Scottish Nous

Jury Nullification, Grounds for Appeal, and Beyond a Reasonable Doubt

In an ancient post, I promised to provide more information on how to best bring about jury nullification.  I will eventually discharge the obligation I incurred by making that promise.  But suppose that, for whatever reason, you don't want to aim for jury nullification but do want to give the defendant a chance to appeal.  How might you go about doing that?  Here's one strategy: express confusion over the vague notion "beyond a reasonable doubt" with the goal of getting the jury to ask the judge to clarify that notion.

Here's why this might work.  First, this should not be hard to do.  Second, the judge will not be capable of clarifying that notion.  If she attempts to clarify it, chances are she'll do such a piss poor job of it that the defense will have grounds for appeal on that basis alone.  There's a reason for this.  Neither courts nor judges nor jurors have any idea what this term means.  (And the reasons for this darken counsel, but we won't explore those now.)

Here are some sample attempts (all taken from Laudan, _Truth, Error, and Criminal Law_, 2006, pp. 36-44):

(1) Proof beyond reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. -Fifth Circuit Criminal Jury Instr. 1.06 (1990)

(2) A reasonable doubt is a doubt based on reason and common sense – the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. -Edward J. Devitt et al., Federal Jury Practice and Instructions, 12.10, at 354, 4th ed., 1987

(3) Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible doubt or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. -114 S. Ct, at 1244

(4) By reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means some actual doubt having some reason for its basis. -Burnett v. State, 86 Neb. 11, 1910, regarding jury instructions given in Burnett v. Nebraska

Laudan mistakenly seems to think that (4) is a pretty good attempt, but this is because he confuses "having a reason for" with "being able to offer one's reasons".  Or at least, he makes this confusion if he thinks (as his discussion suggests) that he wouldn't count one as offering a reason for the proposition that someone is lying if one simply said "it seems to me that he's lying, even though I can't tell why it seems to me that he's lying".

In any case, each of (1) - (4) is wholly bogus, and if a judge tried out any of them she'd be producing decent grounds for an appeal.  Moreover, if she remained silent she would in some (but not all) jurisdictions also be producing grounds for appeal.

Beyond A Reasonable Doubt

Michiganders aren't nearly as dumb as Floridians when it comes to satisfying their jury duties.  A 1990 study showed that in Michigan, a full 50% of jurors would refuse to convict (using the "beyond a reasonable doubt" criminal criterion) if either (i) they thought there was "any possibility, no matter how slight, that the defendant [was] innocent", or (ii) they were not certain that the defendant was guilty.  One might worry that this standard is too high, but at least these folks up north aren't overeager to convict.  Contrast their perspective with that of the freakishly carceral Floridians.  A full 25% of them believed that if the evidence was 50-50 (that is, dead even) they should convict.  Worse, only "half realized that the defendant was not obliged to offer proof of his innocence."  (Studies cited in Laudan, _Truth, Error, and Criminal Law_, 2006, pp. 49-50)  This offers part of the explanation for the fact that, in Florida, over 30% of black men cannot vote. Perverts.

Worst Possible Criticism of Writing Style

Simon Conway Morris's latest article prompted this response from P. Z. Myers:

He seems to regard the English language as an axe murderer would a corpse: as an awkward object that must be hacked into fragments, and the ragged chunks tossed into a rusty oil drum he calls an article. Continuity and flow are something that can be added after the fact, by pouring in a bag of quicklime. Unfortunately, one difference between the two is that Conway Morris will subsequently proudly display his handiwork in a newspaper, while the axe murderer at least has the decency to cart the grisly carnage off to the local landfill for anonymous and clandestine disposal.

And that's not really an exaggeration either.

Arboreal Component in its Locomotor Repertoire

I've run across this (and similar) phrases a few times in the past few minutes.  This particular turn of phrase comes from Alemseged, et. al. "A juvenile early hominin skeleton from Dikika, Ethipa." Nature 443:296-301.  It peppers the paper, but here's the abstract:

The foot and other evidence from the lower limb provide clear evidence for bipedal locomotion, but the gorilla-like scapula and long and curved manual phalanges raise new questions about the importance of arboreal behaviour in the A. afarensis locomotor repertoire.

One has to wonder if Alemseged, et. al. think that they somehow count as doing better science if they can use more words to say something that can be said quite simply in ordinary English.  I suspect that too many evolutionary anthropologists write like this all the time.  Why?  Because they want to make it impossible for the average layman to read anything they have to say?  Because they think redundant bombastic, declamatory, fustian sesquepedelian grandiloquence is a virtue?  Stop it. Please!  And this is actually one of the more comprehensible passages.  Here's what that linguistic abomination means in plain English:

The foot and lower-limb provide evidence that A. afarensis could walk upright, but the curved finger bones raise important questions about whether A. afarensis spent much time climbing trees.

This is what they should have said.  Not that "evidence provides evidence".  Not that that there is "a tree-climbing locomotive component in the hominid's locomotive repertoire".   Where else would that locomotive component be?  In the masticative repertoire?  Is it possible that the literature over in paleoanthropology is so perverse that they do have to distinguish arboreal components of masticative repertoires from the same components of locomotive repertories because they wouldn't be writing a publishable scientific paper if they said that the damned monkey ate tree leaves?

Vegetarian Chili

I suppose I'll post something slightly more constructive having given PETA a little blogspace.  My fridge is currently stocked with a massive pot of the best vegeterian chili in the world.  Due to a combination of amazing flavor and secret ingredient-based perceptual illusion, a friend remarked last night, while consuming the delectable dish, that I must have been lying when I said I was a vegetarian. (I actually probably didn't say that.  I'm only around 75% vegetarian, honestly.  But I'm trying.)  At any rate, here's the recipe:

1 large bottle V-8
1 c. raw bulgur wheat

olive oil
4 cloves garlic
2 onions
4 celery stalks
2 bell peppers
3 carrots
4 tomatoes

6 tb. chili powder
2 tsp. ground cumin
1 tsp. basil
1 tsp. black pepper
1 tsp. cayenne pepper
1/2 tsp. oregano

4 lbs. canned kidney beans

Boil 1 c. V-8.  Add 1 c. bulgur wheat, cover and remove from heat.  Forget.

Sautee vegetables in olive oil.  Garlic first for two minutes.  Then onions.  Given them two minutes before adding celery, and so on...  Add lemon juice and spices.  Continue to sautee or cook covered for awhile, tossing frequently.  It's hard to mess this up, so feel free to reduce the onions to invisibility.

Dump vegetables, kidney beans, and bulgur wheat into pot.  (If you use cheap kidney beans that come in some kind of disgusting clear syrup, you should drain them.)  Use V-8 to thin to desired consistency.  Cook on low heat for as long as you like, but at least 1 hour.  Add water or more V-8 if mixture thickens too much.

The preparation time on this depends on how fast you can cut and sautee the vegetables.  A food processor would speed things up dramatically, but it takes me around 1 hour to wash/chop those veggies.  This makes a bare minimum of five quarts, so I now have food for the rest of the week. [Hat tip goes to Mom for the recipe!]

Pumpkin From Behind Between Legs

Whatever you may think of PETA, their advertising campaign is pure epic win.  NBC rejected their 2009 Superbowl "submission", citing the following reasons:

:12 - :13 licking pumpkin
:13 - :14 touching her breast with her hand while eating broccoli
:19 pumpkin from behind between legs
:21 rubbing pelvic region with pumpkin
:22 screwing herself with broccoli (fuzzy)
:23 asparagus on her lap appearing as if ready to be inserted into vagina
:26 licking eggplant
:26 rubbing asparagus on breast -PDF

You know you now want to see the ad.  Go here. (Possibly unsafe for work.)