Shiiiieeeet

March 6, 2008 11:09 AM

The Wire's War on the Drug War By Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David Simon
posted by AceRock (69 comments total)

I wish the article were longer, because arguing for jury nullification of all nonviolent drug offenses is a radical act indeed (particularly by former cop Ed Burns).

Oh, and there's nothing about season five in the article. I guess we can avoid having a spoiler-filled discussion of how they ...
posted by Bookhouse at 11:18 AM on March 6, 2008

"The authors are all members of the writing staff of HBO's The Wire, which concludes its five-year run on March 9."

While the article itself was great (indeed, I wish it has been longer too), this quote was probably the saddest part.
posted by hopeless romantique at 11:30 AM on March 6, 2008

Does anyone know how often jury nullification happens? Anytime I've been involved it seems like a lot of people have a mindset that they're 'working for' the judge in particular or the legal system in general.

'Don't rock the boat - we're just here to carry out the law.'
posted by echo target at 11:41 AM on March 6, 2008

Wow. That's a powerful piece of writing.
posted by mr_roboto at 11:41 AM on March 6, 2008

That said, jury nullification is an extremely problematic form of civil disobedience. The dispassionate rule of law is pretty fundamental to a functioning democracy. The authors do, however, make a good case that the system is so broken, and our leaders are so incapable of fixing it, that our options are limited to such an extreme protest.
posted by mr_roboto at 11:44 AM on March 6, 2008

I love The Wire SO HARD.
posted by ORthey at 11:45 AM on March 6, 2008 [1 favorite]

Bookhouse: I agree, I would like to see a bit more of their reasoning behind this, although I think that I basically support their stance.

But, hey, this line from the Wikipedia page on "Jury Nullification" is all the proof I need to think that it is a good thing and a legitimate form of political protest:

A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork. In an essay he wrote jury nullification is a "pernicious practice".
posted by papakwanz at 11:46 AM on March 6, 2008 [1 favorite]

Is there anything in that article that will spoil S5 for me?

I hope not.

"And for five seasons, we answered lamely, offering arguments about economic priorities or drug policy, debating theoreticals within our tangled little drama." I'm really glad that they're just coming around to this line of thinking now. Because a show that channeled any of this correctly-argued but unspectacular and tendentious opinion piece would have been infinitely inferior to what they actually produced.
posted by transona5 at 11:47 AM on March 6, 2008

mr_roboto: I think the authors of the piece would argue that in today's democracy there is no such thing as "the dispassionate rule of law." I would add that I don't know that there ever has been such a situation.
posted by papakwanz at 11:48 AM on March 6, 2008 [1 favorite]

Here is a decent jury nullification bibliography, which references an excellent book by my old professor, Thomas Green--Verdict According to the Conscience, which is absolutely essential reading if you're interested in the issue.
posted by kosem at 11:50 AM on March 6, 2008 [2 favorites]

Try telling a prosecutor your feelings about the drug war during jury selection and see how fast he dismisses you.
posted by uncleozzy at 11:51 AM on March 6, 2008 [1 favorite]

That said, jury nullification is an extremely problematic form of civil disobedience.

I disagree. I think it is the last, best safeguard against a corrupt system. There is a reason that juries cannot be held accountable for reaching the "wrong" conclusion, nor can a juror be compelled to delineate his thinking in reaching a given decision. A jury system lets us put the law on trial as well as the defendant.
posted by Justinian at 11:52 AM on March 6, 2008 [4 favorites]

Also, this is some pretty money-where-mouth-is, courageous position-taking. To be expected from these folks, but impressive nonetheless.

Obligatory: if you have not yet watched The Wire, do yourself a favor and rent the DVDs. You will be utterly blown away.
posted by kosem at 11:53 AM on March 6, 2008

Back in the day, racist Juries would nullify the charges against people who used violence against blacks and civil rights activists. Which is an interesting counterpoint, I guess. While I would certainly not vote to convict any drug user, I don't think the nullifcation method is very worthwhile, since it's such a tossup. The laws do need to be changed.
posted by delmoi at 11:54 AM on March 6, 2008

By the way Barack Obama's favorite show: The Wire.
posted by delmoi at 11:56 AM on March 6, 2008

The laws do need to be changed.

I agree, and I think so too do the writers of the article. But I think their point is that in the absence of leaders who are actually willing to change these laws, jury nullification if the only recourse.
posted by JohnFredra at 11:57 AM on March 6, 2008

If you have decided in advance to nullify, wouldn't this be discovered in voir dire? Or would you have to then lie about it as well?
posted by grouse at 11:59 AM on March 6, 2008

Obligatory: if you have not yet watched The Wire, do yourself a favor and rent the DVDs. You will be utterly blown away.

I tried once and failed. I'll try again soon. It may not be as insta-hook as one might think. I'm trying to get my cred by watching though, I really am.
posted by cashman at 12:00 PM on March 6, 2008

Further argument for jury nullification?

Denver citizens vote to make marijuana possession lowest law enforcement priority; Marijuana arrests are up 36 percent since the vote passed 57-43 in 2005.
posted by ofthestrait at 12:03 PM on March 6, 2008

Grouse,
What is the punishment for lying during voir dire?
posted by CCK at 12:04 PM on March 6, 2008

if you have not yet watched The Wire, do yourself a favor and rent buy the DVDs and buy copies for everyone you love as well.

There, fixed that etc.
posted by papakwanz at 12:05 PM on March 6, 2008

"the American collective" - there's a phrase you don't see written half often enough.
posted by Abiezer at 12:10 PM on March 6, 2008

Very powerful - and spoiler-free - read.

It may not be as insta-hook as one might think.
It took me a while, too; my biggest stumbling block was the acting. Lehane's writing sticks out like a sore thumb sometimes, too.
posted by Alvy Ampersand at 12:11 PM on March 6, 2008

cashman, I wasn't really blown away by the show until at least the 4th or 5th episode of the first season. It moves at a pace (and presumes a level of attention to detail on the part of its audience) that's completely unlike anything I've ever seen on television, which was initially off-putting. Just hang in there, I guarantee that once Omar shows up, you'll be completely hooked.
posted by saladin at 12:13 PM on March 6, 2008

I tried once and failed. I'll try again soon. It may not be as insta-hook as one might think. I'm trying to get my cred by watching though, I really am.

It's my favorite television show of all time, but I agree that it isn't instantly engaging. I think it's about episode four or five of the first season when it becomes a great show, and not until season three that it becomes spectacular. YMMV,

Oh, and without spoilers, let me say that I declared that the show jumped the shark this year, but it bounced back to awesomeness.
posted by Bookhouse at 12:13 PM on March 6, 2008

CCK, in many places it is perjury. So it would be unwise to publicly state that you will nullify on drug cases if you ever want to be able to do so.

But I wasn't even thinking of the penalty—I was thinking more of the breach of conscience inherent in lying in court.
posted by grouse at 12:14 PM on March 6, 2008

I got yer jury nullifcation right here:

"Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, [approaches and softens] does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests."
posted by blue_beetle at 12:17 PM on March 6, 2008 [1 favorite]

I was thinking more of the breach of conscience inherent in lying in court.

Exactly. It's one thing to subvert the system like this (which I support), and another entirely to do it in bad faith (which I don't). This would be impossible to implement with any conscience, assuming that the entire jury pool wasn't of like mind.
posted by uncleozzy at 12:22 PM on March 6, 2008

Even if the entire jury pool was of like mind, wouldn't the prosecution just say none of the available jurors were fit and get the trial moved somewhere else?

I like the idea of this, but the more I think about it, the less good it seems possible for it to accomplish.
posted by echo target at 12:31 PM on March 6, 2008

I suspect the sort of wishy-washiness about solutions is because the writers don't actually agree on them. Some have been outspoken as legalizers, others have supported the drug war, at least in part.

I spoke with Ed Burns at a conference and he basically thought the best thing to do was forget about the drug laws for the moment and focus on improving early childhood education (really early: starting prenatally, basically and offering support for caring parenting and advice on child development beginning as early as possible) and experience in the inner city, to at least give the next generation a fighting chance.

So, while I was glad to see this, it saddened me to think they wouldn't propose something stronger.
posted by Maias at 12:33 PM on March 6, 2008

I can't wait to get called for jury duty on a non-violent drug case.
posted by solipsophistocracy at 12:36 PM on March 6, 2008

solipsophistocracy: I can't wait to get called for jury duty on a non-violent drug case.

IANAL, but how many non-violent drug cases (presumably mostly misdemeanors) actually go to trial?

As much as I love The Wire and abhor the so-called War on Drugs, jury nullification seems like something that is neither ethical nor expedient in terms of providing results. None of this is going to change until people start demanding changes in the law.

As much as many of us love the TV show, it's not up to us...it's up to the teeming masses who, for the most part, do not think about these issues because they simply do not affect them. That is what must be changed, IMHO, though your guess is as good as mine as to how this is actually accomplished.
posted by dhammond at 12:49 PM on March 6, 2008

Time magazine: one of the biggest cheeleaders for the War on Drugs. See: issues from the 60's 70's, 80's, 90's, oh hell, any year you care to name, Time magazine has been right there on the forefront of pro drug war propaganda. And NOW they wanna pretend to be all over this issue in this way? It is to laugh.
posted by telstar at 12:52 PM on March 6, 2008

Grouse,
What I was trying to say was if the legal system doesn't bother to tell you of your God given right to find a law unjust how can anyone feel bad about subverting that system. And if you have to lie to get on the jury, it is unlikely you will be caught anyway.
posted by CCK at 12:52 PM on March 6, 2008

if the legal system doesn't bother to tell you of your God given right to find a law unjust how can anyone feel bad about subverting that system

You can think a law is unjust but that doesn't necessarily justify perjury. I don't think the perjury laws are unjust.
posted by grouse at 1:03 PM on March 6, 2008

# “It may not be as insta-hook as one might think.”

I wasn’t hooked until episode 9, Game Day. I believe that may have been the best episode of any television show, ever.
posted by breaks the guidelines? at 1:03 PM on March 6, 2008

Even if the entire jury pool was of like mind, wouldn't the prosecution just say none of the available jurors were fit and get the trial moved somewhere else?

For jury nullification to work, you have to lie in the voir dire. That's one thing that makes it problematic.
posted by mr_roboto at 1:16 PM on March 6, 2008

Cool stuff. I'm glad they're being so outspoken about it.

I'm also pleased that so many people who wouldn't ordinarily see that kind of environment are being shown a fairly accurate portrait of it.

That means I'm easily overwhelmed and depressed by it (been the same for so long, and it seems like it'll never change), though, so I don't personally watch The Wire.

Maybe by it being out there, though, people who can help make a difference can see where their inner-cities need them.
posted by batmonkey at 1:31 PM on March 6, 2008

You can think a law is unjust but that doesn't necessarily justify perjury. I don't think the perjury laws are unjust.

I would agree about perjury laws themselves are proper, but if "the man" obfuscates your rights and uses your knowledge of those rights to preclude you from participating, I have no loyalty to their oaths.
posted by CCK at 1:41 PM on March 6, 2008

CCK: but if "the man" obfuscates your rights and uses your knowledge of those rights to preclude you from participating, I have no loyalty to their oaths.

Not to split hairs, but jury nullification is a de facto right, in that it's not really possible to prevent jurors from using it, but it's not an "inherent" right because it undermines the entire jury process. If you applied the yardstick to all cases, we'd have some pretty big problems on our hand and the legal system would essentially break down.

As I mentioned before, I'm very much against many of the drug laws in this country, but what "right" does each juror have to simply decide that a law is stupid and worthy of ignoring? Before answering, please re-read delmoi's comment about how jury nullification has historically been used to excuse crimes by racists. Or, in the context of the The Wire, the crimes of an obviously corrupt city official. Sheeeeeeit, indeed.
posted by dhammond at 1:54 PM on March 6, 2008

I just heard part of an interview with David Simon on Fresh Air. There might be spoilers, so listen at your own risk!
posted by rtha at 2:01 PM on March 6, 2008

dhammond,
I read the same wiki article that delmoi is referencing. Has it been abused in the past? Absolutely. But to disqualify someone because they are aware of their right to use it is just as wrong. It is akin to stacking the jury with prosecution friendly faces. Which is more wrong to me. So when that is the yardstick that is used. I would have no moral issue with lying on that issue to get on a jury.
posted by CCK at 2:08 PM on March 6, 2008

mr_roboto writes "That said, jury nullification is an extremely problematic form of civil disobedience. "

It's civil disobedience? Thinking rationally about the law and applying it (or not applying it) as you see fit when you're on the jury is civic duty.
posted by mullingitover at 2:12 PM on March 6, 2008

rtha: There's a pretty big spoiler within the first minute of that...

Marlo's voice still gives me chills...
posted by hototogisu at 2:15 PM on March 6, 2008

It's civil disobedience?

You lie in voir dire, which is perjury, and disregard the jury instructions, which is contempt of court.
posted by mr_roboto at 2:15 PM on March 6, 2008

The role of a criminal jury is not to think about the law, rationally or otherwise. Juries decide questions of fact; judges decide questions of law.
posted by mr_roboto at 2:17 PM on March 6, 2008

rtha: There's a pretty big spoiler within the first minute of that...

I figured there probably was, but I only heard the last 15 minutes.
posted by rtha at 2:19 PM on March 6, 2008

Mr Roboto,
Seriously, Civil disobedience is breaking the law, knowing that you're breaking the law. So if you do believe its perjury and contempt of court, then in its strictest sense it is civil disobedience.
posted by CCK at 2:24 PM on March 6, 2008

mr_roboto writes "The role of a criminal jury is not to think about the law, rationally or otherwise. Juries decide questions of fact; judges decide questions of law."

What's worse, perpetrating injustice or breaking the rules? When the rules are unjust, it's your duty to break the rules. It's that whole 'right and wrong' thing.
posted by mullingitover at 2:31 PM on March 6, 2008

the legal system would essentially break down.

You say this like it would be a bad thing.
posted by TheOnlyCoolTim at 2:46 PM on March 6, 2008

As some folk said further up, it would have been interesting to see the writers expand further on the jury nullification thing; it's something I'd never really heard about before – shamefully, I don't even know if the concept exists in the UK, though I suppose there might be some analogous idea, given the shared legal constructs of the US and UK.

Incidentally, following the link about Obama and The Wire upthread, and chasing subsequent links, I came across this, a definite worthwhile read from the Columbia Journalism Review which I hadn't seen posted here before: Secrets of the City: What The Wire reveals about urban journalism.
posted by Len at 2:53 PM on March 6, 2008 [3 favorites]

mullingitover: When the rules are unjust, it's your duty to break the rules. It's that whole 'right and wrong' thing.

I would argue that it's not up to jurors to override the legislature and decide for themselves which laws are just and which are not. I have a hard time believing you would argue in favor of jury nullification were it, let's say, a case of letting a gun nut with 50 assault rifles go free because you happen to think that the Constitution allows for the right to bear arms.
posted by dhammond at 3:02 PM on March 6, 2008

dhammond,
I don't understand, go free how? What crime?
posted by CCK at 3:06 PM on March 6, 2008

So if you do believe its perjury and contempt of court, then in its strictest sense it is civil disobedience.

That is the structure of the argument I'm making in response to mullingitover's (possibly rhetorical) question, yes.

What's worse, perpetrating injustice or breaking the rules? When the rules are unjust, it's your duty to break the rules. It's that whole 'right and wrong' thing.

Hence "civil disobedience".
posted by mr_roboto at 3:07 PM on March 6, 2008

how about:

step 1: march on washington
.
.
.
.
.
step >1: subvert our the rule of law

im in their corner on this one but... maybe i missed something?... seems like we're skipping steps.
posted by MeatLightning at 3:49 PM on March 6, 2008 [1 favorite]

The role of a criminal jury is not to think about the law, rationally or otherwise. Juries decide questions of fact; judges decide questions of law.

That's certainly one viewpoint; it is not, however, a fact. It's an opinion on how the system should work.
posted by Justinian at 4:00 PM on March 6, 2008 [1 favorite]

The role of a criminal jury is not to think about the law, rationally or otherwise. Juries decide questions of fact; judges decide questions of law.

Judges decide questions of fact all the time by proxy, based on what evidence they exclude, what testimony is to be disregarded, and what penalties are to be applied if a guilty verdict is reached. The line in the sand is constantly moving up and down the beach depending on the tide.
posted by Civil_Disobedient at 4:13 PM on March 6, 2008

If you don't watch The Wire regularly it might sound like a profoundly depressing show, but the writing and acting really set it apart.

I saw the series finale last night and was very satisfied with how they played things out.
posted by First Post at 4:18 PM on March 6, 2008

With regard to the same idea in the UK, it's happened in a number of Official Secrets Act cases I believe, e.g. Clive Ponting.
posted by idb at 4:18 PM on March 6, 2008

From Duncan v. Louisina (1968):

Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority...Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge...Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.

posted by AceRock at 5:03 PM on March 6, 2008

We've discussed jury nullification here before. As for The Wire - we just started watching the first season, and it took the first three episodes to start to see why our friends are so gung ho about it. But it's growing on us, enough to watch a few more episodes... and I'm not a TV watcher generally.
posted by dilettanti at 5:12 PM on March 6, 2008

The times I've been called to jury duty, the issue of jury nullification has never come up in voir dire--in fact, my girlfriend tried to bring it up once, in response to a question about drug laws, and the judge told her that he didn't want it mentioned in his courtroom (apparently many judges wish to keep potential jurors in the dark on this?). It is in fact possibly the most basic right we as citizens have, the ultimate check on the power of the state.

A few quotes on the issue:

In 1789 Thomas Jefferson wrote:
"... It is in the power, therefore of the juries... to judge the law as well as the fact."

Jefferson regarded jury nullification as the most important check on government. In 1789 he also wrote:
"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

In 1794 First Chief Justice of the U.S. Supreme Court John Jay said, "The jury has the right to judge both the law as well as the fact in controversy."

John Adams: "It is not only [the juror's] right but his duty.. to find the verdict according to his own best understanding, judgment, and conscience even though in direct opposition to the direction of the court."
posted by LooseFilter at 5:17 PM on March 6, 2008 [7 favorites]

It seems to me that it is important to separate the concept of jury nullification as a political act (overt civil disobedience) from the concept of jury nullification as a private act of conscience.
posted by BrotherCaine at 5:57 PM on March 6, 2008

A former criminal law professor of mine, Paul Butler, wrote some scholarly articles on jury nullification (as well as some pieces that appeared in the popular press and magazines like Harpers or Esquire or something). He basically made the same argument. You can read it in the Yale Law Journal: "Racially Based Jury Nullification: Black Power in the Criminal Justice System," 105 Yale Law Journal 677-725 (1995).
posted by Falconetti at 6:01 PM on March 6, 2008

The whole of season 5 is now online at surfthechannel.com. Yes, that includes the final episode that doesn't premier until this sunday.
posted by wolfewarrior at 6:03 PM on March 6, 2008

All in the game yo, all in the game.

~Omar
posted by bwg at 7:59 PM on March 6, 2008

the legal system would essentially break down.

The joke is actually on us: it's already broken down. Actually, it's already been gutted, we just haven't noticed it yet. Read ofthestrait's link. The people of Denver passed a law mandating that their police force make arrests for marijuana their lowest priority. The answer from the police and DA was "no". Not, "Ok, we'll do what you, the voters, want" or even "Well, lets wait and see what the Colorado Supreme Court says about this...". They just said "no".

Think about that. The people pass a law, but the government said "no, we refuse to follow it".

Think about how the writ of Habeas Corpus has essentially been suspended in all but name (Oh don't worry folks -- only enemy combatants can be held without trial. Oh, wait, who gets to decide who is an enemy combatant? The President.) while our self-same President has also seen it fit to "interpret" laws passed by Congress and in some cases, state openly that he will ignore laws that he disagrees with.

When you have local governments and the President of the United States boldly stating that they are under no obligation to follow laws that they disagree with, I think you can make a pretty strong case that our nation's legal system is fundamentally broken, and no amount of jury nullification could make it any worse. In fact, I think you could argue the exact opposite.

Our nation's leaders have put the onus on the common public to obey the laws that they pass, while reserving the right to ignore or negate laws for themselves. They fear jury nullification because it turns the tables on their little game, and brings justice, in however meager a fashion, back into the realm of the common man.
posted by Avenger at 8:33 PM on March 6, 2008 [5 favorites]

LooseFilter: Thanks for those quotes. How ironic that supposed strict constructionist Robert Bork would be so opposed to jury nullification.

Wait, not ironic... completely predictable and douchebaggy. Yeah, that.
posted by papakwanz at 8:34 PM on March 6, 2008

I don't understand why you need to make a big deal out of "Jury Nulification." If you're on a jury and the law the defendant is accused of violating is unjust, vote "Not Guilty" and stick to your guns. You have no obligation to explain your reasoning.
posted by straight at 12:31 PM on March 7, 2008