The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Sunday, August 30, 2009

Arguing the law

In 2002 there was a ballot issue (that I helped put on the ballot), a proposal for a constitutional amendment dealing with the criminal justice system, on which South Dakotans voted and defeated 80%-20%. The margin of defeat was due in large part to the frenzy with which the lawyers attacked it.

We proposed that people accused of a crime, in addition to being able to hire a professional to defend them, to see evidence against them, to question witnesses against them, etc., be able to “argue the merits, validity, and applicability of the law, including the sentencing laws.”

In the pamphlet distributed by the Sec. of State, which gives an opponent and a proponent of each of the ballot questions a few hundred words to argue their positions, SD State Bar representative Bob Frieberg made the outrageous statement that passage of Amendment A would allow a jury to “impose a trivial fine for murder.”

There is a law in SD that prohibits a person from publishing a statement about a ballot question that (s)he knows to be a lie. As a lawyer, Frieberg knows that juries do not impose sentences. Period. He committed a misdemeanor, as did the Sec. of State (although the SOS's commission was unintentional). My complaints to the Attorney General went unanswered, of course, since Frieberg is a sycophant of all things Attorney Generalish.

Those defecations of character having been made, I’m interested, after seven years have passed (and the statute of limitations on prosecution for that crime having expired), what Forumpians think about the proposal today.

Should someone accused of a crime be able to argue that, while (s)he may have violated the law, the law itself is stupid or has no merit, or that it should not apply to the specific instance involving that defendant, or that the possible punishment for its violation is excessive?


Bill Fleming said...

Argue in what way, Bob. You mean in court, on your own behalf? Or have your lawyer argue it for you? Or appeal to a judicial review committee, or what?

Bill Fleming said...

You can of course, argue the injustice of any law you want to now. (Well, I mean I can. You can't because, well... sorry... you CAN, but I don't think you should... but only on just that one thing.)

Taunia Adams said...

I keep rereading this, and I'm still confused.

Seven years have passed since the "lie" by Frieberg happened or seven years since your anonymous "someone" was accused of something for which now they are charged in a court of law and must defend themselves in front of a jury?

If this is about the first seven years in question, why are you bringing this up now? Especially considering what you have on the table. BTW, are you doing an appeal? (These questions are not, in any way, a "set up" and are not meant to induce any "taboo" discussions. Email me if you choose.)

If not, then you're referring to jury nullification? I like it. If a jury sees a gross injustice with a certain law someone's been charged with breaking, should they be bound to find that person not guilty/guilty to an injust law?

Bob Newland said...

The amendment proposed that an accused person be able to argue the merits, validity and applicability of the law at any point during his prosecution.

Those abilities are not available to accused people now. Judges "interpret" the law. Accused people are only allowed to argue as to whether they violated the law.

Taunia, Frieberg's violation occurred in 2002. There is a seven-year limitation on bringing charges for any misdemeanor in SD.

And, yes, the principle is referred to vulgarly as "jury nullification." I prefer to refer to it in this sense: in some cases, juries consider the law carefully and find it wanting.

Bill Fleming said...

Thoreau called it "civil disobedience."

As did Gandhi, MLK and Cesar Chavez.

As do I.

However, regarding its prescription, I find the best results are obtained when taken in moderation.

Bill Knight said...


That is an interesting question. And from my extremely limited legal viewpoint (as I don't have much experience in these affairs), it goes back to the question of whether or not someone is morally obligated to follow the laws of the country they live in. I don't want to get in a discussion on that particular question however because I think it could turn into a thesis paper (or maybe it would be good to have that discussion here!) However, in this particular point, I need some clarification. In debating the merits of the law in a legal system, would this then allow the accused to be indemnified from his crime? If so, then we create a system that again brings "law-making
to the courts, and that my friend, is a dangerous situation indeed.

Or maybe I just misunderstood everything you asked!

Bob Newland said...

The proposed amendment to rights of accused persons would allow an accused person to say something like the following at any point (including during trial) between being charged with a crime and being acquitted or convicted:

"I did what I am accused of, but I should not be punished for it because...."

Currently, a jury is usually instructed that it doesn't matter why someone did an act; if the act is illegal, he should be convicted. Currently, if an accused starts explaining a rational reason for having committed an act, he is threatened with contempt of court for doing so.

If someone tells a jury what the punishment for the act is, a mistrial results immediately.

Some of us think that is bullshit.

Anonymous said...

In certain situations jury nullification should most definately be used. Most of our lawmakers don't have the guts to change some of the idiot laws we have.
I would vote in favor of your amendmant.