no third solution

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Category Archives: Legalese

Innocent Until…?

May 30th, 2008

Until proven guilty, right?

Unless the State withholds exculpatory evidence and convicts you anyways. And then maybe 26 years of three-hots-and-a-cot later, you might be exonerated.

As long as the justice system incentivizes convictions, in lieu of incentivizing the protection of innocents, there will be people like Walter Swift, who suffer unjustly (permalink PDF):

After an 11-year campaign, the Innocence Project — the legal group headed by Barry Scheck that investigates wrongful convictions — convinced Wayne County prosecutors to dismiss the charges against Swift based on a faulty identification by the victim and biological tests that indicated Swift probably was not her attacker. The evidence never was presented at trial. (emphasis added)

Swift spent the last 26 years of his life in prison for a crime it seems he didn’t commit. Twenty-six years is about half of one’s working, productive life. Twenty-six years from his prime and well in to middle-age. Twenty-six years without a family. It is unlikely that Swift will be compensated for these injustices, and even if he’s lucky enough to receive some sort of damages, he’ll never receive a fraction of what’s been taken from him.

Walter Swift can never get those 26 years back.

Jury Nullification and Blocked Defenses

April 22nd, 2008

Over at A Stitch in Haste, Kip inquires about a bigoted application of jury nullification: “Should a nullifier be entitled to disregard [a prohibition on certain defenses] and vote to acquit?”

So I put it again to the nullifiers: Assume a juror, who acted in good faith and made no attempt to lie her way onto the jury, simply believes that “panic” is indeed an entirely proper reaction when “harassed” by a “pervert” and that, A.B. 1160 and jury instructions notwithstanding, it’s just not right for someone to go to jail for killing an uppity queer who “panicked” him.

If the power of a juror is absolute and extends not just to reviewing the facts but also the law, then is it not also perfectly appropriate, even noble, for one homophobe to acquit another homophobe?

Or do your “higher principles” regarding nullification only apply to smoking pot?

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Oh, how I love a good pun!

What the advocates of nullification (myself, included) suggest is that it be used to prevent injustices from occurring at the hands of the State. There is probably not a perfect solution; any system implemented by imperfect men is bound to have its own unique imperfections. As the programmers might tell you, “Garbage in, garbage out,” the system can not be perfected by adhering to the imperfect rules which govern it.

Jury nullification as advanced by the libertarian, is supposed to prevent false positives, viz. convicting people for non-crimes. I have often heard simplified, a principle of any proper justice system: “It is better to let 10 guilty men walk free, than to convict a single innocent man.”

To the extent that a justice system succeeds at occasionally acquitting the guilty in favor of never convicting the innocent, there will inevitably be “not guilty” verdicts handed down to someone who is probably truly guilty of a crime against person or property. This may be due to the standards of evidence, legal or procedural technicalities, etc. Sometimes, a guilty man will go free because of a juror’s bigotry. The latter is the special case of jury nullification, where a juror takes it upon himself to review the law (not merely the facts) and to render judgment in accordance with his own beliefs.

What we need to ask ourselves is whether the end sought by nullification is justified in and of itself?

In the case to which Kip refers, above, clearly the end sought is not justified. Decrying this act of “nullification” is not inconsistent with a general libertarian tendency to favor jury nullification. I would argue that a juror swayed by bigotry is in fact morally wrong when he votes in such a manner as to acquit a guilty party, an opinion determined by the morality of the end he seeks and not by the means through which he achieves it.

The mere act of jury nullification is neither right, nor wrong, in and of itself. It is a means towards an end which must be evaluated independently. I advocate jury nullification as a means to an end—its merits should be judged accordingly, and its opponents should resist the temptation to judge it as an end in itself.

Is Resale a Copyright Infringement?

April 9th, 2008

In reference to this techdirt article, Kip asks:

Is it a violation of copyright to sell a used book? Is it extortion to threaten to sue over it? (“I think [a] number in the high seven figures will be fair enough for me to suddenly catch amnesia.”)

Of course it’s not a violation of copyright to sell a used book! I have my own thoughts on the matter, but the techdirt article gives the answer, pretty clearly, in the context of modern American jurisprudence. But let’s think for a moment about what would happen if the courts did consider this a violation of intellectual property “rights,” so-called. (For the time being, I’m discussing only excludable property1).

Does it not follow, that even distribution of these products in a secondary market for free would be a similar violation? That is, if it’s a crime for me to sell a used book, presumably because it deprives the author of income2, isn’t it the very same crime for me to give the book to a friend, for free? If not, why not?

What would happen to libraries?

But don’t just stop with “copyrights,” carry the thought-process all the way through to patents and other spurious pseudo-property:

Second-hand stores (think maternity wear, baby clothes, etc.) and thrift stores (lower income people) and consignment/pawn brokers (used sporting goods stores, etc.) would be promptly put out of business. You couldn’t sell your old records, nor could you buy someone els’es old record collection. Ditto for other memorabilia, including America’s beloved baseball card! General Motors would probably be upset if you were selling your 1997 Malibu. Widening the perspective a bit, we find that there would be (essentially) no way to liquidate debtors’ property in the event of default. If you think it’s hard to get business loan now, imagine a legal environment where the creditor’s claim to your pizza ovens, walk-in refrigerators, retarders, and mixing bowls doesn’t allow him to resell these items for cash.

Prohibiting resale, be it books, cars, or collateral, would serve only to impoverish people who need money and are willing to part with slightly used goods, and to impoverish their would-be trading partners. If enforced, there is no up-side to this sort of prohibition. But it probably couldn’t be enforced, in which case it would contribute to the total collapse of the red market.

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1. The case against IP with regards to non-rival consumption and zero marginal costs (e.g., digital property) is outside the scope of the current discussion. I have theorized on alternative solutions to copyright laws in the past, “[I]t is difficult to justify protecting entrepreneurs from entrepreneurial risk”

2. “Deprivation of Profits” must be the violation, since in most cases it cannot be alleged that the reseller is profiting from the resale, since the price commanded on the secondary market is in all but the rarest collectors’ item instances, lower than the initial acquisition price. Therefore a profit is not turned. From which we must conclude that the crime is not “profiting unduly” but rather “depriving of profits.” Of course, this depends on the utterlly untenable belief that anyone willing to pay for a second-hand product would also be willing to pay full price for the first-hand product…)

no third solution

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