Legal

Your Freedom or Your Life

Thalia.

Posted to Legal on Mon Mar 19, 2007 at 10:39:12 AM EST (promoted by port1080). RSS.

You may recall the case of Raich v. Ashcroft, the case decided by the Supreme Court 6-3, in which a woman having multiple severe medical problems was denied the right to grow and use marijuana.  The case was remanded by the Supreme Court to the Ninth Circuit.

The Ninth Circuit has finally handed down its opinion (PDF), in a 2-1 decision, they held that in light of the Supreme Court's decision, they had no choice but to tell Angel Raich to drop dead.  Raich's argument was simple.  She asserts that she cannot survive -- having multiple chronic illnesses including an inoperable brain tumor -- without marijuana's effects.  Therefore, she argued that her right to survival or life made it necessary for her to smoke pot.  This type of argument is called the medical necessity argument.   The judges' decision points out that Ms. Raich was asking for an injunction, to prohibit the DEA from prosecuting her.  They also suggest that if she is ever arrested, she can renew her medical necessity argument, and that the Ninth Circuit would look favorably on such an argument.

The courts, including the Supreme Court, have gone out of their way to point out that the way to reverse the placement of marijuana on Schedule 1 (no medical uses) is through the democratic process.  Every judge who voted against her in this case argued that this was a necessity imposed by the laws as they stand, and that they highly recommend that Congress change the law.

So if a woman with inoperable brain tumor can't move the courts and legislators to fix the drug laws in this country, what will?

Tags: edited by Port1080, written by Thalia, drugs, marijuana, Supreme Court (all tags)

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12

Here Come da Judge

keta.

Mon Mar 19, 2007 at 04:36:57 PM EST

5.00 (astute)

I don't know if he's a Republican or a Democrat, and Bog knows how he'd rule on the issue in his courtroom, but one robed rogue really likes his reefer.

1

Re: Your Freedom or Your Life

pO157.

Mon Mar 19, 2007 at 01:11:01 PM EST

none

I have a question.

I was informed in high school history and political science class that in general, conservatives in this country were for "smaller government" and less interference in personal affairs.

My question is thus: What the <bleep> happened since then, or was the lovable Mrs. Griscoll smoking a thick doobie herself before class?

2

^ 1

Re: Your Freedom or Your Life

Steve Urkel.

Mon Mar 19, 2007 at 01:32:35 PM EST

5.00 (informative)

While there is only one Republican in national office I can think of (Ron Paul) who wants to repeal drug laws, there are more conservatives than you think who would like to see them reformed. See The Feb, 1996 issue of National Review, a magazine which used to be fairly conservative, argue the 'The War on Drugs is lost"  (if I recall, correctly, the Democratic President at that time, despite having used marijuana and cocaine, and despite having pardoned his brother for dealing cocaine, never did a single thing to liberalize drug laws).

A big reasons politicians don't advocate changing marijauana laws is because even though, as Fadd notes, there are a significant number of people who would support pot legalization, few people determine their votes based on this issue. If, for example, Mitt Romney came out for legal pot, how many people who favor that who were going to vote for John McCain, let alone Barack Obama or Hillary Clinton, would vote for him? Not many.

My own views on this issue have changed in light of the mostly left-wing campaign against smoking. The liberals in my town prohibit me from smoking cigarettes in bars, therefore I have no urge to expend any effort to make it easier for them to smoke pot.

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Re: Your Freedom or Your Life

Thalia.

Mon Mar 19, 2007 at 01:54:55 PM EST

4.00 (interesting)

I'm all for prohibiting marijuana smoking in public spaces.  I'm actually allergic to smoke, and yes that includes smokes from bonfires, fire places, cigarettes, and pot.  But what you do in your own private spaces, is a different matter.  

Thalia

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^ 4

Re: Your Freedom or Your Life

Steve Urkel.

Mon Mar 19, 2007 at 01:58:43 PM EST

4.00 (funny)

A bar is a private space. But because of the ban in my town smokers have to leave the bar to stand on the sidewalk exhaling on innocent passers-by. Then we throw or cigarette butts on the ground. Enjoy.

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^ 6

Re: Your Freedom or Your Life

thefadd.

Mon Mar 19, 2007 at 02:07:22 PM EST

none

In my town, if the bar is owner-operated, they can decide to allow smoking indoors. This is actually quite a successful avenue, I think.

It is easy to buy small plaster models of what you think life is like.

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^ 7

Re: Your Freedom or Your Life

Steve Urkel.

Mon Mar 19, 2007 at 02:11:34 PM EST

none

That's more reasonable. What bothers me more (OK almost as much) as the inconvience and ruining of my bar experience is how accepting people are of the government bossing them around in an area where it's none of the governments business.

9

^ 8

Re: Your Freedom or Your Life

pO157.

Mon Mar 19, 2007 at 02:49:50 PM EST

none

That's more reasonable. What bothers me more (OK almost as much) as the inconvience and ruining of my bar experience is how accepting people are of the government bossing them around in an area where it's none of the governments business.

Seriously. I will admit that I honestly enjoy a "bar experience" that has no smoking. However, since it is private property I would rather the bar owners be allowed to do as they see fit since tobacco is legal for all old enough to enter a bar. If there simply must be a government mandate then I would rather there be a required "no smoking" section of a certain percentage of the floor, or various rooms in the bar set aside for no smoking than a total ban. But I too would rather see it open up more, on the principle of the thing and the bar owner can set a policy that works for their business and customers. If a place allows universal smoking or does not provide an area with clean air for those of us who do not wish to smell awful the next day then I will patronize another establishment, or drink at home. Alone*.

*Actually, not really, but it just sounded so much more dramatic that way.

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^ 9

Re: Your Freedom or Your Life

thefadd.

Tue Mar 20, 2007 at 02:33:40 PM EST

none

Because it's actually a labor regulation, I agree with it. It's not a ban on smoking and it isn't enforced as such. It's designed to ensure that all laborers are as free from work place toxins as possible. Just because the public goes somewhere doesn't make it a public place. So long as employees are laboring in a specific place, then I do believe the government has an interest in protecting them. Public space is, to me, a wholly separate issue.

It is easy to buy small plaster models of what you think life is like.

10

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Re: Your Freedom or Your Life

rombuu.

Mon Mar 19, 2007 at 04:15:41 PM EST

none

What is a non owner-operated bar?  Some sort of sentient bar?  Advanced AI?

15

^ 10

Re: Your Freedom or Your Life

pO157.

Mon Mar 19, 2007 at 05:23:08 PM EST

none

Corporate?

Like a corporate owned Ruby Tuesday's franchise bar/grill. Which I will never drink in again.... they know what they did.

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^ 10

Re: Your Freedom or Your Life

thefadd.

Tue Mar 20, 2007 at 02:27:33 PM EST

none

The law against smoking in California bars and restaurants is actually a labor regulation, specifically California Labor Code Section 6404.5(b). If the only people who work the bar are the bars owners and they have no employees, then neither they nor their patrons can be cited for smoking or allowing smoking in the bar or restaurant. I believe the same applies in New York City.

In California, the only exemptions to this law are tobacco shops and private homes not used as child care facilities.

It is easy to buy small plaster models of what you think life is like.

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Re: Your Freedom or Your Life

pO157.

Tue Mar 20, 2007 at 02:30:41 PM EST

none

The law against smoking in California bars and restaurants is actually a labor regulation, specifically California Labor Code Section 6404.5(b). If the only people who work the bar are the bars owners and they have no employees, then neither they nor their patrons can be cited for smoking or allowing smoking in the bar or restaurant. I believe the same applies in New York City.

This does provide an out for a mom & pop type bar, but how many of those are left in NYC? I would imagine with the prices of real estate the number of places that can gain this exemption are between none and zero.

Unless... the bar is operated as a publicly traded company with millions of shares and each worker is issued one share upon starting their employment. Unless the law states the owners have to be majority holders of the company this would be a great way around the regulations. (Note to any bar owners: If you use this idea, all I ask for is a simple royalty. Thank you).

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^ 23

Re: Your Freedom or Your Life

thefadd.

Tue Mar 20, 2007 at 02:49:48 PM EST

none

This does provide an out for a mom & pop type bar, but how many of those are left in NYC?

In Los Angeles, I know of 3. But then almost everywhere here also has a patio where you can smoke.

It is easy to buy small plaster models of what you think life is like.

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^ 25

Re: Your Freedom or Your Life

pO157.

Wed Mar 21, 2007 at 12:29:07 PM EST

none

But then almost everywhere here also has a patio where you can smoke.

That would be an acceptable compromise IMHO. Of course, that might not work as well on the east coast in the winter, especially in windy areas, but many bars around here have awnings and such on their patios during the winter with space heaters, so I would think it should be allowed for those who wish to smoke to do it out there. Should take care of the worker safety concerns as well.

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^ 1

Re: Your Freedom or Your Life

humorlesscretin.

Mon Mar 19, 2007 at 11:31:39 PM EST

5.00 (funny, funny, funny)

My question is thus: What the <bleep> happened since then, or was the lovable Mrs. Griscoll smoking a thick doobie herself before class?

The paleocon dinosaurs pretty much all died in the CELE (Conservative Extinction-Level Event) known as the Contract On America.  Their ecological niche has largely been taken over by a range of newer, more venomous species of pseudoconservatives such as the Jail-Striped Neocon and the Empty-Headed Theocon.  It was a sad day for American politics, one the national political ecology still hasn't recovered from.

Humorless. Cretinous. What'd you expect?

5

^ 1

Re: Your Freedom or Your Life

Thalia.

Mon Mar 19, 2007 at 01:57:00 PM EST

4.66 (astute, astute, astute)

There are no "conservatives" anymore.  The people who now control the Republican party believe in "less government help for them" and "more government handouts for us."  They believe in "smaller government for the purposes of doing social works" and "more government for spending on defense & our businesses."  They also believe in "morals as enforced by government" instead of "less interference."  The traditional, old time conservatives, no longer have a party that represents them.  You could say that the libertarians are the closes, but they are mostly nuts.

Thalia

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^ 5

Re: Your Freedom or Your Life

pO157.

Wed Mar 21, 2007 at 10:14:19 AM EST

none

There are no "conservatives" anymore.  The people who now control the Republican party believe in "less government help for them" and "more government handouts for us."  They believe in "smaller government for the purposes of doing social works" and "more government for spending on defense & our businesses."  They also believe in "morals as enforced by government" instead of "less interference."

I couldn't agree more. I believe many folks are under the impression that the above examples of the GOP's earlier values are still the guiding force today, and this is why they blindly stick with them. Who the heck knows?

The traditional, old time conservatives, no longer have a party that represents them.  You could say that the libertarians are the closes, but they are mostly nuts.

Why are they nuts? I would imagine many people believe The Green Party is "nuts" as well, with only 305,000 registered voters nationwide. However, they received 10X that in the 2000 election and some "blame" them for costing Gore the presidency. Yet, if you took the same group, put another zero or two behind their number of registered members, I bet they would no longer be a "nuts" organization in the view of many everyday people.

Might has a tendency of making right, unfortunately. I believe this prevents other "3rd parties" from becoming viable in this country thereby remanding them to the loony toon bin of politics because they don't have major status. And to get major stats in most states requires a load of signatures on petitions or a good showing by a candidate in a major race --- something you can't get without major party status or your group on the ballot. It's a vicious cycle.

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Re: Your Freedom or Your Life

Thalia.

Wed Mar 21, 2007 at 05:26:54 PM EST

4.00 (interesting)

Libertarians are crazy not because they don't have enough followers, but because most Libertarians seem to not have the faintest idea about how human motivation works.  Much like the communists, they assume that people will, as my toddler was taught "get what they get, and not throw a fit."  People are naturally selfish and materialistic.  Assuming that without external pressures people will cooperate gracefully and give up a good chunk of their own benefits for others is pretty unlikely.   In a "libertarian" world most of the people who now advocate libertarian philosophy would become effective slaves.

I consider Libertarians & communists both to be rather deluded, but not necessarily evil.  Greens are a different class all together.  Most Greens are basically liberal, socialist types who want to value the environment above other benefits.  Perfectly achievable goals if you're willing to accept government/external forces to make it happen.  So despite their low membership in the political context, they're not crazies.

Thalia

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Re: Your Freedom or Your Life

shatov.

Thu Mar 22, 2007 at 08:13:44 PM EST

none

Much like the communists, they assume that people will, as my toddler was taught "get what they get, and not throw a fit."  People are naturally selfish and materialistic.

Generally people are not selfish, but jealous -- they want what everyone else has. 'Justice' is so important that people will choose to have a smaller salary as long as they are as well off as everyone else, instead of having a larger salary, but everyone else having a much larger one. However, in this society, how do we define what everyone else has? If the TV shows lifestyles that are available to none but the very richest, but also portrays those lifestyles as normal, won't we want those lifestyles too?
It's our nature to be communal animals, and to want to be equal to others.
Assuming that without external pressures people will cooperate gracefully and give up a good chunk of their own benefits for others is pretty unlikely.

I agree that external pressure is important, and in large societies that external pressure can not come purely from gossip and social retribution. However, local pressure certainly helps in supporting state-wide pressure. Libertarians do seem rather idealistic here, but I'd say that communists generally accept the role played by government. (Note that I denounce Stalin, and authoritarian governments, blah blah blah)

Communists would benefit a lot from paying attention to modern research in human motivations. Previous movements have had big failings in that area. But so have those who advocate the free market, etc., so I don't feel that is reason enough to brand all communists as crazies.

3

Misinformation, and the Fear Factor

keta.

Mon Mar 19, 2007 at 01:48:59 PM EST

none

These two forms of manipulation are what keeps marijuana from being dealt with in a rational manner in the USA.

Upon reflection, these two forms of manipulation are what keeps a LOT of things from being dealt with in a rational manner in the USA.

11

How popular is it really?

Steve Urkel.

Mon Mar 19, 2007 at 04:20:45 PM EST

none

I spoke of politicians above, I forgot to mention that in many states, like Washington, there is also an inititve process, that voters could use to bypass politicians and legalize marijuana. This hasn't happened, even though Washington is solidly Democratic*, which makes me think that even among liberals it is less popular than polls may suggest. I would guess that people with kids, regardless of their other politics, are overwhelmingly against drug legalization. But I have no evidence to support this.

*Though there is a rural/city divide, Washington State is mostly liberal. The last time a Republican presidential candidate won Washington State was when the 20th century's greatest President, Ronald R. Reagan, beat the crap out of Wally Mondale. Since then in Pres. elections it's been all Democrat. At present Democrats control both houses and the Governership.

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Re: How popular is it really?

Thalia.

Mon Mar 19, 2007 at 04:42:00 PM EST

none

11 states have legalized medical marijuana, and two more have removed prosecution for it.  This is a medical marijuana case, not a "should drugs be freely available" case.  It seems that medical marijuana is quite broadly supported by states.  

Thalia

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^ 13

Re: How popular is it really?

Steve Urkel.

Mon Mar 19, 2007 at 04:50:22 PM EST

none

26% is "quite broadly"? I know the topic is primarily about medical marijauna, I find it interesting how so many people who have used the MJ themselves, and are tolerant of others using it, remain reluctant to legalize it.

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^ 14

Re: How popular is it really?

Thalia.

Mon Mar 19, 2007 at 05:31:25 PM EST

none

Given that marijuana has been illegal for quite a lot of years, it's a schedule I drug (stating it has no medical uses whatsoever) having 11 states pass laws legalizing the use of medical marijuana over the last 10 years is pretty broadly indeed.  Especially if you consider the reaction of the federal government.

Thalia

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^ 11

Re: How popular is it really?

humorlesscretin.

Mon Mar 19, 2007 at 11:45:10 PM EST

none

I suspect no one in a good position to do so wants to put their name on such an initiative.  A little smoking among friends is one thing, but does anyone with a professional career want a reputation as "that nutjob who wants to legalize pot"?  I could easily see this leading to job loss, difficulties in the community and endless harassment over a law that might not pass anyway depending on how frothy the security moms get over it.

Humorless. Cretinous. What'd you expect?

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^ 18

Re: How popular is it really?

Steve Urkel.

Tue Mar 20, 2007 at 01:18:02 AM EST

none

I've never heard of anything like that happening to anyone in WA, even after controversial inititives like repealing 'affirmative action', homosexual marriage, and medical marijana. I assume the signatures are public record, I imagine in order to get them you would have to pay for a copy, then search through the hundres of thousands of names. That's a lot of work to find a reason to harass your neighbor. I know "creed" is a protected class as far as employment goes, so I don't think you could be fired for it.  

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Re: How popular is it really?

humorlesscretin.

Tue Mar 20, 2007 at 12:33:08 PM EST

none

I wasn't thinking the random signers so much as the person who starts the initiative going... but if nobody firebombed the house of the guy who started the gay marriage initiative, it's probably a moot point.  Thanks.

Humorless. Cretinous. What'd you expect?

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Look A Little South

uncarved block.

Tue Mar 20, 2007 at 01:47:39 PM EST

none

   Washington may have never tried decriminalization*, but the Oregon Marijuana Initiative was always in the news when I was growing up in the 80s, and even made the ballot a few times. If you want to hang an argument about the popularity of legalization, the defeat of OMI seems a better hook than the absence of a similar effort in Washington. WA voters were more than happy to join other states in passing medical marijuana initiatives given the chance-- IIRC, that was the first time one made the ballot, so a 59% 'yes' vote is a pretty sweeping endorsement, IMO.
   One reason legalization hasn't happened yet, but probably will soon, is the skewing of electoral power to the older voter. The boomers were willing to go as far as medical marijuana; when the next generation, whatever you want to call them, starts turning 60, I suspect legalization will happen fairly quickly, and without much fuss. Pure conjecture, but I would argue that the current generation of voters grew up seeing pot as some kind of "statement", and the next set has grown up seeing it as "just there."
   As for the 1984 election: IIRC, that was the year Jesse Jackson and Pat Buchanan won the primaries. Always thought that was a good encapsulation of the populace, at least at that time, when the massive immigration from other states was just getting started. charlies would be a much better source of info on the matter, though, as he was politically active at the time, and I was just getting through high school.
   So on a personal level, I would have to quibble over the notion that Washington is "liberal". Democratic, sure, as you can't argue with the election results. But go visit Spokane some time, or smaller cities on the wet side like Pasco and Kennewick, or Morton and Mossyrock. Yes, there's bastions of old hippies all over the state, and the major cities are very liberal, but the dry side is another world altogether.

   *IANAL, but outright legalization would get an initiative invalidated from the outset, because states can't contravene federal laws and international treaties. Alaska went the furthest, but even that just meant minimal fines for personal stashes. AFAIK, the drug still has to be technically illegal- especially in large quantities- but enforcement and punishments can vary. If nobody has tried outright legalization, I suspect it's because ballot initiatives don't have that reach.

Ex ignorantia ad sapientiam; e luce ad tenebras

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^ 21

Re: Look A Little South

Steve Urkel.

Tue Mar 20, 2007 at 05:03:55 PM EST

none

"I would have to quibble over the notion that Washington is "liberal". "

I know Eastern WA is righty, but the WA as a whole is liberal enough that if liberals wanted a marijauna initive to pass it would. I agree with your take on the views of younger demographics, but it's kind of odd that doesn't seem to be showing up in results anywhere.

"the 1984 election: IIRC, that was the year Jesse Jackson and Pat Buchanan won the primaries"

Was it that year? I thought it was '88. Washington state has a caucus system where you meet with your neighboorhood precint to make a selection, that hardly anyone participates in. I think it now has added a primary that hardly anyone participates in, while retaining the caucus system.

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Not Just East

uncarved block.

Tue Mar 20, 2007 at 05:55:36 PM EST

none

   If you drive more than two miles off of I-5, it used to be that you could step back into the '50s rather easily. Democrats who want to thrive in this setting tend to be more conservative than those from  the Seattle area, which is why I'm not surprised at all that marijuana legalization never really caught on. Having Oregon leading the way on the issue probably took the steam out of similar efforts in Washington, though I can't say for sure.
    Thanks for the correction on the primary year.

Ex ignorantia ad sapientiam; e luce ad tenebras

26

Re: jury nullification?

shane.

Tue Mar 20, 2007 at 04:47:22 PM EST

none

Is anyone familiar with jury nullification of laws?  Couldn't she have won this case with a jury instead of a judge?  Jury's I believe can find that the law should be struck down even when a judge can't.... I think...

Another questions... when something gets to the supreme court can you even have a jury? Somehow I think not, but I don't know why not.  Can you appeal a jury decision?

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Re: jury nullification?

Thalia.

Tue Mar 20, 2007 at 05:25:19 PM EST

5.00 (informative, informative)

  1.  Jury nullification is something that is hard to get in front of the jury.  Yes, in the abstract, the jury can nullify a law, i.e. vote based not on whether the law was violated, but whether the law was acceptable.  However, judges tend not to allow instructions or discussion of jury nullification in court.  There is quite a lot of argument on both sides of the issue.  It's a fascinating legal topic, and I don't think it has a clear answer.  Jury nullification can be used for good (refusing to enforce laws that are wrong/evil) and for bad (refusing to enforce laws protecting minorities that are not liked in the community).

  2.  This case was a "declaratory judgment" action, in which Raich sought the statement that she would not be prosecuted for consuming/having marijuana.  She has not actually been arrested at this point.  And the Ninth Circuit points out that her "medical necessity" argument may well win in front of a jury.

  3.  Either party can request a jury for a civil case.  No appeals court uses a jury, only trial courts do.  After the trial court's decision, the appeal must be on legal/procedural grounds.

Thalia

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^ 28

Re: jury nullification?

jwb.

Fri Mar 23, 2007 at 03:53:45 PM EST

none

I've found that a quite reliable method of avoiding jury duty is to start passing out jury nullification literature in the anteroom.  I have a nice 1-page folded pamphlet that works perfectly.  And since I happen to believe in juries as a sort of fourth branch of government, I also get the pleasure of spreading my own political philosophy.

I can understand why judges and lawyers become incensed by jury nullification proponents.  They have a large interest in perpetuating the idea of the legal industry as a priesthood.

35

^ 34

Re: jury nullification?

Thalia.

Fri Mar 23, 2007 at 04:41:23 PM EST

none

That and jury nullification has been successfully used to acquit people accused of lynching blacks in the South.  Be realistic about the power of jury nullification.  It's not about protecting turf.

I consider people who deliberately try to get out of jury duty at the same level as people who deliberately avoid voting.  I wish you'd do your civic duty.  

Thalia

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Re: jury nullification?

jwb.

Fri Mar 23, 2007 at 04:56:45 PM EST

none

The handbill I like to pass around talks about the history of juror abuse, racism, and so forth.  It's pretty balanced and historically accurate as far as I have determined.  The basic point of the literature is that our system is built so that two houses of the legislature, the executive branch, and 12 ordinary people all must be in agreement before the power of the law can be used against somebody, and it reminds people to carefully consider their place in the system of checks and balances.

I would be happy to serve on a jury if the jury system would be happy to have me.  Before I started my leaflet act, I was turfed off of juries three times for, as far as I can tell, having studied engineering.  It seems to me that the jury process requires mainly people who haven't been trained in rational thinking.

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^ 36

Re: jury nullification?

Thalia.

Fri Mar 23, 2007 at 07:00:39 PM EST

none

I doubt it very highly that it was because you were an engineer.  And I say this as someone with not only an engineering degree, but also a law degree.  Around here, every jury has an engineer on it, unless the engineer deliberately gets off the jury (like you).

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^ 37

Re: jury nullification?

jwb.

Fri Mar 23, 2007 at 08:47:16 PM EST

none

Well I've reported for jury duty four times.  Three times I was not selected for any jury after answering only basic questions about my identity, education, and occupation.  The fourth time I got thrown out for pamphleteering.

Funny thing.  Since I haven't had any registered vehicles, I haven't been called for jury duty in years, and neither has my wife.  I guess they get their list from the DMV.

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My Experience

uncarved block.

Sat Mar 24, 2007 at 09:53:57 AM EST

none

   I got called once, and served, even though they misspelled my last name. (After I corrected it at the courthouse, the next summons was still misspelled. I didn't respond.) Masters degree in English, and I've never had a license or owned a car in this state. My guess was voter registration; I signed a list outside grocery store, just so I could vote in the 2004 election. After three years of residence, I finally got the paperwork. This is in Arizona, but I don't know if states are allowed to do things differently, though on guess they can.

Ex ignorantia ad sapientiam; e luce ad tenebras

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^ 39

Ah-HA!

gerrymander.

Mon Mar 26, 2007 at 03:24:02 PM EST

5.00 (funny)

(After I corrected it at the courthouse, the next summons was still misspelled. I didn't respond.)

So now the truth comes out, Mr. Incuvée Blick!

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