesterday which I think I like even better, because it appeals to my sensibility as a Crossfitter: "available energy".

"Potential energy" now sounds rather static. Theoretic. The rock at the top of the hill imagery more a landscape. "Available energy", now THAT'S a concept a Crossfitter can sink his/her teeth into. "Available energy" is what we train for. We go to the gym 3 on/1 off to increase our storage capacity of available energy.

It makes me think of that rock at the top of the hill as not so much a landscape painting as a freeze frame image from the action film of life.

4) Game Plan. Daniel Gilbert: people are generally very poor prognosticators of what will make them happy. Ah, now I have the proper vocabulary to describe the epiphany encountered during a round of golf on a particularly brutal golf course in S. Carolina. The amount of happiness I receive from things I like is less than the amount of unhappiness I get from stuff I dislike. I intuitively knew that it would be harder to find things that made me happy, but once identified I could avoid things that made me unhappy.

I've written about this before, but Gilbert's quote is a rather more elegant preamble. When I offered this observation up for discussion at dinner after that particular round it was met with statements about "glass half empty" or "playing not to lose rather than playing to win." I said then, and I'll repeat now, that I disagree. Such an epiphany opens the door to a very effective game plan for the daily contest that is life.

I like talking to my parents, and I still have both of them, but as they have gotten older I find that certain topics of conversation just leave me bereft of joy. I still call my folks, but I now decline to engage on those topics. I have loved the game of golf for decades, but a golf course that I find unpleasant is one I do not need to play; there are countless others that are a joy to engage.

In every game it is appropriate to play both offense AND defense. To seek out those things that you have discovered that bring you happiness, whether in large or small doses. Because one cannot ever know the entirety of the universe of things/people/activities that bring happiness it is right and proper to continue the search for those things, to continue the adventure of seeking the new. You never know what's out there that will bring new joy. Heck, I found Crossfit at age 46.

Once one has discovered that a certain something brings not happiness but something else, something not at all like happy or fun, one can opt NOT to choose that. Every game plan includes both offense and defense. How tightly you play 'D' depends on how much you disliked it the last time that play was run.

I declined to play that particular course again. We played another course, equally difficult but different, under a beautiful sunny blue sky, and all 4 of us broke 80.

I was pretty happy.

I'll see you next week...

Comment #20 - Posted by: bingo at October 18, 2009 6:28 AM

Finally, a topic one feels qualified to address! (Trial lawyer for 25 years, federal prosecutor for 19.)

Juries have the power, but not the right, to nullify.

Jurors have two duties: 1.) Decide the facts of the case, based only upon the evidence presented during trial, and 2.) arrive at a verdict, applying the law provided by the Judge during jury instructions.

Jurors take an oath to follow the Judge's instructions on the law, even if a juror personally disagrees with a particular provision of law. If a person cannot fulfill either of those those two duties, that person should not be a juror.

Jurors are the deciders of fact, the "fact judges;" the Judge rules on all matters of law. When juries nullify, they violate their sworn duty to follow the Judge's instructions on law, and they make themselves advocates....which is not their job.

Nullification, in my experience, is extremely rare, as most people are civic-minded and law-abiding. Our criminal justice system (USA) may not be perfect, but it is the best in the world.

One marvels, in this day and age, that 12 citizens from varying walks of life and cultures could agree on anything. Yet they do, in courtrooms across our country, every day.

Now enjoy your Rest Day, and get ready for tomorrow....

Comment #21 - Posted by: AUSA Mike at October 18, 2009 7:14 AM

Jury Nullification,

Here's an interesting conundrum...
The people of California approved and demanded a "Three strikes and you're out" law.

They nullified the judge.

Now, the only way to apply an appropriate sentence for a third shoplifting offense is for the jury to nullify the law.

Every State has similar, patently unfair, but popular laws.

So, who should be nullified or doing the nullifying... the judge, the jury, or the citizens who approved the law in the first place?

My opinion: context is everything.

Comment #22 - Posted by: TJ Wyatt at October 18, 2009 7:24 AM

Jurors absolutely have the right, and occasionally the responsibility, to nullify.

Here in Oakland, we have a crusading county prosecutor who has brought murder charges against a LEO for a clearly accidental shooting. The victim was a convicted felon, resisting arrest, in a large group, late on new years eve. There is video of the incident. The officer's body language is all you'd ever need to see to know he was in a position of extreme stress and the shooting was stunningly accidental.

Due to political pressure, the prosecutor filed charges. In the interest of a "fair" trial, it will be moved out of county. But this is a trial which should never take place at all.

In this case, the jury may be the only counter to an over-reaching and politically-motivated government prosecutor. I hope they understand the extent of their rights.

Not one of the other NYE rioters has had charges filed against him. The "victim" and his felonious pals terrorized a subway train full of people between multiple stops. And only the responding officer faces any charges at all? Shameful.

Comment #23 - Posted by: Benny1 M/40/74"/220 at October 18, 2009 7:37 AM

#23 TJ-

I'll bite. The voters did not "nullify" the judge, nor did the legislature, a separate branch of government.

The legislature adopted the will of the people and enacted a law to deter recidivism, by punishing repeat felony offenders. Sound reasonable? Apparently, it did to the majority of California voters.

Your opinion is based upon the flawed premise that repeat offender laws are patently unfair. Repeat offender laws, in my opinion, keep society safe. Just ask the voters.

Take care, work out hard.

Comment #24 - Posted by: AUSA Mike at October 18, 2009 7:46 AM

Here is a great little handbook everyone should have. Enjoy!
If the link is not working just google "citizen's rulebook"

Our juries are one of our last remaining checks and balances against our corrupt government. If there is no victim there is no crime. If more people would go to trial with all the crap we are charged with and juries would nulify the laws as is their responsibility, our country would return to it's former glory.
The law was supposed to be a shield to protect people but now it is a weapon used to criminalize all behavior.

Comment #25 - Posted by: FTS at October 18, 2009 7:53 AM

Since I weenie out of main site WODs, I thought perhaps I could atone for my sins by doing the Run for Wounded Warriors today at Burke Lake, Virginia, in Fairfax County:

4.7 miles in 49'49"
10'35"/mile pace

I'm not a runner by practice, but this seemed like a pretty gosh-darn good cause to lace up the running shoes and break out of a routine. It's been pouring here lately, but the rain broke for about three hours, which allowed for a pleasant pre-breakfast run through a forest around a quiet lake. Maybe it was the weather, but I was surprised by the low turnout (about 150-ish participants) for such a worthy endeavor in this pro-military part of the country.

Then again, it's nice to know that there are still a few "grassroots" running events in the Capitol region, with even a cool t-shirt to boot, that aren't sold out months ahead of time and requiring the need to fight terrible traffic and public transportation to make it to the starting line. Gotta appreciate blessings as they pop up, to include having a somewhat healthy body after 26+ years of the military lifestyle :^)

On a side note, for this run I wore a PT shirt from the last time in my career that I was on the tip of the spear, with the 11th Aviation Regiment (Strike Deep!), V Corps, Germany, 1997-2003. Crazy times, they were, especially during the trip into Iraq right behind "Shock and Awe", but not a day goes by that I think about that adventure and laugh out loud because of the sense of humor carried by all of the Airmen and Soldiers assigned to Task Force 11. How I survived the insane convoy ops through dust storms and setting up camp in the middle of nowhere, I have no idea, but, jeez, it was NUTS!

Funny thing is, conditions sucked so bad that we couldn't do anything but laugh about it. Nowadays, you step foot on any established FOB, base camp, or garrison installation and all you hear are complaints. Like the old saying goes, "the better the assignment, the lower the morale." I don't know why, but it's absolutely true. What the heck is wrong with people?

Comment #26 - Posted by: J.T. at October 18, 2009 8:11 AM

Nullification is the final bulwark between an unjust state and the rights of the people. Is it impossible that fallible humans could make an unjust law?

Comment #27 - Posted by: NickH at October 18, 2009 9:09 AM

I rested yesterday, so I made up for it today (kinda):

5 rounds of:

7 assisted pullups
7 assisted dips
21 reps 60# SHDP

~24 mins. Lots of waiting at the gym today.

Comment #28 - Posted by: Phoenix F/31/5'7'/226 at October 18, 2009 9:09 AM

#24 Benny1

Jurors have only the power, and not the right, to nullify. Your argument confuses power with authority. A bully has the power to take lunch money, but not the right.

What you advocate is a form of vigilantism, of jurors taking the law into their own hands, ignoring the limits of their authority. What you advocate, in essence, is anarchy. Pretty scary.

As for politically motivated, power hungry prosecutors, unfortunate if true in your jurisdiction. Fortunately, the scenario is largely limited to Hollywood scripts. Most prosecutors are hard working public servants, who obey the law and help protect society.

Enjoy your Rest Day.

Comment #29 - Posted by: AUSA Mike at October 18, 2009 9:27 AM

Repeat offender laws.....at least in SoCal are rarely enforced. Prosecutors in my county all too often sign off on plea agreements for lessor included offenses, making "the system" nothing more than a revolving door. Great in theory, but not practiced. Gives the public a false sense of security.

Comment #30 - Posted by: Cookie at October 18, 2009 9:48 AM


5 rounds for time:
10x push-up w/clap
15x burpee
20x dip
21x sumo-deadlift high pull (95lbs)

Comment #31 - Posted by: nate/26/6'/185 at October 18, 2009 9:50 AM

AUSA Mike, normally I would agree. I'm a decidedly law-and-order kind of guy. Google "Johannes Mehserle" and see for yourself whether or not charges should have been brought. Tragic, yes. Murder, hardly.

Comment #32 - Posted by: Benny1 M/40/74"/220 at October 18, 2009 10:01 AM

#31 Cookie-

Plea agreements serve a valuable function in our criminal justice system. Plea agreements resolve cases without the expenditure of the resources, time and money required to try a case to a jury. Plea agreements also spare citizens the personal inconvenience of jury service.

Prosecutors (executive branch) are under heavy pressure from the judiciary (and the public) to move cases and save money.
Prosecutors may offer a plea to a reduced charge because of witness or evidentiary problems with the case.

Our criminal justice system is not perfect, but it is the best in the world.

Take care,

Comment #33 - Posted by: AUSA Mike at October 18, 2009 10:14 AM

To clarify some concepts - the normal division of labor is, the judge gives the law to the jury; the jury decides the facts and applies the law.

When the jury reaches a factual determination that no one else happens to agree with, that is not juror nullification. The jury may indeed have been wrong, or maybe everyone else was wrong, but procedurally they did what they were supposed to do - they decided what the facts were. Whatever the OJ verdict was, it not juror nullification. Benny1 at 7:37 am, your cop does not need to rely on juror nullification - if the jury agrees that the shooting was accidental, that is a finding of fact and let's hope they get it right.

True juror nullification - the jury refusing to apply the law the judge has given - arguably has no place in a democracy. The majority generally has the right to enact laws, subject to constitutional review designed to protect minority rights. Jurors, like any other citizens, don't get to opt out of that. Or do they? The analysis is really similar to civil disobedience. Is it possible that laws are enacted, that escape constitutional review, and now some jury has to apply them in a case that appears to everyone, to them, to offend fundamental notions of justice or constitutional rights?

I guess I could see that happening, but it would just take a really unusual case and a lot of convincing for me to buy off on that. Same thing with civil disobedience - there is a time and place for it, but rarely, and people who engage in it need to be prepared to accept the consequences.

Comment #34 - Posted by: Kamper-at-home m/45/74"/200 at October 18, 2009 10:17 AM

#31 Cookie


Without plea agreements our criminal justice system would become inadequate. In many cases, if not most, plea agreements also help in solving other crimes. Without the motivation to plea to a lesser charge, due to a cooperation agreement (common within plea agreements) most perpetrators would have no reason to "spill their guts", eg.. ratting out a friend in exchange for a lesser jail sentence.

in addition;

If everyone went to trial, our criminal justice system would become even more overwhelmed and our fundamental right to a speedy trial would become next to impossible.


5 rounds for time:
10x push-up w/clap
15x burpee
20x dip
21x sumo-deadlift high pull (95lbs)]

TIME: 22.02

Comment #35 - Posted by: nate/26/6'/185 at October 18, 2009 10:27 AM

This is largely a moot point. Jury nullification didn't come up in Crim Pro I or Crim Pro II.

As for that shooting in the subway. I find it hard to believe that the cop would intentionally shoot someone in custody in front of so many people, but there is an obvious case for manslaughter. That is what juries decide. How negligent was the defendant? How hard is it to confuse a taser with a handgun etc.

Those manslaughter laws were passed by legislatures elected by the people. Twelve people sitting in a room have no more right to nullify those laws than judicial activists.

Comment #36 - Posted by: MS at October 18, 2009 10:28 AM

# 33 Benny1

Not having first hand knowledge of the case, it is impossible for me to say whether these charges should or should not have been brought against Mr. Mehserle.

Sometimes a prosecutor has to make very difficult charging decisions, which affect the lives of many, including the defendant and the alleged victim. Most prosecutors understand the importance of this duty and do not undertake it lightly.

Take care.

Comment #37 - Posted by: AUSA Mike at October 18, 2009 10:29 AM

RATB what unit are you in?

Comment #38 - Posted by: wndrlance at October 18, 2009 10:30 AM

AUSA Mike:

Cookie, in her comments on plea bargaining by prosecutors, makes no mention of her opinion on the basic benefit of plea bargaining for the reasons you cite in #34 and nate seeks to support in #36. Indeed, Cookie would in all likelihood agree with you as a general concept.

Cookie directly addresses the issue at hand, if you will, by saying that in her court and in her experience, prosecutors have reacted to the enactment of mandatory sentencing laws by nullifying juries before the juries have the opportunity to nullify. I am enjoying this discussion, and would likely find your comments directly responding to what I read in Cookie's comments to be enlightening and enjoyable.

Thanks to all who are participating thus far.

Comment #39 - Posted by: bingo at October 18, 2009 10:40 AM

#40 bingo-

Welcome to the party!

Cookie, it appears, was not commenting on nullification at all, but upon her perception of prosecutorial practice in her jurisdiction. I attempted to provide some explanation, based upon personal experience. Again, finally a topic I feel competent to address.

Clare Luce Booth once said "No good deed goes unpunished."

Some complain about plea agreements to reduced charges, and leniency on crime.... conversely, others complain about prison overcrowding.


Comment #40 - Posted by: AUSA Mike at October 18, 2009 10:55 AM

Cookie says that repeat offender laws are not often enforced because of plea bargaining. This isn't true. Those laws can only be enforced when their elements have been met. Those elements are usually convictions of felonies (or specific types of felonies). If charges are pled down to non-felonies, then they don't meet the requirements of the three strikes law.

This was fully contemplated and considered by the lawmakers. Additionally, prosecutors are often elected positions (and if they are appointed, those appointed are certainly elected). There's your fix.

Comment #41 - Posted by: MS at October 18, 2009 10:58 AM


If you're anywhere near Portland Oregon, I'll come help! Hell... I'll burpee my way over there! lol


Comment #42 - Posted by: Eddie at October 18, 2009 11:14 AM

The division of labour between judges and jurries is not as clear as some might suppose. It seems clearer than it is because of the way judges in appellate courts speak of the prior (usually unassailable) findings of juries at the trial court level.

Jurors must navigate the labrynth created by the laws of evidence on the way to making their findings of fact. They must understand and apply the laws of evidence - the act of "understanding" involves "interpretation", interpretation of the Judge's instructions on the admissibility and weight of evidence, interpretation of competing counsels' arguments on the admissability of evidence and many other 'legal' issues.

A simple case of this is where a juror must consider what to "do" with evidence of a defendant's previous conviction. The juror is supposed, in most cases, to consider that evidence only in the context of determining the defendant's crediblilty, and not for the purpose of determining whether the defendant is the 'type' of person who would commit the crime she is now accused of.

Knowing what this distinction means and applying it involves comming to "legal" conclusions.

Fine discussion today.

Comment #43 - Posted by: Prole at October 18, 2009 11:19 AM

AUSA Mike, thank you. I did not realize that juries had the option of fact finding (grand juries, yes, I knew that :) ). I am encouraged by your response.

Manslaughter would have been a more appropriate charge, according to friends I've talked to including both defense attorneys and prosecutors, LEO's, and a friend in county government. The prosecutor's choices did more to polarize the community than they did to heal existing biases, and for that I am truly sad.

Good topic, for sure.

400m run
15 x 95# front squat.
5 rounds


Traveling next 2 days and won't have weights so skipped the rest day.

Comment #44 - Posted by: Benny1 M/40/74"/220 at October 18, 2009 11:30 AM

Did fridays wod as rxd done in 27:05
loved it!!!!!!!!!!

Comment #45 - Posted by: gale at October 18, 2009 11:41 AM

With the ever increasing # of laws against arbitrary and victimless acts I wish more Americans had the faculties and courage to realize how important jury nullification is when trying to save the last vestiges of a free society. This country is looking more and more like the novelette "Anthem" were nothing is permitted unless it has already been approved by the "authorities".
Next time you head to your local box ask the affiliate owner how much of a headache the government was in trying to open. If your box owner was found to not have a proper permit or the proper ADA approved entrance could you as a juror find him guilty or want him to pay a fine for "breaking the law"? I hope not.

Comment #46 - Posted by: adam at October 18, 2009 11:47 AM

#45 Benny1

You are most welcome.

AUSA's are LEO's pursuant to federal law. We investigate as well as prosecute federal felony violations, although we do not have arrest powers.

The case you raised seems very close, and very sad.

One last observation, considering your last post: Given the demographics of the parties involved, I'll bet the prosecutor was faced with a potentially volatile situation, and was sensitive to the fact that the black community would have felt that a failure to charge a white police officer who shot a young, unarmed black man would have been perceived as an unfair racial charging decision, and a case of the system protecting its own.

Prosecuting is a solemn job which presents serious issues. It can be stressful. All the more reason to stay fit....CrossFit.
Hang in there,

Comment #47 - Posted by: AUSA Mike at October 18, 2009 11:51 AM

# 47 adam

Your anger at "government" is misguided. Tamper-proof product packaging is an answer by manufacturers who have been sued (successfully) for millions of dollars because a child could open a pill bottle.

Blame the juries who award millions on claims that do not merit such remuneration. or....blame the parents who should have been watching Little Tommy when he raided the medicine cabinet.

It's just too easy to blame government for everything.


Comment #48 - Posted by: AUSA Mike at October 18, 2009 11:55 AM

# 44 Prole-

The division of labor between judges (experts on law in courtroom)and juries(experts on facts) is exceedingly clear....by law. Jurors are never asked to decide questions concerning the law of evidence. On;y the judge makes those rulings and decides what will and what will not be presented to the jury as evidence.

The judge serves as the evidentiary gatekeeper. The jury decides the facts and how the evidence is interpreted, with a verdict.

Nullification occurs when juries ignore their sworn duty to follow the judge's instructions of law, and reach a verdict based solely upon the result the jury desires.


Comment #49 - Posted by: AUSA Mike at October 18, 2009 12:02 PM

Yesterday's Workout

5 Rds
21 pu
21 dips
21 sdhp 95#


Comment #50 - Posted by: Briscoe m/16/5'10"/145 at October 18, 2009 12:17 PM

I'm not sure how exceedingly clear it is.
Questions concerning the admissibility of evidence can include factual questions that are decided by a judge outside the presence of the jury (FRE 104).
Oregon v. Ice.

Comment #51 - Posted by: MS at October 18, 2009 12:20 PM


You appear to be confusing the Judge's duty in determining evidentiary issues with the jury's duty to decide the facts of the case, based upon the evidence (which the judge allows the jury to hear, based upon the rules of evidence.

The jury is never involved in questions of admissibility. Nev-er. That is the sole province of the judge. (Cases to numerous to cite.)

Yours in jurisprudence,

Comment #52 - Posted by: AUSA Mike at October 18, 2009 12:51 PM

I can see both sides of this argument. On one hand, I believe laws serve a purpose and should be created to protect the public and individuals. HOWEVER, that does not mean that laws cannot do more harm than good and at times violate individual rights. Jury nullification should be used in extreme circumstances. Not in such a way that would create "juror anarchy", but would simply make things right. Jury nullification is one of those things that are out there, but isn't often practiced. It's just a tool that, in a sense, is available if absolutely necessary. Much like the people's right to rebel against a tyrannical government, jurors should have the right to rebel against an unjust law.

Comment #53 - Posted by: TCUHrnFroggyStyle at October 18, 2009 12:58 PM

Citizens taking the law into their own hands doesn't sound so bad to me, in fact, it sounds like a step in the right direction!

If I happen to find myself on a jury for a crime I approve of, like the vandalization of a McDonalds headquarters or the minor ADA procedural violation in the pursuit of good, I will have no problem voting Not Guilty against the facts. The "justice" system is a big game. I'll "play" the game without feeling guilty because the whole system is big, unfeeling, inhuman, and uncaring. Who will get mad at me? Ill have Mcdonalds executives peeved at me - I can live with that.

I want less judgment from big governments and systems (even if they are democratically elected - we all know how unfair democracy can be) and more judgment from the true hearts and minds of my peers. If wanting humanism and compassionate caring in the application of justice is anarchy, call me an anarchist.

Comment #54 - Posted by: Stephen Hubbard m/23/6'3"/195# at October 18, 2009 1:10 PM

yesterday's WOD, as RX'd

time: 13:56

Comment #55 - Posted by: adam (m/23/5'9"/164) at October 18, 2009 1:26 PM

A Jury does not have to be bound to the law, as there many laws that are color of law, or contrary to the constitution and not withstanding. If juries were bound to follow the law as instructed by a judge, they would not be independent of the court. Police and Prosecutors may disagree, but they have no power to change this. Unfortunately most Americans do not even know who the first president was, much less what the constitution says, leaving them unable to have any idea what to do as a Juror. Nullification needs to be taught as a safeguard against the growing tyranny of our Federal and some cases state govt.

Comment #56 - Posted by: Ryan at October 18, 2009 1:38 PM

#56 Ryan-

Of what "growing tyranny" do you speak? Please, enlighten us.
Please also share with us a law or two that is merely "color of law."

Judges work hard to ensure that the laws enacted by our legislators are in compliance with the Constitution, and are enforced in compliance with the Constitution by our Executive Branch (including LEO's and prosecutors.)

Again, you are advocating anarchy. To each his own....


Comment #57 - Posted by: AUSA Mike at October 18, 2009 1:49 PM

# 44 MS-

It is exceedingly clear.

You are confusing the judge's duty to consider "preliminary questions of fact" (FRE 104) in making evidentiary rulings with the jury's duty to decide the facts of the case... two entirely different things.

Mike, aka "AUSA Mike"

Comment #58 - Posted by: AUSA Mike at October 18, 2009 1:53 PM

Where, in light of our discussion, does the concept of "intent" factor into the process?

Comment #59 - Posted by: bingo at October 18, 2009 1:54 PM


As part of a continuing work capacity exercise:

65# "Fran"


Man, I really thought I had a sub-4 in me. My as Rx'd PR is 6:22 and my "virtual Fran" time is 1:41(PVC/JPU). I'm postulating that "Fran" is analogous to an 800M run, the event that Coach once used as an example of a fitness ideal (my 800M adult PR is a little over 3:00).

I think I will continue to explore the various manifestations of this WOD both as a benchmark and as a training exercise.

Comment #60 - Posted by: bingo at October 18, 2009 2:00 PM

"Intent", that is, on the part of the accused.

Comment #61 - Posted by: bingo at October 18, 2009 2:00 PM

bingo, your question is not clear at all.

Intent is a requirement in most all criminal laws. The jury has to find the requisite intent beyond a reasonable doubt. Intent can mean that the defendant knew what he was doing, or it can mean he was trying to complete a specific task. It all depends on the statute.

Comment #62 - Posted by: MS at October 18, 2009 2:18 PM

Bingo,you are a true gentleman - thank you! Musings were awesome as always as well.
I love people deciding what my opinions are ;) I merely stated my observations in the courtrooms I have had the privledge of clerking in.Since I sit by the man in charge, read all the legal research docs and motions, I think i have a pretty good handle on what goes on but thanks for all that attempted to school me. If ya'll really want to set me off we can discuss the rates of recidivism among drug offenders put into "programs." Can't wait to share these posts with my judge. Big Giant frontal hugs to all :) - P

Comment #63 - Posted by: Cookie at October 18, 2009 2:29 PM

Stephen Hubbard at 1:10, let me rephrase part of your post for a hypothetical.

"If I happen to find myself on a jury for a crime I approve of, like [the lynching of a black man] or the minor [beating of a suspect to coerce a confession] in the pursuit of good, I will have no problem voting Not Guilty [sic] against the facts. The 'justice' system is a big game. I'll 'play' the game without feeling guilty because the whole system is big, unfeeling, inhuman, and uncaring. Who will get mad at me? Ill [sic] have [people who care about laws I don't like] peeved at me - I can live with that."

Do you see where your argument runs awry?

Comment #64 - Posted by: Nick at October 18, 2009 3:48 PM

AUSA Mike,

They're not advocating anarchy. They're advocating a check that we have, as citizens. That check can be used against other citizens, or against the government in legal cases where the jury believes justice would not be done if the law was applied based on the facts of the case.

It's not anarchy because, as you said, it is a power that juries have, a power granted them by legal authority and precedent. Your analogy to a bully having the power but not the right to take somebody's lunch money is a bad one, since the bully's power wasn't granted by law, or even by the unwritten law of the school yard. In fact, the bully's use of that power is specifically prohibited, where as the jury's power of nullification is backed up by law.

If Ryan, et. al. were advocating anarchy, why would they bother talking about juries, or courts at all? Such things are manifestations of a government and wouldn't exist in an anarchy.

I think more to the point of the discussion is whether juries should be aware of their power of nullification. Personally, I think that all good citizens should know what responsibilities, rights and powers they have. I also think that all good citizens should be allowed to carry firearms. And, like firearms, nullification grants an incredible amount of power to people. They are both tools and, like most tools, can be used for good or evil.

Good topic, today!

Comment #65 - Posted by: Nick Wise at October 18, 2009 3:57 PM

Kelly Starrett's seminar is incredible. I went to the seminar yesterday and learned so much. If you are at all thinking about going to a cert please go to Kelly's! It is wonderful for coaches, athletes and anyone who is looking to improve their performance or their clients performance or just improve their quality of life. I can't recommend this cert highly enough!

Comment #66 - Posted by: Nichole D at October 18, 2009 4:14 PM

AUSA Mike,
I think my anger is appropriately placed as it is government (federal, state, city) that has laws against consensting (in business, not sex) adults to do just about everything. Try to name a business that you do not need permission from some governmental agency to open? If I want to offer someone else a product or service at a price that someone else wants to pay, why should someone that I've never met be allowed to tell me that it is illegal to do so?

Comment #67 - Posted by: adam at October 18, 2009 5:02 PM

#64- Nick Wise,

Thanks for your insights.

People have the right to burn down neighborhoods, and there is precedent for that as well. However, they do not have the authority to do so. I

Jury nullification is anarchy, plain and simple, for juries to ignore the law and arrive at a verdict solely because they seek a certain result.

#52 MS-

It is exeeeedingly clear.

You are confusing a judge's duty to make preliminary fact findings (FRE 104) in order to rule on evidentiary issues, which are questions of law, with a jury's duty to decide questions of fact, which are based upon the evidence a judge allows them to consider.

Juries NEVER are requested to consider questions of law, including evidentiary issues.

Cookie, you need not be so defensive. Sarcasm is a poor substitute for wit. Are we not entitled to question the statements of a judicial clerk?

Peace out,

Comment #68 - Posted by: AUSA Mike at October 18, 2009 5:13 PM

Juries make findings of mixed fact and law, not merely fact. When they ask a judge to explain the difference between "counseling" a crime and being part of a "criminal conspiracy" the judge will provide them with legal direction. But then the jury must apply that legal direction to the facts. Whether Mr. Jones' conduct toward Ms. Singh amoungt to criminal counseling, criminal conspiracy or neither, is a question of mixed fact and law. Jurors are not fact vending machines - so that counsel puts its evidence in the slot and out comes a finding of fact.

If twelve people can be charged with the responsibility of sending a person to her death, why can they not be charged with the responsibility of saying a law as it exists improperly applies to the situation this defendant is in - draft the law better so that it makes the distinctions required in order for it not to capture conduct like that which has occured in this case?

Comment #69 - Posted by: Prole at October 18, 2009 5:17 PM

Why are my comments on this topic no longer being posted?

They have all been civil, and on point.

Nice censorship.

Comment #70 - Posted by: AUSA Mike at October 18, 2009 5:24 PM

There's a critical distinction in the evolution of the law, which is essential to the issue of jury nullification. Nobody has mentioned it, but the debate so far shows the authoritarians falling unaware on the side of Might Makes Right, and the 'anarchists' (!) defending the system which is actually the source of our modern legal system - and our freedoms and even the concept of the United States.

We have two systems of law. The first is the common law, the second is government regulation. Nowadays, people are only aware of THE LAW, and they primarily interpret this as government regulation -- mistakenly believing all law comes from the government. It does not. Losing our understanding of the roots of our legal system in common law has been part of the process of losing our understanding and spirit of liberty.

Common law is the grassroots system which has governed most matters of civil conflict, of the protection of property rights and commerce. It certainly is ample to manage 99% of legal concern in civil society. Common law was the origin of our modern trial law and of most law and order; government regulatory law has been as fickle as the changing of power. Keep a historical and international perspective: The changing of power has been massively variable and frequent, until this remarkable deviation, which has been the United States, in which government was reined in and intended to be yoked to the spirit of reason and justice which embodies the common law.

Quite simply, common law is a process of fair trial, weighing of evidence and a public, civil decision of grievances, by the understanding and customs of the community in which the conflict takes place.

Government law consists of writs or acts levied by the government and imposed upon the governed.

The common law has been with us since the 14- and 1500s, and it was the source of order which inspired so many of the early beliefs in democracy, in individual liberty, and in the spirit of freedom FROM government, the classical liberalism in which the American revolution was born, the libertarianism which inspired thinkers like John Locke, Thomas Paine, David Hume, Thomas Jefferson.

Common law has embodied the idea of citizens who are equal before the law trusting to a process of public trial to decide conflicts according to the norms and legal beliefs of their community.

It is a system which has engendered a fair legacy of trust for the process of law, for the idea of "law and order".

If by "law and order" you mean the authoritarian imposition of the will of the government -- you should, rationally, hate law and order. But 'law and order', before it is bastardized by a government that has seized too much power, is the bedrock of our pursuit of happiness, the security which lets us focus on the good in life and each other.

But just as statists have stolen the term "liberal" to mean "one who favors greater government control", so the government has arrogated and usurped the law and the legal system -- to the point that now, most of you think of "the law" as a government imposed code.

This is horrifically wrong: the takeover of the law by cogs in the machine like AUSA Mike who have accepted and labored under the arrogance of federalism, the belief that the government is the source of legal order.

I think it's really cool that the freedom lovers have faithfully come out in favor of jury nullification, and recognized the roots of our civil society in it. You guys rock.

For the others --- Don't Tread On Me, and Molon Labe.

Comment #71 - Posted by: Cash Reynolds at October 18, 2009 5:26 PM

#69 Cash

Don't tread on me either... .and please do not attempt to sit on one of my juries. Anarchy sure is cool!

You are thanked and excused, peremptorily.

Comment #72 - Posted by: AUSA Mike at October 18, 2009 5:31 PM

Starting CFSB today.

wu: 1000 m row, 1 rnd CFWU (-pull,+push)

Front Squats 5-5-5
185, 190 (f on 5th), 185

Back Squats 1 x 15-20
20 @ 165

Tabata situps: 17,17,17,16,16,15,15,14 (127)
Tabata squats: 19,19,18,17,17,16,16,14 (136)

Comment #73 - Posted by: DOPP at October 18, 2009 5:57 PM

RE: AUSA Mike 5:31 PM,

The site uses filters which automatically hold any content which looks like it's probably bad. The filters often seem fickle and unfair, and they victimize even careful, precise veterans like Bingo.

So your post was caught in a software filter, not censored. (Although removing even posts which passed the filters IS a right and privilege of the moderator, which they sometimes need to exercise.)

The best way to hurdle the filter is to avoid excessive punctuation and especially four-letter words.

Otherwise -

It's not anarchy. You should be educated and intellectually honest enough not to try to tar your interlocutors with inaccuracies like that. I don't imagine you'll revise the flawed foundational beliefs you've spent your career within, so I don't expect you to recognize and internalize the (very broad) truths I wrote.

But my language is accurate, and the issue is as serious as the rights, the families and lives, we sheepdogs protect with blood and bone: our legal system is the bedrock of our pursuit of happiness. It was founded in traditions of freedom, the common law, NOT in your authoritarian wresting and hoarding of power.

I'm afraid to look like a wingnut, and I do appreciate any substantive criticisms. Also, I singled you out and I'm sure it feels personal. Better to feel slighted here than on the wrong side of the gunfight when you try to impose your ideas on others though, right?

For the record, the freedom lovers have faster Fran times.

Comment #74 - Posted by: Cash Reynolds at October 18, 2009 5:57 PM

Paddled to Hell today! Hell, MI that is! 8.9 miles 2.5 hours. Slow leisurely paddle today with about 20 friends!

Comment #75 - Posted by: Allan at October 18, 2009 6:01 PM

# 72 Cash-

Thanks for the explanation of site filters. Sincerely.

However, I urge you to look up "anarchy" in the dictionary. In essence it means "lawlessness," which is precisely what jury nullification is.

I am not an authoritarian nor do I wrestle for power. You sure are verbose.

As for imposing my ideas on others, I am merely educating you and others on the very common law you cite.

Although you obviously love to share your beliefs freely, I seriously doubt that you have ever tried a case.

Now, don't fret over the complexities of things you do not comprehend. Go clean your gun, then do Fran faster than any mere mortal.

For the record, I'd love to try a case against you.

Comment #76 - Posted by: AUSA Mike at October 18, 2009 6:09 PM

Mark - OPT WOD(s)

Theresa - CF Warm-up x 3 followed by CFEndurance WOD 3 x 1k: 4:20.0/4:24.5/4:24.0 (no Foul - yeah!)

Comment #77 - Posted by: Mark & Theresa at October 18, 2009 6:14 PM


Nobody was talking to you, but since you feel the need to rescue your floundering pal Cash, welcome. Nice to see that chivalry is not dead, and that a shining knight like you is willing to swoop in to help the weak and defenseless.

You and your pal have taken a fairly nice discussion and attempted to turn it in a nasty direction. You have, however, brought pen knives to a gunfight. Just because you do not understand the subject that you are arguing about, you attempt an ad hominem attack. Very weak, playground stuff. You should be Cash's co-counsel.

I'm not taking you seriously either. In fact, your posturing and tough-talk gibberish is fairly amusing. Your explanation of money laundering is facile, if not downright misleading.

Hey as for Cash's verbosity (and yours), clarity is enhanced by succinctness. You should try it.

Comment #78 - Posted by: AUSA Mike at October 18, 2009 7:03 PM

Just ran my first 5K today. The "Race to find the Cure" Komen Breast Cancer race.

2 Degrees Celsius. Raining. 39 minutes. I know I can do better than this. I've got excuses, but you want to hear them as much as I want to voice them.

Training hard. Next time will be easy. Train harder, next time will be easier.

Comment #79 - Posted by: clinton 25/m/71''/220# at October 18, 2009 7:08 PM

Jakers, thank you for correcting my misuse of Federalism, you called it right. I beg the 'distraction' excuse, which has much to do with my wife entering the room.

The anarchy question is on the table. Does the law, and interpretation thereof, reside in the people who are governed by that law, or is it the province of an elite class of professional power brokers who hold the reins?

If you believe the source of law is and should be a paternalistic class, then you're right, allowing a jury to decide that a law is unjust is a rejection of the 'rule of law'. If your very blood runs authoritarian, the common law is anarchy. You probably should feel that the marketplace's endorsement of Starbucks, or WalMart, or CrossFit, is an abomination of Reason.

Does anybody recognize the parallels to the Holy Roman Church and the Reformation here?

Mike, I guess it's just lip service you give to the Reasonable Person standard, right? Because the common law cannot be grounded in the jury's sense of justice. That's 'anarchy'. The jury is a just vehicle for legal decisions... until they disagree with you, right?

Comment #80 - Posted by: Cash Reynolds at October 18, 2009 7:50 PM

No big surprise that our courts wouldn't notify people about this, and rather bully them into following the specific letter of the law, no matter how absurd it is.

Case in point, let's say someone is on trial for "reckless driving" where they were driving 110 mph alone on an empty highway in a C6 Z06 in rural Texas. The only reason they got caught is because the cop was hiding behind a billboard over 100 feet from the road.

Any sane person on that jury is saying "Leave the guy alone", but the judicial system, wherein the individuals involved are appointed or hired (not directly responsible to the citizens), is not interested in following the common sense of the citizen, but is instead more interested in maintaining the image that they are the supreme decision maker in all things legal.

If enough Americans wake the heck up, we can say to our runaway courts "Guess what guys, WE are the Supreme Court, not you". In other words, it doesn't matter what law the government passes down, if the people won't follow it, they aren't going to arrest 50 million people. That law just got "nullified".

Comment #81 - Posted by: Matt DeMinico at October 18, 2009 8:48 PM


You define common law as the "grassroots system which has governed most matters of civil conflict". Wiktionary (I know, I know) defines grassroots as "Of, or relating to people or society at the local level; of the grass roots". This seems similar to the meaning you appear to give to the term "grassroots" in the context of the common law: "by the understanding and customs of the community in which the conflict takes place."
Personally, I'm a fan of common law, for the most part, but I'm confused by your use of the term. Given the discussion - jury nullification - it seems that we're pinning the term's meaning rather closely to the legal context. In the legal context, "common law" is case law - that is, it's the body of precedent developed by judges in previous cases. Oh, and common law, as a body of precedent influencing cases, applies to criminal law as well.
While I'm also largely a fan of judges, I wouldn't call them "grassroots", and would suggest that you shouldn't, either, for clarity's sake. Calling common law grassroots in this context, implying that it somehow spontaneously arises from the will of the people, is misleading.
You also write glowingly of common law, stating that “has embodied the idea of citizens who are equal before the law trusting to a process of public trial to decide conflicts according to the norms and legal beliefs of their community.” Again, I’m a fan of this idea. Please recognize the obvious dangers of this, however: common law, as you define it, can be twisted quite easily to oppress and degrade people, “according to the norms and legal beliefs of their community.” Common law is a good system, but it’s not a perfect one.
Also, I'm sure that this is my misunderstanding of your argument, but please explain it to me: you write that "Government law consists of writs or acts levied by the government and imposed upon the governed", and appear to reject it as going against the will of the people; are you thereby rejecting the legitimacy of a republican government passing laws in the name of the people? You fail to distinguish among cases where the legislature is acting according to the will of the people and where it is not, leaving you with that rejection of the republican principle; I’m curious as to whether you care to do so, or intend to stand firm in denying Art. IV, Sec. 4. of the Constitution. Or is that also an act “levied by the government”?

Comment #82 - Posted by: Nick at October 18, 2009 8:56 PM

Nick, I think your reaction is excellent. As best I can tell, you and I feel similarly regarding the prescriptions of common law for a political system. I distrust unlimited democracy. I favor a constitutional republic. Those afforded power tend to act to increase their power; and historically, the government, because it is regarded as the *legitimate* monopoly on the use of force, has been the greatest violator of people's rights. For this reason, I think our most important principles are those limiting the growth and invasiveness of government.

I do not have a sophisticated understanding of Art. IV. I believe it was an attempt to establish norms between the many states, regarding the application of precedents in case law. But you're asking me something beyond my comfort zone.

My language ('imposed upon') which you quote, could be loaded but is not necessarily so. Strictly speaking it's accurate: regulations enacted by Congress are in fact imposed on all citizens. Whether they are right or wrong, beneficial or harmful, I did not say, and it's quite possible that they are beneficial and just laws. Possible... not probable. :-)

I agree with you that juries can be wrong. 'Grassroots' (yes a sticky term) legal processes can be as flawed as the ignorant people comprising the jury. I agree that common law is not a perfect system, but a combination of our initial constitution limiting the scope of the government, and proclaiming individuals rights and equality before the law, and the common law systems we inherited from Great Britain, are probably the best legal system yet evolved.

Moreover they are committed to standards which provide for their continual improvement; and the basic equality before the law, commitment to fair trial and due process, are inherent to the system. I believe these principles are essential, and dear. They are clearly far better than the operating principles of the US Congress, which has long acted shamelessly in violation of Article 1 section 8.

Regarding 'grassroots', consider how broad my generalizations regarding legal systems are. It is true that common law evolved from grassroots conflicts. My use of the term is not meant to be demagoguery for hippies who love grassroots organic BS. Rather, it's an accurate reference to how the common law originated.

If we need to cite the failures and limitations of common law... simple. Sharia law is, in practice, something of a grassroots, community law. I don't think sharia would actually survive a true case law evolution for adjudicating conflicts of commerce and property rights, but it does seem to embody the stupidity of the local community. A better analysis might show that sharia law fails the conditions that make for common law, but I think it's something like sharia law that you have in mind when citing the weakness of common law. Regarding those weaknesses, I agree; we don't want a legal system which leaves individuals at the mercy of ignorant neighbors or family members. But we need intelligent legal principles - and I submit common law does this well while federal regulation fails - to provide for the processes which will produce the wisest and best judgments, and an evolution of precedents which builds learning into the system.

I trust that was elaboration enough, though it still feels we've barely scratched the surface.

Comment #83 - Posted by: Cash Reynolds at October 18, 2009 10:36 PM

#81 Cash-

If the jury's "sense of justice" is to disregard the law and simply do what they want to do, then their verdict is lawless. And yes, that is anarchy. Law-less-ness.

And now you've got poor Matt, # 82 all fired up. Read his post. He wants to stop "runaway courts"? What YOU advocate Cash, are runaway juries, and yes, a form of anarchy.

You are all about following the rules, until they are inconvenient, right? It takes a certain amount of arrogance to feel above the law, doesn't it? Where's your intellectual honesty?

Comment #84 - Posted by: AUSA Mike at October 19, 2009 5:10 AM

did the 100m walking lunge, 21 PL, 21 SU (-3 each round) WOD - 28:22. Wasn't feeling it, but took Fri and Sat off, so couldn't be lazy anymore.

Comment #85 - Posted by: CME at October 19, 2009 6:34 AM

The common law was “grass root”, “organic”, “authentic”, something to that effect?

The common law protected the right to own, buy and sell human beings. The common law made it illegal for women to own property (or at least made their claims to property inferior to their husbands’). The common law bubbles up from below, but it also reigns down from above – reflects the interests of the dominant class, even the manner it has protected property has reflected the interest of the dominant class (in 13thc it reflected the interests of feudal lords, in the 17 and 16th the interests of the merchant class, in the 19th the interests of merchant/manufacturers). Statute law should, where possible, grow out of and reflect the common law, because the principles on which the common law runs are often very adaptable. However, where the common law is silent, or morally repugnant on an issue, then statute law is there to right the wrong – for instance, the protection of trial by jury and habeas corpus were decreed from above by King John in a compromise with the English nobility; their origin is, in a real sense, “statutory”. Just because a right is a “common law right” does not make it better, more legitimate, or more protective of liberty than if it is a right created by statute – think of the rights to free speech and freedom of association.

Comment #86 - Posted by: Prole at October 19, 2009 7:02 AM

I keep seeing where the juries have the power but not the right. It would seem to me that in any situation where there is a potential conflict between the law and personal prejudice, care should be taken that the law be respected.

We have seen examples where "jury nullification" was justified, as in the trial of William Penn. At the same time, the necessity for that outcome was a direct result of the abuse of coercive authority, viz. locking the jury up and denying them the basic requirements of life.

Laws that are bad need to be changed. But they need to be changed by legislative bodies, elected by the people. Until they are changed, they need to be enforced.

We work out all these sorts of compromises, where the intents of laws are lessened by a variety of means--plea bargains, early release, lessening of parole requirements, etc.--that do build flexibility into the system, but at the cost of potential abuse.

I do believe that ANY centralized power will inevitably lead to flaws, since it fails to account for local information--mitigating circumstances in this case.

But how much flexibility should allowed? I guess, thinking out loud, maybe the system will ALWAYS only be as good as the people running it. For that reason, maybe this system is not bad.

The largest problem we have right now is our Supreme Court. I don't think our run of the mill, day in, day out legal system is that bad. We do let too many criminals go free, but by and large the guilty tend over time to wind up in jail and stay there, and the innocent tend not to get convicted. The problem of crime would best be solved by reconstituting the nuclear family somehow, and teaching personal responsibility in schools. Welfare teaches you the world owes you something, and most forms of crime are just taking it proactively.

As mentioned, though, the Supreme Court found a right to abortion in the Bill of Rights. It's not there. One could argue that in finding for a woman's right to kill her unborn child, they were nullifying the laws as they existed as unjust.

Certainly no serious person can read the first ten amendments to the Constitution and find abortion protected.

Very disorganized post. Sorry: was in a hurry.

Comment #87 - Posted by: Barry Cooper at October 19, 2009 7:44 AM

Why did I get banned?

Comment #88 - Posted by: jakers at October 19, 2009 8:05 AM

#87 Barry Cooper-
Hear, hear! Well said.

Again, our system is not perfect, but it is the best. And you are correct, the Supreme Court is comprised now of political activists (if not politicians) who are downright out of touch with the reality of everyday life.

Take care.

Comment #89 - Posted by: AUSA Mike at October 19, 2009 8:10 AM

Love that story Kyle. It was great to meet you at that event. You are one hell of guy. Your stories about people always trying to help you, like at the airports and things, hilarious! Connor and I would loved to meet up again sometime. Say hello to Ben.

Comment #90 - Posted by: Dan S. at October 19, 2009 12:13 PM

I just wanted to say I have time, at the moment, to argue, and would appreciate someone telling me what an idiot I am.

Fire away.

Comment #91 - Posted by: Barry Cooper at October 19, 2009 7:06 PM

Looking for a fight, Barry? Jeez, go back to whatever rancid troll-hole you crawled from.

(Kidding, kidding. I just don't want to read any more Carl Schmitt.)

Comment #92 - Posted by: Nick at October 19, 2009 7:17 PM

Actually, kidding aside, what would you think of the insurance companies losing their antitrust exemption? Congressional Democrats have been bandying the idea about lately, and it lies somewhere in the idea of free markets and state/local powers in which you seem interested. Thoughts?

Comment #93 - Posted by: Nick at October 19, 2009 7:20 PM

I'm not completely sure what you mean, but I do think that in a lot of states individual carriers have buddy-buddy relationships with the State government, allowing them to keep out competitors. This means consumers pay more and have less choice.

I was reading somewhere that Switzerland has a system that's fully compatible with free market economics. They require you to have coverage, but you decide who you buy it from. They have something like 135 (large number; that exact number is no doubt wrong) carriers in a country the size of, say, Massachusetts. Poor people get help on a sliding scale, somewhat like the Medicaid system we already have.

I've said this often, but I think the obvious step forward is to drop regulatory barriers. If you think about it, insurance is not all that different than telecommunications. I don't know how many of you remember the breakup of AT&T, which had a national monopoly on telecommunications, if memory serves (Gosh, that feels like ancient history), but long distance calls used to be a major issue. You had calling zones, and calling coast to coast cost a fortune.

Now, most insurance companies are only making 3-5% profits. 6% is a great year. Admittedly, for the bigger ones that's on billions of dollars in revenue. Still, I think that if all insurance providers could sell in all States, and sell directly to consumers, not to employers, then you would get ALL of the pluses of the "public option", and none of the detriments, most notably DECREASE in choice, and a large increase in our budget deficit.

With internet technology, too, you can create a la carte benefit programs. You could literally tell them how much you want to spend a month, and they would craft a plan. Healthy young people just need protection from, say, a bad car accident.

I would even be OK with a requirement that people set aside their deductible for high deductible plans, preferably in interest bearing, tax deferred accounts. That's a curtailment of freedom, but far, far, far short of the derailment of our individual control that Obama's plan would entail.

Most of the increases in health costs relate to people just using more healthcare. This is because they are insulated from costs. Show them the costs, make them pay some reasonable portion, and they will start to make economically intelligent decisions, which they are not doing now.

Zeke Emmanual has actually called for the pace of medical research to decrease. Why? Because new technologies cost money, and if THE GOVERNMENT is bearing the burden, they can't pay for it. How stupid is that? He STARTS from the idea of a government take-over, then using the need for that, works backward to denigrate progress.

All of our problems have solutions. All of them. No exceptions. But we have to act intelligently, and decisively. We need leadership which thinks clearly and possesses genuine integrity. We may or may not get it. We don't have it now.

Comment #94 - Posted by: Barry Cooper at October 20, 2009 7:37 AM

It's taken some time, but AUSA Mike and Barry Cooper have managed to really flesh out the major issues with jury nullification. One more thing that I think should be brought up is that jury nullification is a buzzword/hot topic for those interested in the legalization of marijuana and other narcotics. The rationale being "hey, pot doesn't really hurt anyone, and who do the government types think they are making it illegal? Juries should take it upon themselves to do what the legislature won't and send these harmless potheads home safe!"

The problem, as Mike and Barry have pointed out, is that such a stance leads to radically inconsistent enforcement of the law - you get six or eight of the right people and suddenly, nothing is a crime. Pot possesion, statutory rape, three strikes related prosecutions, suddenly it's all subject to the whims of the jury - who are 12 people you didn't elect to make laws.

Juries are not legislatures, they are not charged with making new law either by writing it or refusing to enforce it. Juries answer fact questions. Now, the law grants a massive amount of deference to a jury verdict - especially a verdict of "Not Guilty" in a criminal proceeding. However, it is possible to go behind a jury verdict, and if there is evidence that jurors openly and knowingly voted against the weight of the evidence strictly to "nullify an unfair law" the courts can toss it out and start over.

In sum, jury nullification is an idea that has limited appeal for a small group of people attempting to back-door their otherwise illegal conduct into acceptance that is simply unworkable on a broad scale within our society.

Comment #95 - Posted by: John at October 21, 2009 5:38 PM

well written. You have more time than me, I owe you a drink for taking on the authoritarians.

Comment #96 - Posted by: adam at October 21, 2009 6:57 PM

# 96 John-

You are spot on! One thing made abundantly clear by this
e-conversation,and that of today (10/22/09) is that folks with a legalization-of-drugs mentality come out to play, and cloak their agenda in" individual rights" and "states' rights" language.

Question: How could CrossFitters, who work out so hard and eat so right, choose to do something as unhealthy as smoke marijuana? Seems counterproductive.


Comment #97 - Posted by: AUSA Mike at October 22, 2009 2:25 PM

# 96 John-

You are spot on! Thanks for a thoughtful and well-written post.

One thing made apparent by this e-conversation and that of today (10/22/09) is that some fans of drug legalization come out to play and cloak their agenda in "individual rights" and states' rights" jargon. What is this, CF or High Times?

Why would any CFer, who works so hard and eats so right to be fit, advocate something as unhealthy as marijuana usage? Seems counterproductive to me.

Comment #98 - Posted by: AUSA Mike at October 22, 2009 3:19 PM

Sorry, boys, I was away and wish I could have been around to add my thoughts in a timely fashion. AUSA Mike - I disagree that jurors have the power but not the right to nullify. But we have to be very clear what we mean when we say "nullify".

Mandatory minimum sentences can certainly produce an inclination to nullify and I can't say I disagree. I've both prosecuted and defended criminal cases in my 10 years, in both military and civilian criminal justice systems. Murder trials, of which there are increasingly more, in combat zones, raise the specter of a life w/o possibility of parole for a military member on a 2/3 majority vote, where the members are not told of the consequences of their guilty vote resulting in an automatic life sentence on a murder charge (Art. 118(1)). If, however, one of them knows of this and communicates to the otehr members this fact back in the jury room, you think they wouldn't convict on an LIO (even if they all believed it were murder) so as to mitigate the effect of the sentence on their guilty verdict?

Analogous examples exists in some state systems. The bottom line is that juries want to wind up with a decision with which they can live when it's all said and done. It's easy to criticize them from our side of the box as advocates for a particular side (Mike, I'm going to call you out and guess you've never been on the defense side of the bar). But for them, the law and what's a "just" result may not always lead them to a conclusion that lets them sleep at night. In other words, the law doesn't always give them the tools to do the things they want to to achieve justice - and the lawyers are all arguing for a particular side (zealously) and may not really see justice as the jury does. If we agree that the jury is still a viable part of our system (and there are those who argue that we ought not to have juries at all - and they're usually not from the defense bar), then the power and RIGHT to nullify exist simultaneously. Nullification is an acknowledgment that laws and the procedures that exist are NOT always perfect for arriving at a just result.

It's why juries frequently arrive at compromise verdicts - not guilty of the highest offense that would result in a severe punishment for an otherwise redeemable human being who, in fact, did the highest crime. Happens in courts everyday across the nation. It's a form of nullification, but we can pretend it's not by how we define "nullification" or we say that they used their fact-finding power, blah blah blah. The reality is that in many cases, the convictions on other offenses or weapons charges make no sense and cannot be reconciled factually, but we know exactly what the jury did.

And I'm not sure that's always a bad thing.

Comment #99 - Posted by: Dale_Saran at October 23, 2009 10:29 AM

Mike - you've changed the question in your last post (and attacked a straw man you set up). No CF'er likely advocates THC use - their point is simply that it ought not to be regulated by the government under criminal statutes.

I have no opinion on either side of the issue, but your straw man is a bad rhetorical trick.

Comment #100 - Posted by: Dale_Saran at October 24, 2009 10:34 AM

Liberty demands that ALL facts and the laws be considered in forming judgement.

That judges (and establishment prosecutors) push strict adherence to "fact according to laws" while retaining their power to "legislate from the bench" illustrates the inherent conceit of sitting (and aspiring) judges.

This double standard would befit tyranny and would be abhorent to the authors of the Bill of Rights.


Comment #101 - Posted by: twiki2 at October 30, 2009 11:58 PM
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