pissing on the constitution

How’d that happen? How the hell did that happen? How could those flannel-wearing meshback motherfuckers be acquitted of crimes they so obviously committed?

Simple. It’s called jury nullification. Basically, that means a jury decides to acquit the defendants even though they’re factually guilty of violating the law because the jurors believe the law itself is wrong or that it’s been wrongly applied.

It’s infuriating sometimes — and this time in particular — but in the long run, jury nullification is mostly a good thing. The most famous case on American soil was that of Peter Zenger, a journalist for the New York Weekly Journal back in 1734. That’s right, 1734, when this country was still a British colony. Zenger published some snarky shit about the Royal Governor of colonial New York, for which the governor had him arrested and charged with seditious libel. This was a pretty heavy crime back then. Seditious libel is when somebody prints snarky shit about the Queen or her officials.

Remember, Zenger had very clearly published snarky shit about a royal governor. He’d committed the crime. That boy was dead guilty. But the jury acquitted him after about (and I’m not making this up) ten minutes of deliberation. This was the case that set the precedent on which the First Amendment rests — which is that publishing snarky shit isn’t a crime if the snarky shit is true.

Jury nullification in defense of free speech

Jury nullification in defense of free speech

Before the U.S. Civil War, jury nullification was used to acquit defendants charged with harboring slaves in violation of the Fugitive Slave Laws. People were clearly guilty of hiding fugitive slaves, but juries found them not guilty anyway. The same thing happened during Prohibition in the 1930s — juries acquitted defendants who were obviously guilty of breaking both Federal and State alcohol control laws.We also see jury nullification used in some ‘mercy killing’ cases. And, of course, we’ve seen the practice at its worst in cases where all-white juries in the South acquitted white defendants of lynching black men.

So what happened in Oregon yesterday is part of an American tradition. It still makes me completely fucking furious to see these yahoos skate, of course. I’m fairly certain this verdict will encourage more of this sort of shit. It especially saddens and disgusts me that a group of armed fuckwits who seized a government facility will mostly walk while Native Americans peacefully attempting to prevent the physical (and, to them, the spiritual) desecration of their land by a goddamn oil company are being arrested. And we know with mathematical certainly what would have happened if folks associated with Black Lives Matter had pulled the same idiotic shit that the Bundyistas pulled.

Jury nullification in defense of armed seizure of federal property

Jury nullification in defense of armed seizure of federal property

But there it is. The Bundy lawyers were able to convince a sympathetic jury that their clients should be acquitted even though they were factually guilty. It’s true, the Bundys are still in jail and will be tried for other crimes committed in another state — but that doesn’t change the fact that yesterday they successfully pissed all over the Constitution.

The only good news to be found in this is that the Constitution is strong enough that it permits people to occasionally piss all over it.

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10 thoughts on “pissing on the constitution

  1. Thank you for putting things into perspective for me. I’m still pissed off, but am able to accept it now. But then now come the law suits and there I go…. well anyway. Thank you for this excellent piece.

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    • Being pissed off, in my opinion, is the proper response to this event. The acquittal is an outrage — a denial of justice. But that’s the thing about jury nullification; we only value it when the jury agrees with us.

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  2. In light of the current political environment as well as the pseudo-religion(IE hate groups) that has backed one or more candidate, this really doesn’t surprise me. While I agree with your POV, I also realize that open rebellion has become a norm (Just look at Trump and his followers and the sudden rejection of both parties that many have chosen). It would seem that our country is tearing itself apart simply because a few are never really satisfied with the freedoms we have been able to enjoy. For some, they want to “cleanse” the country of what has always made it what it was: diversity. Others want to do away with the very document that has afforded us every freedom, but deflect and claim their opposition wants the very same thing.

    Ethically, we live in a very unethical time. Greed is not moral. Hate is not moral. Divisiveness is not ethical. Yet so many want all three. Why? Because we fostered the idea throughout the 80’s and 90’s with movies like Wall Street which preached “greed is good”. We fostered it through the emergence of the “me generation”, which only cared about one’s own interests and not the common good. So who’s to blame? It would seem that we are all to blame for the rise of such people as those who openly defied the government in the name of wanting to put an end to the Constitution only to cite it when their bluff was called. WE are all to blame for the “leaders” we have who want to view this country as having been based on religion, even though the Constitution clearly states that there is a separation. And, ultimately, we are all to blame for the rise of someone like Donald Trump and his legion of hate. Why? because we have clearly deviated from the path our forefathers intended: a path of learning and growing which should have taken us so far beyond ethnic bias (I refuse to call it racism because we are, in the end, all one race: the human race.), greed, religious separation of peoples, and borders. We were to be the leaders, not the followers. We were to lead the world into enlightenment, not back into the shadow of ignorance where hate and fear reside.

    In a time of unbound knowledge, we are the most ignorant and illiterate we have ever been. And we are blissful in that ignorance, preferring not to read for fear it will challenge our beliefs…something we should be doing ourselves on a daily basis to make sure that we are really on the right path. Perhaps this is the philosopher in me ranting, but the world, and especially America, needs more philosophers. More questioners. More who are eager to learn, implement, and experience what they learn to turn it into wisdom. More builders.

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    • This is a terrific rant, and I agree with a lot of it. But I don’t agree that we are all to blame for the rise of someone like Donald Trump. I completely disagree with that.

      Trump’s candidacy is a result of the Republican party’s willingness to take advantage of ignorance and prejudice. They deliberately fed the unreasoned anger of one segment of their political base; they encouraged that anger and resentment, they nurtured that ignorance because it made it easier for Republicans to get elected and stay in office. So no, we’re not all to blame for Trump. Republicans created the social environment that allowed him to win the nomination.

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  3. I have to agree with the previous response. I fear that we, in our ideal of making life better for our children, have created a society of criers and whiners who want everything handed to them on the proverbial silver platter while unwilling to so much as lift a finger to help themselves. This isn’t the legacy I had hoped to leave when the time came to go meet my Maker.

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  4. Well said Greg, as most of your posts are. I was thinking today that the prosecution is partly to blame for allowing a jury to be selected that would deliver this kind of verdict. Surely there must be some Oregon citizens in the jury pool that don’t feel that federal land ownership equates to tyranny. Or maybe it was just a weak charge to begin with. Either way, the jury was not convinced by the case the Justice Department presented. Poorly done guys.

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    • I spent seven years working as a criminal defense investigator, and I have a LOT of respect for defense attorneys. The fact is, defense teams usually consist of just a lawyer and maybe an investigator. Prosecution teams generally have a couple of lawyers, plus all the resources available to the government: massive amounts of personnel, laboratories, forensic scientists, consultants. On top of that, if a case goes to trial, most juries enter the courtroom with a preconceived idea that the accused MUST have done something wrong, or they wouldn’t be there.

      The scales are always massively tilted toward the prosecution, which sometimes makes them lazy and over-confident. It sounds like that was the situation here.

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  5. I don’t really find this jury result surprising, coming out of Oregon. if you’ve ever been in Oregon the vast majority of the state seems to be filled with very conservative or libertarian-leaning kinds of people who distrust and actively dislike government and would rather have no government at all.. We tend to think of Oregon being filled with the liberal types of attitudes associated with the Portland area, but it’s not all that way. A jury of their peers would be in the majority there…

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