Clay S. Conrad, the author of Jury Nullification, the book under discussion this week by Instapundit, How Appealing, the Volkh Conspiracy and others, has responded to TalkLeft's post on the issue. It's in the comments section of the post, but we are reprinting it here so more people can see it. Thanks, Clay!

"As so many are citing my book on here, I rather thought I should offer my own two cents worth.

First, it is useful to think of jury instruction as an affirmative defense that the law is unjust or is being unjustly applied. Now Eugene Volokh is concerned that juries will nullify defenses, acquitting the innocent. If a JN instruction is only available at the urging of the defense, however, there is no reason to believe this would increase nullification convictions (what I call "reverse nullification" in the book.) Defendants are unlikely to ask for nullification instructions in cases where they don't believe the jury is likely to go their way. And the State should never be able to request such an instruction, because, in the words of Duncan v. Louisiana, the purpose of trial by jury is to prevent oppression by government. (That's also one reason JN is mainly a criminal law doctrine: there is little government oppression in most civil cases, property forfeiture cases being the major exception to that rule.)

Secondly, it should be noted that in Old Chief, the Supreme Court noted that prosecutors are already permitted to put on evidence to establish the moral underpinnings of their cases. If they can do this, then certainly the defense should be entitled to reciprocal evidence showing that the law is not morally supportable. Once such evidence is in, the jury should have somewhere to go with it.

Many federal judges - like Judge Weinstein in NYC and Judge Hoyt in Houston - already broaden the scope of admissibility to allow a defendant to put on nullification evidence. And this, I think, is proper and good. However, it is ridiculous to allow the evidence in, and then not to give either instruction or allow argument as to how the jurors should use the evidence.

Jurors have a role to play as a pressure valve, as a regulator, in the American system of justice. We shouldn't try to seal off the safety valves too tightly, because when the pressure builds up it should be released. Thanks to the war on drugs and our increasingly prosecutorial society, the pressure can get pretty intense some time.

We need some common sense - and jurors are the best source for keeping the actions of the criminal justice system in line with the thoughts of the community. Prof. Norman Finkel, in his wonderful study Commonsense Justice, demonstrated that juries do a remarkably good job of reflecting public sentiment - a better job than the legislature can do. We need to let that voice speak, and then we need to listen to that voice very carefully.

Finally, I think being honest about jury nullification simply shows respect for jurors - to tell them "yeah, you have this prerogative, and this is how it is intended to be used, this is the purpose of this power which the Founders meant for jurors to retain."

I actually went for jury duty today, and was not seated in a civil case. The lawyers for both sides went on and on about how they wanted an impartial jury. During a break, the whole venire panel had a good laugh at those lawyer's expense. Everyone realized that NOBODY wanted an impartial jury. The judge was a possible exception, but he was more concerned with getting 12 people who'd come back on time from lunch than with whether they were partisan or not.

Let's treat jurors like adults. Let's tell them the truth about their role in our courtrooms. Let's tell them that if they cannot conscientiously convict, whatever the evidence, whatever their instructions, they retain the lawful prerogative to, in our former First Lady's words, "just say no." "

Clay S. Conrad

Howard Bashman, author of the first, best and most informative appellate law blog How Appealing just issued TalkLeft a challenge:

"Will TalkLeft condemn today's action by Louisiana's Supreme Court because it removed from office a trial court judge whose conduct caused convicted criminals to obtain their freedom? Only time will tell."

You bet we criticize the Louisiana court's decision. Not because we delight in convicted criminals going free, but because the sanction of removal was far too harsh for this Judge's misdeeds.

First, we acknowledge, as did Sharon Hunter, the Judge under attack, that in the past several years her court lost key parts of trial transcripts resulting in 11 reversals including five murder cases. (Note, the sources for the quoted material below are New Orleans Times Picayune articles published August 19, 18, 17, 16 and 12--available on Lexis.Com.).

The Louisiana Supreme Court had several options in Judge Hunter's case: Upon finding she engaged in the specified misconduct, they could have censured, suspended or removed her. The Court chose the harshest sanction, removal.

Judge Hunter, and her lawyer, Jim Boren of Baton Rouge, one of the finest and most dedicated lawyers we know, argued that Judge Hunter should be disciplined, but not disrobed, and that she deserved a second chance. We agree.

First a little background. Six years ago, Judge Hunter became the first black woman to sit on the criminal court bench in New Orleans. She is a New Orleans native who received a bachelor's degree in political science from Xavier University and graduated from Southern University's law school in 1980.

Boren told the Court that Hunter was a rookie judge when the trial tapes in question were lost, and that despite the "public humiliation" of the past several months, being suspended from the bench and blasted by the Judiciary Commission, she wants to improve.

Boren charactarized Judge Hunter as a hard-working, honest judge who fell off track. He said this was in part attributable to the fact that as the first black woman judge in New Orleans Parish, she was an outsider who lacked the mentors that other new judges have.

As Boren pointed out, Judge Hunter was not the first New Orleans Judge to have problems with transcripts. She did not invent the problem. She did not do anything intentional in delaying them. The problems occurred early on in her judgeship, and she had tried to correct the problem. The record corroborated her improvement.

Judge Hunter personally apologized while appearing before the Lousiana Supreme Court for the mismanagement of her courtroom. But she also made it clear that while she would take the fall, part of the blame for messy record-keeping lay with former employees, particularly court reporters who routinely broke her rule against removing audiotaped recordings of trials from the courthouse.

In owning up to the problems, Judge Hunter told the Court,

"I've taken responsibility, and I do feel responsible as a judge and a supervisor. .. I fault myself for not doing something more aggressive in supervising former court reporters. It's a massive caseload over there. Court reporters frequently take tapes in and out. You trust them because they are licensed professionals."

Her lawyer said Judge Hunter is willing to have a supervisor present in court to help her improve her managerial skills. He compared the judge's management problems to "clumsiness, using an analogy of a child breaking its parents' priceless vase while dusting. It's broken, he said, but that is different than if the child had smashed the vase while playing ball in the house."

Hunter has undergone a "high-tech lynching" of her character, Boren said. (The same phrase was used by U.S. Supreme Court Clarence Thomas to describe his embattled 1991 confirmation hearings.)

Hunter acknowledged, through Boren, that she has not been great at accepting criticism or dealing with subordinates and problems. But neither have other judges. In a brief to the Court, Boren said, "Let the judge who is without those sins cast the first vote to remove her."

Boren said the Judge knows she has to "clean up her act." He also pointed out that one of her cases was resurrected last week after tapes of the trial were found by court staff. On Wednesday, the 4th Circuit Court of Appeal reinstated a murder conviction and life sentence for one of the affected defendants.

Charles Jones, one of the 4th Circuit judges deciding the case, acknowledged Judge Hunter's turnaround in a concurring opinion and wrote, "Much has been made of this district judge and her competence as a trial judge, but the newfound tapes prove she did her job."

Significantly, as Boren argued, Judge Hunter's administrative bungling and disorganized files came nowhere near the intentional misconduct of other judges who have been subjected to removal.

"This is not something evil, this is not a fraud or a theft," Boren wrote in his brief. "This is a judge who is poorly organized and is not a good administrator or manager but who is not incorrigible and who is not beyond redemption."

Many of Judge Hunter's constitutents support her. As one of them, Glenda Harper, wrote to the Times Picayune (published August 12),

"Selection of judges by the power elite (i.e. merit selection) is an idea whose time has passed. I am a 61-year-old black woman who remembers our struggle to get our constitutionally guaranteed right to vote. It amazes me that we are still fighting for our right to elect the people we choose. Your current editorials focusing on Judge Sharon Hunter as an example of the poor state of the judiciary are simply a smoke screen for your real agenda."

"Judge Hunter worked hard to campaign for the seat she now holds. The problems she faced as the only black female judge on the Criminal Court bench were not all of her making. The people of Orleans Parish elected her as judge. If they believe she is incapable of serving as judge, they can vote her out of office Oct. 5. "

"I remember from growing up in New Orleans that when white people were the majority in Orleans Parish, they elected all white judges. Now that black voters have the political strength to do the same thing, conservatives like Sen. John Hainkel offer "merit selection" for judges. What they really want is to retain the power to hand-pick judges. This would undermine the power of black voters in Orleans Parish and the choices we make at the polls. "

Since 1970, the Louisiana Supreme Court has removed only four elected judges. Bottom line, as her attorney Jim Boren said,

"Hunter is not asking for a full exoneration ... Punish her for the mistakes she made, but don't give her the death penalty."

Another lawyer, Darleen Jacobs, practicing 32 years in New Orleans said, give her some supervision, but don't kick her off the bench. "She cares about the community, which is more than I can say for some other elected officials. She's got my vote."

"We were not lazy. We were not indifferent to people's rights," Hunter said. "We do apologize for anything we have been charged with. By no means was any of it intentional. We apologize."

She has our vote too. The punishment should fit the crime. There was no fraud, no intentional misconduct, and the Judge clearly suffered from a lack of guidance. She should have another chance.

Howard, the ball is back in your court now.

Update: Howard has responded in an update to his earlier post, and Ernie the Attorney takes issue with our position. We'll grant Ernie some leeway as he hails from Lousiana, but we stand by our position: For negligence accompanied by an apology and a plan to improve, as opposed to illegal or fraudulent misconduct, it should be the voters who decide whether Judge Hunter stays or goes. She had planned to run for re-election on Oct. 5, and now she can't. Her district has been effectively disenfrancished by the Court.

(but, Ernie was correct that we incorrectly identified the court Judge Jones sits on, and we've corrected it.)

Howard Bashman and Instapundit both have thoughtful pieces on jury nullification as a result of the Ninth Circuit's recent decision on the issue of whether a grand jury must be told that even if they find probable cause that a person has committed a crime, they do not have to indict the person. (Note: The majority opinion did not have a good ending, from our point of view-- we liked the dissent.)

Like Instapundit, we also give a "thumbs up" to Clay Conrad's book, titled Jury Nullification: The Evolution of a Doctrine.

Update: Since Howard and Professor Reynolds don't quite agree on the subject, we thought we'd weigh in.

Howard says, "Jury nullification is something our system endures because there's no other alternative, but it's not something to be encouraged. "

The Professor says,

"... As unfolding scandals in every big city illustrate, murder of innocents, planting of evidence, and perjury by police officers - all winked at by prosecutors who depend on the cooperation of police - is rampant. *696[ FN41] Such abuses can no longer be described as the occasional errant behavior of a few bad apples; they are systemic and deeply embedded. At the same time, many crimes go unpunished, even untried, in those same cities - and there is a suspicious correlation between the wealth and fame of defendants and the likelihood that they will escape prosecution."

"Given that the current criminal justice system is failing both at convicting the guilty and at protecting the innocent, perhaps it is time for a significant change. Reempowering the jury, through both appropriately couched nullification instructions and other structural mechanisms, is likely to improve the situation considerably. "

We side with the Professor on this one.

Update #2: Professor Eugene Volkh has now weighed in on the topic. He has concerns about how jury nullifcation would work in practice.

In a first of a kind opinion, a Ohio Judge has rejected the death penalty due to its cost.

"While the court has authority to approve expenses, it would be disingenuous to suggest that a trial judge can consider such requests without an awareness of the financial impact on this county. The court finds that the potential impact of financial considerations could compromise the defendant's due process rights in a capital murder trial."

The prosecutors' response: They asked for reconsideration and filed an appeal.

Judge Gladys Kessler, the federal judge who issued the order directing the Government to release the names of the detainees, has granted a Government request for a stay pending its appeal of her ruling to the D.C. Circuit Court of Appeals. The AP says the appeals court ruling could be months away.

The Sixth Circuit Court of Appeals ruled today that the Supreme Court's decision in Atkins v. Virginia (June 20, 2002) banning the execution of the mentally retarded is retroactive.

The case is Hill v. Anderson, No. 99-4317, --- F.3d ----, 2002 WL 1836589. Here is the link for a free copy from the Sixth Circuit website.

Thanks to Chris Adams, NACDL Death Penalty Resource Counsel at the Southern Center for Human Rights for the alert.

A federal judge ruled Thursday that Attorney Lynn Stuart, charged with conspiring to provide material support for a terrorist organization, is not entitled to assurances that conversations with her lawyers are not being monitored by the federal government.

The judge rejected attorney Michael Tigar's argument that even the possibility of monitoring implicates her Sixth Amendment right to effective assistance of counsel.

The Judge also accepted the government's argument that "... if any privileged communications were intercepted, screening devices would be used to ensure that the interceptions were not used against the defendants and, thus that their Sixth Amendment rights would not be violated."

And the check is in the mail.

The government's intrusion into the attorney-client privilege is both unacceptable and intolerable, see Sen. Leahy and ABA Protest Ashcroft's Monitoring Order.

The Justice Department's rule permitting monitoring of attorney-client jailhouse conversations went into effect in November upon the approval of Attorney General Ashcroft, supposedly on an emergency basis.

Is anybody listening?

For the first time ever in California, the state supreme court has appointed a guardian ad litem to make crucial decisions for a death row inmate declared incompetent.

Hopefully this will pave the way for arguments that an inmate who is too incompetent to assist his counsel is also too incompetent to be executed -- especially now that the U.S. Supreme Court has banned the execution of the retarded.

If you are a prior felon with a current gun charge, and want to raise the argument that the Justice Department's recent policy switch on the Second Amendment presents a new ground upon which to contest your charges, you better be able to afford it. At least in Northern California.

According to No Free Ride For Gun Argument, Chief Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California has ruled that there will be no compensation for lawyers appointed under the Criminal Justice Act who raise that particular challenge.

The Criminal Justice Act authorizes the appointment and payment for an indigent defendant's attorney (on quite a reduced scale) when the Federal Defender's Office cannot represent the defendant--usually because of a conflict of interest.

Judge Patel does not think the Second Amendment argument has merit. She may be right. But should she be deciding that poor defendants cannot even raise it?

If the argument is not raised in the trial court, the defendant will be precluded from arguing it on appeal. And maybe the 9th Circuit Court of Appeals judges would see it differently.

Her words: "The court will not reimburse attorneys out of CJA [Criminal Justice Act] funds for such useless time."

In case you haven't been following this topic, the beef is over the Justice Department's policy switch from holding that the Second Amendment is an collective right to it being a personal right.

Many conservative law enforcement officials predicted that the Supreme Court ruling in Atkins v. Virginia declaring the execution of the mentally retarded unconstituional would unleash a flood of appeals from death row inmates.

At least in Texas, it hasn't happened. Only one inmate has filed for relief so far under the new decision.

"Texas is one of 20 states that, until the Supreme Court decision, allowed execution of the mentally retarded. The Death Penalty Information Center claims Texas has executed at least six mentally retarded inmates since 1982, a number disputed by death penalty proponents."

What does it take to prove mental retardation? According to the American Association of Mental Retardation, there are three factors: below average intellectual functioning, usually an IQ of 70 or below; poor adaptive skills, such as inability to hold a job or communicate with others; and the onset of symptoms before age 18.

The first man sentenced to death under New York State's death penalty law has won a reversal. The 1995 law under which he was convicted was declared unconstitutional.

"The Court of Appeals ruled 6-1 that the law at the time of Darrel Harris' trial violated his constitutional right to a trial by jury by offering him an incentive avoiding death if he pleaded guilty and accepted the sentence of life without."

Bruce Fein's take on the Pledge of Allegiance uproar in the Washington Times.