Tuesday, July 18, 2006

LGBT groups on wrong side of Jury Nullification issue

In this space, we've commented on how so-called "Hate Crime" legislation is nothing more than the implementation of Orwellian "Thought Crime" and "special rights" for LGBT people. And we've even pointed out how such laws can be used against LGBT people, as was recently the case in Provincetown. However, such examples are, at least at the current time, rare. A much more pressing threat to LGBT people is the continuous chipping away at the long-standing legal concept of Jury Nullification by big-government types.
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Jury Nullification, in a nutshell, is the idea that if the legislature passes a bad law, and the executive signs the bad law, and the courts refuse to rule as unconstitutional this bad law, fully informed juries serve as a final check to ensure that innocent people don't have their rights trampled by government. A perfect example of this is an AIDS patient who needs to smoke pot to keep from vomiting up his medication. Despite having laws against marijuana passed by the legislative, signed by the executive, and upheld by the judicial branches, a fully informed jury should be able to render a verdict of "Not Guilty" when determining the fate of the AIDS patient charged with a drug violation. This is Jury Nullification. It's been around for as long as juries have, and it's vital to our system of justice. But prosecutors at every level of government, whose careers hinge on conviction rates, have gotten laws passed in most states requiring judges to instruct juries that they may not use compassion, reason, or their own good common sense in deciding the fate of the accused. Rather, they must only serve as "finders of fact," and if they find that someone broke the letter of the law, they must convict.

Unfortunately, LGBT groups like Equality California have gotten into the act by sponsoring bills like AB 1160, "The Gwen Araujo Justice for Victims Act," which instructs juries that they are not permitted to take into account the "panic strategies" used by defendants in cases like the murder of transgender teen Gwen Araujo in 2002. As much as we may find such "gay panic" strategies to be distasteful, we must recognize that a legal system which allows this kind of jury instruction must also allow the jury instruction to not use compassion in determining the fate of the pot-smoking AIDS patient. Beyond medical marijuana, Jury Nullification also can be used in cases of self defense by members of the LGBT community who arm themselves against queer bashers. It can even be used by protestors who violate the new Constitutionally-insulting "free speech zones" when protesting a conservative government that is increasingly hostile to LGBT equality under the law.

So, why not just let the juries do their jobs? Keep the juries fully informed of all the facts in the case, the alleged motives of the people involved, and the minimum and maximum penalties that can be imposed for given criminal counts. But don't tack on extra jury instructions, penalties for "Hate Crimes," or prohibitions against jurors using their own brains to decide a case. Gwen and Matthew will still get their justice, and so will the AIDS patient, the gun-toting queer who refuses to get bashed, and the protesting activist who won't shut up just because George Bush told her to.