Re: jury nullification, jury veto, jury pardon

In article <[EMAIL PROTECTED]>,
"Scout" <[EMAIL PROTECTED]> wrote:

>"Larry" <[EMAIL PROTECTED]> wrote in message
>news:[EMAIL PROTECTED]
>>
>> You CAN violate the law BY ANY MEANS *if* that means is REASONABLY
>> NECESSARY to protect yourself or another from an UNJUSTIFIABLE RISK OF
>> HARM.  See, Scout, it is carte blanche, as long as it satisfies the
>> definition of the justification statute.
>
>Cool, so if I feel it's necessary to burn down an occupied apartment
>building to distract a murderer so that I can protect myself or another,
>then it's perfectly justified by the law.

Sigh.  No.  But you're getting close.

The Model Penal Code (MPC) says the force used in self-defense must be a
lesser harm than that which you're facing.  So burning down an empty
building to save your life is justified; killing multiple people inside a
building to save your single life is not.

Even the NY and VA statutes I cited say you can do whatever is "reasonably
necessary" - you ne3ed to convince a jury that whatever step you took was
reasonably necessary, and not excessive or unreasonable.

>Hmmm.... Kill 100's to save myself.
>
>Again I doubt that any jury in the land would accept this as a defense.

They don't.  See above.


>> >
>> >Further as the law states in this case this exemption ONLY applies to
>being
>> >prosecuted for assult. Doesn't mention anything at all about other
>offenses.
>> >
>> >Such as say illegally carrying a concealed weapon.
>> >Perhaps illegally owning said weapon
>> >Maybe even having said weapon be stolen property.
>>
>>
>> Correct, none of these are protected by the jsutification statuetes I have
>> cited to you.
>
>Niether is discharging a firearm within the city limits, but you assert they
>apply to that crime.....

Because the act of discharging the firearm is what you did in self-defense
when facing an imminent threat.

>After all, if it was protected, those justification statutes would SAY SO.
>They don't. Just as they don't say anything about these offenses. Seems like
>you can't do anything you want in self defense.

Huh?  I thought we established that the justification statutes don't spell
out particular means of self-defense that are allowed.  You're talking in
circle, Scout.  Stop.  Think.  Consider.  Then respond.

>>  Like the Bernie Goetz case.  HE was convicted of possessing
>> a concealed weapon, but not for using it.  I can provide a citation to the
>> decision for you, sinceit directly addresses your scenario.
>
>Oh, so what you're telling me is that the law CAN prohibit certain means of
>self defense by making it illegal. That is the effective result of what you
>just told me.

Yes, the law CAN do that.  There CAN possibly be a law that says "9 MM
Berreta handguns cannot be used in self defense" or "kicking someone in
the crotch cannot be used in self-defense."  But there aren't such laws,
so what's your point?

>
>Can't possess a concealed firearm, is a prohibition against using a
>concealed carry firearm in self defense.

No it's not.  A law saying you can't possess a concealed firearm is a
prohibition against carrying a concealed firearm.  It says nothing about
suing a concealed firearm.  Basic English, Scout.

 Why because even though you used it
>in self defense you still violated the law.......

Yes, and you SHOULD be convicted for carrying a concealed firearm.  See
Bernie Goetz.

>just as would discharging a
>firearm within the city limits.

Yes,, EXCEPT justification statutes apply here.  If the jury doesn't think
the discharge was justified (like if you fire into a crowd for no reason),
then you're guilty.  If they do think you're justified (as in
self-defense) then you're not guilty.

>Seems like your assertion that the law
>allows you to do anything in self defense isn't justified since you are now
>pointing out that you can act in self defense and STILL be in violation of
>the law.

THAT'S EXACTLY WHAT JUSTIFICATION MEANS.  You admit your action is
illegal, but you argue it was justified under the circumstances.

>
>
>> >Are you telling me that because the weapon was used in self defense these
>> >other violations do not apply because he is allowed to break the law in
>any
>> >means he likes as long as it is a matter of self defense?
>>
>> Firing the gun is the act of self defense.  Possessing the gun is not.
>> Concealing the gun is not.  Owning the gun is not.  All of these may be
>> illegal.  But the act of USING the gun in self defense MAY be justified.
>
>And maybe not. That is what you are attempting to say.

It's not what I am attempting to say, its precisely what I am saying.

>Except that you haven't shown my in the law where there is a problem with my
>misunderstanding. You simply assert there are things in the law which aren't
>there that apply......sometimes, but not others. Seems like it's a matter of
>opinion, not law.

I've cited 3 actual statutes and a model code, and I have explained the
rationale to you ad infinitum.  I don't see how else I can "show you in
law" anything.

>> >> Yes, it does.  If the law says "reasonably necessary" but does not say
>> >> that firing a gun is specifically reasonable or unreasonable in a given
>> >> situation, then it is for a judge or jury to decide.  Get it?
>> >
>> >Translation: Jury nullification.
>>
>> Scout, how is it jury nullification if the law specifically says it?  An
>> acquittal on the grounds of sel-f-defense is a jury that FOLLOWED the law!
>
>Except that you haven't cited that the law specifically says any such thing.
>Self defense is not automatically a protection against legal violation.

YES IT IS.

If a jury finds that the legal violation was reasonably necessary to
protect you from the harm you faced in that specific instance.

>You
>have admitted to that above. Yet, you then turn around and try to tell me
>that despite such a protection in the law, the person who broke the law
>shouldn't be found guilty of that violation. The law says one thing, you
>assert it shouldn't apply. Sounds like nullification to me.

But "justification" isn't my idea.  If it was my idea, then that would be
nullification.  But it's the law. 

The law that says you can't fire a firearm in city limits probably has an
exception for police officers doing their job, right?  So if a police
officer discharges his gun while performing his job (assuming it was
perfectly appropriate for him to do so) is he guilty?  NO - the law says
he was allowed to do so.  It doesn't matter if the exception is part of
the fireamrs law or part of another statute, it's all the law.


>> >Got it. The law says that firing a gun within the city limits is
>> >unreasonable....the judge or jury should nullify the law and allow the
>> >person to walk despite his clear violation of law.
>>
>> All correct except your use of "nullify."  If you substitute "acquit" for
>> "nullify the law" you have perfectly described the effect of a
>> justification statute.
>
>Ah, so as long as they feel the legal violation is "justified" the jury can
>nullify...excuse me...acquit the defendant no matter what the law says, or
>how clearly are the facts that he violated that law.

You're talking in circles.  The law of justification precisely means that
the jury can acquit the defendant no matter how clearly the facts are that
he violated the law if the jury feels the violation is justified.  So yes.

Say Adam starts a fight with Bob by punching him.  He hits him 3 times. 
Bob punches back once.  The state law for assault makes it a crime to
"intentionally strike another with the intent of causing pain or injury."

Did Bob commit a legal assault?  Yes.  Was his action justified - that is,
was it a reasonably necessary response to protect himself from the harm he
was facing?  Yes.  Should a jury, applying the law, find Bob guilty of
assault?  No.  Is this nullification? No  -its what the law says to do. 
To *convict* Bob would be a nullification of the jsutification statute.


>
>Ok, got it.

Great.  Discussion over.  Because this is really what it is.

>I'll just call it "jury acquital" from now on, since it is the result, not
>what you chose to call it that really matters.

It is an acquittal.  An acquittal as required by law.

<snip>

>Yep, and the assumption is that anything which is illegal is necessarily
>consider UNREASONABLE.

But a specific person's conduct in a specific situation is not illegal
until he pleads guilty or a verdict of guilty is found.  You're being
circular.

>Does a exemption to this offense exist for self defense? Nope, then it would
>seem the law could find such an action unreasonable.

The law COULD find such an action unreasonable.  That's exactly why we
have juries.

>or are you telling me the jury should decide what is reasonable for
>themselves rather than accepting what the law says is reasonable or not?

The law says the jury is to decide if it was "reasonably necessary" force
that was used in self defense.  If it was otherwise legal, there would be
no need for the jury to consider it.  Because you can do anything
unreasonable you want, as long as it's legal.  Get it?  The only situation
in which reasonableness matters here is whether the VIOLATION OF THE LAW
was reasonable considering the situation.

>>  It's up to a jury to decide if whatever act was
>> taken (i.e. firing a gun) was reasonably necessary for that specific
>> situation.
>
>Exactly.....even if the law says such an act is illegal, and hence legally
>unreasonable. Jury nul...I mean acquital.

Yes.  Acquittal.  But an acquittal because a jsutification statute is on
the books, and because the jury applied that statute to the situation. 
How is this possibly nullification?

>> >Well, it's clear that what you are calling the law is really just a
>matter
>> >of an established practice of jury nullification. Because as you admit
>the
>> >law does NOT find firing a firearm within the city limits to be a
>reasonable
>> >practice at ANY time, as there are no exclusions within the statute for
>self
>> >defense.
>>
>> There is no reason whatsoever the exception allowing the firing of a gun
>> needs to be in the statute prohibiting the firgin of a gun.  Because there
>> is a jsutification statute, such an exception would be redundant.
>
>Except that your justification statute does not apply to actions which are
>deemed unreasonable, and those actions which are made illegal (except where
>specifically allowed for in special cases) would seem to be act which are
>legally deemed to be unreasonable.

Scout, If you are attacked, there are four catregories of actions you can
do in self-defense, according to the paradigm you've set up:
* a legal, reasonable action -- since it's legal, you won't be charged
with anything and a jury won't have anything to decide
* a legal, unreasonable action - it may be unreasonable, but if it's still
legal, you won't be charged with anything and a jury won't have anything
to decide
* an illegal, reaonable action - since it's illegal, you will be charged. 
But since the justification law SAYS you can take reasonable (considering
the circumstances), buut illegal steps in self-defense, you'd be acquitted
by a jury. (example: firing a gun at someone who is shooting at you)
* an illegal, unreasonable action -- since it's illegal, you'll be
charged.  And since your act is unreasonable, it's beyond the scope of the
justification statute.  Since the justification statute doesn't save you,
you're guilty of committing the illegal act. (example: burnging down an
occupied, high rise building to save your life)