DaveScot Nullifies Sound Thinking

Good ol' DaveScot is back (with a brand new dance) and this time he's blathering about jury nullification. The problem is that he doesn't seem to have a clue what jury nullfication is. What makes it even funnier is that he actually quotes the definition of jury nullification and then still doesn't understand what it means. Here's the definition he quoted, from Wikipedia's entry on the subject:

Jury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds.

Which is exactly right. This is the jury nullifying the law by rendering a decision on some basis other than the law. A common example of jury nullification might be, for example, if a jury refused to convict an elderly man who puts a pillow over the head of his terminally ill wife because she was in terrible pain and begged him to help her end her suffering. A jury might feel that while he technically did commit murder, his actions were understandable and he's not a terrible person, so they might acquit him even though they know that he actually did violate the text of the law. This has been known to happen from time to time.

Another example, recently discussed by some of the folks at Reason.com and Radley Balko, would be if a juror thought that drug laws were unconstitutional and got on a jury in a drug case, they might refuse to vote for the defendant's guilt even if they knew he had broken the law because they believed the law to be unjust. Those are examples of jury nullification, and you can imagine why the concept is so controversial. Conservatives, by the way, are generally opposed to jury nullification, while libertarians tend to be all for it. DaveScot, unfortunately, seems to think that jury nullification means nullifying the right to a trial by jury rather than the jury nullifying the law in a trial:

The people have been stripped of this right to be judged by a jury in federal constitutional rights cases by the prevalent practice of seeking only injuctive relief (technically less than $20 in damages) and using exhorbitant attorney fees as a proxy for punitive damages.

No, Dave, jury nullification has nothing to do with the "right to be judged by a jury". Jury nullification means the jury nullifying the law, not an attempt to nullify the jury. It makes one wonder if English is Dave's native language - he even quoted the definition and still got it wrong. The rest of his post is the standard conservative hypocrisy about reimbursing legal fees:

Punitive damages are explicitely intended to have a chilling effect on the cause of action. Legal fees are not supposed to be punitive damages but simply reimbursing of legitimate expenses to the prevailing party. But when legal fees hit the seven figure ballpark as it did in Kitzmiller v. Dover School Board they cease being a legitimate expense and become a proxy for punitive damages.

But why, Dave, do you only think that's true of cases whose outcome you disagree with? Isn't the same thing true of a free exercise case? Let's take the example I mentioned the other day where a city in Colorado refused to allow a Christian group to use public facilities that they make available to non-religious groups? The religious group is surely going to win the case, but if the city keeps appealing the decision and it goes all the way to the Supreme Court, it will cost them well into the 7 figures as well. It costs that much to take pretty much any case to the Supreme Court from start to finish.

If the plaintiffs win in the case, which they should, they will be able to make a motion for reasonable legal fees to be paid by the city. The judge will almost certainly grant that motion, but the actual award will typically be about 1/3 of the total legal bill. Or they could, as in the Dover case, reach a financial settlement with the government on the matter of legal fee reimbursement, which the judge will then sign off on. Will Dave be complaining then about such legal fees being de facto punitive damages, or about such cases having a "chilling effect" due to "financial intimidation"? Of course he won't.

But the only difference will be the outcome. If he agrees with the outcome, then it's only reasonable that the plaintiff not have to pay a lifetime's worth of earnings to stop the government from behaving unconstitutionally. So what it really comes down to is that Dave, like all advocates of this stupid bill, thinks that citizens should have to pay to sue the government, even if they win the suit, whenever they disagree with the ruling; but when they agree with the ruling, then it's only fair that the government pay the cost for that citizen to prevent them from acting unconstitutionally.

The constitution preserves the right of a defendant to request a jury trial when damages (actual and punitive) exceed $20. That's because in all but the most trivial of cases the people have wanted to have the right to be judged not by an elite federal justice but by a jury of their peers from their local community.

This logic applies quite well when we're talking about criminal cases against an individual, or even civil cases where a citizen is being sued by another citizen. But in the cases that HR 2679 would impact, it's not an individual being sued, it's the government. The government doesn't have "peers from the local community" to be judged by; they are to be judged by the standards of the constitution itself. What Dave is suggesting is that constitutional law cases should be decided not by judges, who have an expertise in that law, but by people who know virtually nothing about it. In short, he wants cases to be decided by people who are ignorant enough to think that jury nullification means nullifying the right to a jury trial; people like him.

I'm supremely confident that had there been a jury trial in Dover even had the complainant prevailed, the jury would not have allowed a million dollar punishment against the school board. The ACLU would have had to live up to its specious billing as a non-profit group and actually do the work pro-bono.

This is one giant red herring. He may well be right that a jury would have decided differently than a judge, but that is again just special pleading - he would only support that if the jury agreed with him. Change the outcome and his attitude would reverse itself quickly. And again, this would mean a group of people with no understanding of the law at all would be deciding a complex question of constitutional interpretation. And as usual, he doesn't understand the role of the ACLU or what share of such fees they get. The ACLU had one attorney working part time on the Dover case (Vic Walczak). The overwhelming bulk of the legal work was done by a private firm, which would have had to eat the entire cost of the case if they had lost. The total legal bill was over $2.5 million and the school district agreed to pay $1 million of that, which is in line with what is normally awarded in such cases.

The ACLU likely got only a small portion of that, which by law they can only use to pay for legal representation (and remember, in cases where they lose, they have to eat that expense). At best, such reimbursement is a break even proposition. Neither the ACLU, nor the lawfirms that handle such cases, makes any profit on them at all. Even if they win, they will typically lose money. I can guarantee you that what Pepper Hamilton got out of the case didn't come close to covering the costs they put out to handle the case. The opportunity cost of the lost billable hours alone for 3 partners and 2 associates, plus numerous clerical and paralegal people, was almost certainly well over the amount of their reimbursement for legal fees.

No one is getting rich on such cases; hell, no one's even getting comfortable on them. They take these cases because they believe in them and they take a major risk that they won't even get a minimal reimbursement for them. And DaveScot, like other backers of this legislation, fully recognize that in every case where they agree with the outcome. It's only when they disagree with the outcome that they suddenly start throwing around empty rhetoric like "financial intimidation" and "bullying".

Update: Boy, DaveScot gets even dumber in the comments. In this one, in response to Larry, he says

Do you think the verdict in Dover would have been different if it were a jury trial? I surely do. The defendants were barred from a jury trial because only injuctive relief was sought. The injunctive-only relief sought was a strategic ploy by the complainants specifically to avoid a decision from a jury of peers. A federal judge is hardly a peer to board members of a microscopic school district. It's a miscarriage of justice to deny them a jury of peers.

But an attorney had already explained to him something I left out, that he is missing the distinction between a suit of equity and a suit of common law. The 7th amendment only governs the latter, but Dover was an equity case and thus not subject to jury trial. Even if the damages sought had been above $20, the government still has no right to a jury trial just because they think they're more likely to win that way. And of course, as always, we should compare Dave's mindless bashing of Judge Jones now as an "elitist" and "activist" with his prediction before the trial:

Judge John E. Jones on the other hand is a good old boy brought up through the conservative ranks. He was state attorney for D.A.R.E, an Assistant Scout Master with extensively involved with local and national Boy Scouts of America, political buddy of Governor Tom Ridge (who in turn is deep in George W. Bush's circle of power), and finally was appointed by GW hisself. Senator Rick Santorum is a Pennsylvanian in the same circles (author of the "Santorum Language" that encourages schools to teach the controversy) and last but far from least, George W. Bush hisself drove a stake in the ground saying teach the controversy. Unless Judge Jones wants to cut his career off at the knees he isn't going to rule against the wishes of his political allies.

Isn't it amusing how quickly the hypocrisy shows up the moment they don't get their way?

Oh, and you have to see this comment by this bubblehead asking if they can file a RICO suit against the plaintiffs' attorneys in the Dover case. No, I'm not making that up. Even Larry is smart enough to shoot down that brilliant idea.


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Two major problems with Dave's argument. First, as you point out, Jury nullification has nothing to do with whether a hury renders a decision: It is a decision by the finder of fact that the controlling law is inapplicable for some reason. In most cases this will be the jury, but it is hardly uncommon for Judeges to do the same thing and dare the losing attorney to appeal the decision.

Second, even in a jury trial, the awarding of fees (if any) is not a part of damages, and, hence, not up to the jury. It is purely at the discression of the trial judge, and unless hugely unrealistic, is not subject to appeal, either. Each judge has his/her own scale. In the days when I practiced law, it was about $50/hr for NC appointed cases, but only $30/hr on Federal appointed cases (mostly drug charges). As my firm billed private clients $115/hr for my time, this was a substantial hit, especially since, unless it is a huge case like Dover, support staff time is not figured into things.

I can't find the spot where he made this argument (in the thread in question or a recent thread on UD... it may have even been Fafarman on his own blog), but I'm pretty sure that DaveScot also objected to the massive award for attorney's fees by the following argument: Assigning three partners and two associates (or was two/three?) to the case is excessive; and it is Pepper Hamilton's fault that the bill is so large because they brought out so many big legal guns.

Apparently, Dave wants to limit the legal resources that can be used in these cases. I guess it favors his side because it only takes one or two people to make up bullshit.

By FishyFred (not verified) on 29 Jun 2006 #permalink

DS's claim that a jury might have found differently in Dover is also a gas. Had there been a jury, Behe and others might be doing hard time . . . well, that's no more looney that what DS is saying.

By Ed Darrell (not verified) on 29 Jun 2006 #permalink

It's like watching Moe and Larry discuss the law.

Mung must be Curly, eh?

Worse. If there's more than one lawyer involved you could make it a RICO case.