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RFD: Jury Nullification (Thett & Whiteflame)

YYW
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9/6/2015 4:51:07 PM
Posted: 1 year ago
Resolved: On balance, jury nullification in the United States is just.
http://www.debate.org...

Thett is PRO, Whiteflame is CON. Both sides have an equal and commensurate burden because this is a normative resolution. To say that one side has more of a burden of proof than the other is to misunderstand how debating works, at best, and to give an unwarranted advantage to one side at the expense of another. Anyone who disagrees with this is wrong.

Since there was an issue with regard to what the burdens are, let me outline them:

PRO has to show that on balance jury nullification is just. CON has to show that on balance, jury nullification is not just. PRO does not have to show that jury nullification is acceptable in all cases any more than Con has to show that jury nullification is never acceptable. This is a debate of the issue "on balance" which, as a general rule of construction, and in the interest of fairness, I'm going to limit to "those cases in which the outcome of an objective of the rule of law would at least produce questionable results." I know this is a theoretical narrowing, but it's necessary in order for this to be a resolution that can be legitimately discussed because no one is going to say that, for example, in a cut-and-dry murder case that jury nullification is acceptable there, or that it's acceptable when someone is objectively innocent. The only times that jury nullification even comes into question is when facts and circumstances surrounding a crime produce an outcome where someone who is a defendant in a criminal case is objectively guilty but for mitigating circumstances of various kinds might ought to be excused from punishment even if he deserves it, or does not deserve punishment at all because he was justified in doing whatever he did. This is the only fair way to interpret the resolution, and there are no other fair ways to interpret the resolution.

(As an aside, while I am not saying that this happened here, I do not like BOP fencing. But, that is a rant the likes of which is not necessary to elaborate upon here.)

Thett begins with St. Augustine, which was about as powerful an opening as could be had for his side. He proceeds to examine the purpose of a jury. (His opening sentence regarding the Roman Empire didn't help his case, and his critique of administrative law might have been better incorporated.) More or less, Thett's first point is that juries are a necessary check on the rule of law. His second point is that some laws are inherently unjust, and he has many good examples of that, and then he talks about -indirectly- some of the consequences of inherently unjust laws.

Whiteflame defines justice as giving each their due, which is reasonable, and argues that juries have duties that are defined by their oaths and instructions. (As an aside, oaths are not vague, nor are instructions, and almost all oaths do in fact preclude -explicitly or implicitly- jurors from engaging in nullifying the law.) White flame does not clearly tell me, though, what purpose he believes jurors serve other than to produce a true verdict according to the evidence. White flame argues that PRO hasn't explored the common impetus behind the decisions why juries nullify, and he articulates that plausible reasons for doing so are (a) personal disagreements with the law which may take the form of moral opposition, (b) prioritizing other laws, or (c) regarding nullification as a way to right perceived wrongs. This is problematic because, in Whiteflame's view, jurors are "fundamentally...breaking a basic contract they made with everyone in the court room" which is to uphold the rule of law. (Contract was not the right word to use there, but the point remains on a conceptual level.) Whifeflame further contends that the subjectivity of nullification is inclined to be the product of emotion at the expense of objectivity. The greatest impact -though Whiteflame only said that nullification "gives jurors the power to dispense with laws at their individually" (which was not the way to articulate that point)- was that nullification is the undoing of the rule of law, and the making of a rule of men. That last point is very strong.

Thett responds -tactfully, because he baited Whiteflame into this implicit concession- that by Whifeflame's declining to argue that nullification is inherently unjust in every circumstance, there must be some cases where it is just, meaning that by advocating for a debate where we're deducing whose perspective weighs the heavier on the side of justice, he is saying that there will be some weight on Thett's side. That's correct, but because this is a debate of generalities not absolutes (read: "on balance" rather than "jury nullification is unjust") that does less for his side than I think he'd hope. (As an aside, the fact that the burden of proof was equal implies that there was already some weight on "his side" of the scale.)

That is, nevertheless, an issue with regard to white flame's sort of black-and-white criticism of jury nullification in terms of his saying that it's usurping the rule of law and replacing it with the rule of men. However, again, that has less of an impact for thett's side than he thinks it does. (Juror oaths are also not made under coercion.)

Thett's framing this as a tension between discretion and blind legalism (or, less colorfully, subjective consideration of the facts and circumstances of each unique case versus objective interpretation of like qualities among unique cases to produce ostensibly uniform consequences) is correct, nevertheless. That's what this comes down to. The probabilities argument does not persuade me. Draconian penalties for victimless crimes only advance Thett's case to the extent that juror nullification is a way to preempt arguably unjust consequences. I think that a lot of what thett said in his rebuttals to white flame wasn't really all that persuasive, though.

White flame's response to thett's rebuttals was pretty substantial, though. Here it is: "Jury nullification bypasses the electoral process, effectively invalidating laws that society has already approved by democratic elections on a case-by-case basis...In fact, he so strongly believes that nullification is more just that he's advocating it over the use of any democratic means to see laws changed. " (Granted, it's not the "electoral" process, per se, but the "legislative" process that jury nullification usurps... because that's how the passage of laws works.... but, again, the point remains even though the word choice was wrong.) There were other phrasing issues, but I don't care to parse them out here.

(Thett's point about the peer-makeup of juries doesn't really help him, though, because that's a criticism of the juror selection process which is beyond the scope of whether juror nullification is a just thing on balance or not. It's a red herring.)

Thett's major response to white flame's strongest rejoinder was this: "Whiteflame continually argues that the purpose of a jury is to act as "objective" fact finders--despite being the only one in this debate advocating for jurors to ignore facts" by not considering the unique circumstances of cases which may warrant nullification. Thett adds that "I don't have to prove that nullification perfectly solves the problem of unjust laws to win, I just have to prove that it's better than the alternative." which is kind of right.

Continued in next post...
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YYW
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9/6/2015 5:00:57 PM
Posted: 1 year ago
The basic thing that thett's trying to say is that Whiteflame's point about democratic remediation of unjust laws misses the point because not nullifying results in individual injustice in specific cases, and whereas white flame is just saying that "the law is what it is and if you don't like it your remedy is to change them through the legislature." So, it's justice now for the aggrieved (thett's world) or injustice now for the aggrieved person and maybe change the laws later (white flame's world) because (implicitly) the rule of law is more valuable than individual instances of justice being miscarried.

The reason why thett wins this debate (although in reality I'd give Whiteflame conduct if I could) is because thett demonstrated that "nullification" is a right (not a fundamental one, but a right nevertheless) inherent in the juror-trial process as a last check on the law's unjustness. In that way, nullification is justice's safeguard. The reason white flame didn't win is because white flame didn't tell me how the risk of nullification outweighs the resultant justice in individual cases where juries might be nullified, where nullification was necessary for justice to be served. He just told me that nullification is bad for reasons, but he didn't tell me why -in the macro- nullification is so risky and dangerous that it is less preferable to nullification in limited cases. With regard to the same, he didn't tell me why it's acceptable for people to face unjust sentences when the rule of law does not always produce justice -which is what white flame was assuming throughout this entire debate, and was necessary for me to buy his case, but which thett undermined directly and indirectly throughout the debate with both examples and theoretical arguments.

Narrow win for thett.
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thett3
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9/6/2015 5:35:05 PM
Posted: 1 year ago
thanks YYW. This was really good feedback. I'm curious what you thought of the framing of the administrative law argument. You said it could've been done better and that's actually something that was concerning me as I was doing the debate. I felt it was a powerful point but not one I was articulating as well as I should...what suggestions would you have?

On a side note, I'm really liking this idea of RFD's being threads now so that it's easier to find/discuss them than if they are scattered throughout the comments section.
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: At 11/12/2016 11:49:40 PM, Raisor wrote:
: thett was right
YYW
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9/6/2015 7:06:44 PM
Posted: 1 year ago
At 9/6/2015 5:35:05 PM, thett3 wrote:
thanks YYW. This was really good feedback. I'm curious what you thought of the framing of the administrative law argument. You said it could've been done better and that's actually something that was concerning me as I was doing the debate. I felt it was a powerful point but not one I was articulating as well as I should...what suggestions would you have?

On a side note, I'm really liking this idea of RFD's being threads now so that it's easier to find/discuss them than if they are scattered throughout the comments section.

Actually upon retrospect I think you really should have just kept the admin law point out, because it's really tangential to the debate. I can think of a way that review board nullification (most administrative violations go before review boards not juries) could be a good thing where following the rules would have led to seriously bad outcomes (this happens all the time... in so many areas I can't even begin to list them), and not breaking the rules could have led imminent catastrophe... meaning that admin board nullification is a necessary check against bureaucratic regulatory imprudence (read: stupid pencil pushers write stupid rules because they are not people in the field), and while that's like jury nullification it's not actual jury nullification.
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