A Stitch in Haste

To review: As I understand it, the libertarian rationalization for jury nullification is that an unjust law, as an instrument of tyranny, is illegitimate ab initio and a jury is therefore not violating its solemn duty to limit itself to findings of fact when it chooses to disregard such a law by acquitting a defendant who has in fact broken such a law. The defendant in such cases is portrayed as a sympathetic victim of an oppressive system.

Which invites the corollary question of whether mere sympathy for the defendant is enough — why should only those defendants who are sympathetic because of the nature of law benefit from free-rein jury nullification and not those defendants who are sympathetic for some other reason?

One real-world example:

FBI agents executed a search warrant Sunday at the apartment of University of Tennessee student David Kernell in connection with the hack of Alaska Governor Sarah Palin’s private Yahoo account.
…
Justice Department spokeswoman Laura Sweeney confirmed to wired.com that there was “investigatory activity” over the weekend in Knoxville regarding the government’s inquiry into the hack of Palin’s e-mail account. She said the department would only have further comment if and when it filed charges against any individual in relation to the case.
…
Palin’s Yahoo account, gov.palin@yahoo.com, was infiltrated late Tuesday night by someone who used publicly available information about Palin (her birthdate, zip code and information about where she met her husband) to bypass Yahoo security measures and reset her password to “popcorn.”

Whoever the hacker was — Kernell or someone else — unarguably violated at least one and probably two federal laws, and by one account showed no remorse:

The hacker said that he read all of the e-mails in the Palin account and found “nothing incriminating, nothing that would derail her campaign as I had hoped. All I saw was personal stuff, some clerical stuff from when she was governor. And pictures of her family.”

Once the hacker had read the e-mails in Palin’s account, he said he suddenly realized what he’d done and how vulnerable he was to being caught, since he’d used only a single proxy service to hide his IP address.

One of the (innumerable) reasons that Palin has come under scrutiny is her alleged use of personal email accounts to conduct conduct government business — a clear ethical and security violation. At least some of the hackers who targeted her, possibly including the one who actually succeeded — did so merely to expose her misconduct regarding the email account. In essence these were “hackers as whistleblowers.”

Now suppose, as is likely, that criminal charges are indeed filed against Kernell. Assume also that he attempts to put forward as an affirmative defense his lack of criminal intent: that he was not trying to harm Palin per se but merely to expose the danger of her conduct in her capacity as a government official.

As I understand the laws at issue (the Stored Communications Act and the Computer Fraud and Abuse Act), malicious intent is not required for guilt — just intent to commit the act itself. (This is not unusual: in criminal law “intent” often, indeed usually, means “intent to commit the act” and not “intent to harm.”) So, in our hypothetical (which again is quite reasonable and somewhat likely to come about in reality) we have someone who clearly broke one or more laws that are clearly not oppressive (protecting electronic privacy is hardly a tyrannical act), but who did so in a way that was not malicious and that may bring about a social good (i.e., exposing poor electronic security by a high-profile public person).

Now given that this framework — a just law with a sympathetic defendant — lacks a key prerequisite for traditional nullification (i.e., an unjust law), does that mean that nullification is inappropriate in such a circumstance?

If so, then nullification is hypocritical. Why should a sympathetic defendant be allowed to argue nullification in one fact pattern (i.e., an unjust law) but not another (i.e., a just law)?

If not, then nullification is rudderless. The self-congratulatory insistence that libertarian nullifiers adhere to “higher” notions of justice is exposed as a consequentialist fraud. All laws — just or unjust — are reduced to mere suggestions, with any lay juror entitled to nullify any law, consistently or inconsistently, based solely on whim. We replace the maxim, “a government of laws, not men” with “a government of lotteries, not laws.”

The only rational and moral resolution to the paradox is to reject from the outset both the general concept of nullification and the specific hubris-laden belief that nullification is proper when, and only when, libertarians do it.

Previously:
–On the Nullification Memo
–In Offense of Jury Nullification
–Stitch in Haste Podcast #002
–Suddenly Jury Nullification Doesn’t Sound So Great
–Where is Your Nullification God Now?
–Did IQs Just Drop Sharply While I Was Away? (Part One)
–More on “Trial Nullification” versus “Law Nullification”
–Should Jury Nullification Apply to Blocked Defenses Too?
–A Nullification Denouement

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