It appears, from his report on the trial, that he was basically found guilty of assault for failing to immediately obey an order by a border guard to drop to the floor ... after being punched in the face. (He paused to ask "why".)
The problem here isn't the trial, or the prosecutor, or the jury: it's a law that's drawn so broadly that failing to immediately obey an order from a US border patrol guard is classified as "assault".
(If this is remotely typical of the breadth of the law, then most of us are guilty of serious criminal behaviour and should turn ourselves in. Or something.)
The conviction rate for federal crimes in the US is around 95%, a level typically associated with countries like Japan or Russia that are routinely criticized for their kangaroo courts.
The "conviction rate" at the federal level is basically a BS statistic because it includes plea bargains and federal prosecutors have a much greater degree of choice when it comes to pursuing prosecution compared to state and local prosecutors. Most of the convictions are drug an immigration cases (29% and 21% respectively in a recent example year) and if you were to look at the actual conviction rate of cases where the conviction comes from an actual court verdict the rate is much lower. An odd little factoid here is that for cases that go before a jury the conviction rate is in the low 80% range while bench trials before a judge have a conviction rate in the mid to high 50s.
Which is exactly why the crimes are so loosely defined. The prosecutor loads up a defendant with every conceivable charge, in the expectation that they'll plead guilty to avoid an absurdly long sentence. Only the bravest, most foolish, or truly innocent will risk a jury trial. Plea bargaining is illegal in some countries for this reason.
I like this sentence because it suggests a guilt-by-association argument. However, you would have to be living under a rock to not notice that individual rights in the USA are gone, and they aren't coming back.
Well, if there is something to be learned from this experience, it's that unless you are prepared to be a felon, when at the border, always immediately comply to the best of your ability, and never, ever, question what you are being told to do.
I'm not saying it makes sense, I'm just saying it's my takeaway.
This is an incredibly important point, and bears adding more information. See the Fully Informed Jury Association here: http://fija.org/
I tell myself that were I in this case, I'd insist that my lawyer make this point, and move for a mistrial were my lawyer not willing to defend me in this way. In real life, I don't know if I'd have the guts to do that.
It's incredible that judges as a matter of course lie to juries, telling them that they must decide based on the law, and ignore their conscience. On the contrary, the reason that juries exist is precisely because of their conscience; otherwise we'd just have a computer keep score in the trial. It's a horrible failing of our legal (I hesitate to say "justice") system that this is not only tolerated but perpetuated.
Here's a question: in the US, if a juror mentions jury nullification during deliberation, can they be penalized or can their actions lead to a mistrial?
I seem to remember that once deliberation starts, whatever a jury talks about is officially under wraps, but I've seen way too much Law & Order to trust anything I remember about our legal system.
"In 1997, in U.S. v. Thomas, 116 F.3d 606, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law"
"In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law."
As with any threat to the Establishment, you have to be discreet. Of course the Establishment is going to get upset when you take an end-run around their procedures. So don't tell anyone you are doing it; convince the other jurors with facts from the trial, and if they can't be convinced, you can always hang.
(Remember, it cuts both ways. Nullification can prevent unfair laws from being applied. But nullification can also let the white supremecist go free for lynching a black man, if another racist is on the jury. This would be a horrifying miscarriage of justice and would put society in danger, so it makes sense that there are safeguards that help prevent this situation.)
One of the key parts of US criminal trials is agreeing on the "instructions to the jury." Basically, this is a compilation of pieces of advice on relevant law and procedure that the judge reads to the jury before they start deliberating. I seriously doubt that any judge would consent to include information on jury nullification in their instructions, and having an attorney speak directly to the jury about this possibility during the trial would likely result in a mistrial.
I understand your point, CW, but I just don't think that it would fly.
Incidentally, this verdict is a good example of why I despise overly broad laws that criminalize actions that a completely reasonable person would take.
Jury nullification is not a recognized part of the US legal system. Its something that can happen, but its viewed as more of a loophole than anything else.
Incidentally, I was recently dismissed from jury duty by the judge for asking an honest question regarding jury nullification.
EDIT: I should add that I think this is unfortunate.
Since knowledge of jury nullification is far from widespread, and any mention of it during a trial would likely lead to an immediate mistrial, I think he is correct not to begrudge the jury their verdict.
Ignorance only benefits the powerful. The judicial system can and will keep jurors ignorant about this, while a defendants cannot claim "ignorance of the law" as a defense in their case.
It's strange. I remember jury nullification from my Constitution class, which is required to get a high school diploma in the US. Actually, it may have been required to graduate from middle school.
If you like hard sci-fi and haven't read Watts's novel Blindsight, I highly recommend it. It's the only sci-fi story I've read that has dozens of footnotes referencing real papers published in real journals. On the Mohs Scale of Science Fiction Hardness, it's aggregated diamond nanorod.
Agreed, it's a good book -- and maybe we can help him with his legal expenses. As you said, the hard science in it is very good. And I'd add that it's done with a lot of imagination: he covers a lot of novel ground (pun intended).
I'd also recommend his book Starfish, which shows just as much imagination and almost as much hard science. However, by the second book in that trilogy (Maelstrom) there was a lot of political agenda showing through. That's not necessarily bad, but since I happen to disagree with his agenda, and I was reading it purely for pleasure, I was disinclined to finish that book or the next.
Just because the law exists doesn't mean I cede all rational thought. If a law is worded in a way to make a action taken by a reasonable person a felony, then I reserve the option to not contribute to making matters worse by convicting someone of breaching that law. There are so many laws on the books, it is possible to convict people of all kinds of things, even though most aren't felonies. The prosecutor has discretion on whether to charge someone, so I say the jury should too. Civilization isn't going to break down just because jurors decide that a law is being enforced too strictly.
With that said, this whole thing sounds funny, and I wasn't there for the trial.
It's so sad that we, our society, haven't figured out how to put a stop to obvious injustice such as this. To think of all the people who must spend collective lifetimes locked away by abuses of power, and yet we seem powerless to put a stop to it. Fear takes it's toll on society exercised in ways such as lax oversight of law enforcement, demeaning and abusive behavior tolerated among our border guards towards pretty much all people depending on the mood that day, unwillingness to reform a prosecutorial and judicial system that is politically compromised into the cat and mouse game of the reds against blues, a game where the unwitting losers end up in prison or worse.
haven't figured out how to put a stop to obvious injustice such as this
Actually, we have. It's called jury nullification. This jury did not want to nullify; 12 ordinary people agreed to support this law. This is as fair as it gets.
They might not have even realized they could choose not to support the law, with impunity. Jurors are often given demands like "you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them" that lack any constitutional basis, and the judiciary does its utmost to prevent jurors from even hearing that nullification is possible (much less any arguments in favor).
The judiciary behaves as though those people are very rare (otherwise this wouldn't be so drastically censored), and they're probably right about that. Voir dire filters out many of the well educated, and I wouldn't expect many of the other jurors to figure out from scratch "hey, if I refuse to convict, they can't actually do anything to me" or bet their freedom on that. I doubt I would have before I read about it....
Seems like many people do their best to get out of jury duty, and the ones that are willing can expect to be cut for being conscientious. The balance is tilted against the existence of an activist jury in any but the cases of the wealthy and famous. Those might manage to jolt some life into an otherwise orderly farce. Not that these jolts are positive, just unusually vigorous. Democracy is participation, Orwell might as well have retorted, some get to participate more than others.
On further reflection, so why exactly was he punched in the face? The article doesn't say, and google is flooded with biased 'omgwtfbbq' stories. I mean it seems pretty clear that he got shafted, but I'd still like to see the opposing timeline before he was punched.
If you were in a situation where you believed the police were acting improperly, wouldn't it be both more politically effective and safer to make an official complaint later than to try arguing with them at the time?
Never talk to police. Never ever ever. Back in high school, I broke up a fight. I came between two people and stopped them from duking it out. A nice, kind, female police officer started talking to me. She asked me how old I was. I replied that I was 18 (Ontario had 13 grades at the time and I was in OAC, the last grade). She then asked me if I'd laid a hand on any of the people. I said, "yes I pulled back my friend and separated them". She then warned me that I could be charged for assault and tried as an adult. At first I thought she was joking, so I kind of chuckled, but she let the thought linger over my head while I tried to figure out what she was getting at. What she really wanted me to do was play along with the report of how things went down, which I'd disagreed with. I quickly weighed the options, determined that no charges would be laid if we just helped this officer out and kept her paper work to the minimum, and went along... Not my proudest moment, but perhaps quite smart.
What's my point? You think you know what you're going to do in a situation like that, but the police hold all the cards. Things can escalate uncontrollably. All you need is a peace officer having a bad day (e.g., maybe the wife yelled at him earlier in the day) for things to get really bad. I've seen people get picked on by police when they literally didn't do anything except ask "Why?" and often in a polite way. It's quite possible that the author really is the victim here. It's certainly more plausible than the border guard's story. When crossing the U.S. border, I'm terrified to even wish them a good morning/afternoon. They're terribly rude, uneducated, and a freaking embarrassment to the U.S..
Maybe it's just me, but I've noticed that since Obama took office, things have gotten a lot better. Every immigration agent I have met over the last year (ORD and BOS) has been quite pleasant, which has not been my experience in the past.
I was even searched by customs once, and the guy was quite nice, even though I pushed back a little bit. (Honestly, I was kind of hoping to be arrested for not revealing my crypto password. But the agent didn't seem to care much; a quick inspection of my backpack and a bit of conversation about ebook readers, and I was on my way.)
Maybe I am lucky, or maybe things are getting better. I hope it's the second one!
The US border guards are nowhere near as bad as the Canadian ones, and the Canadian border laws are worse too: having been barred from entry by one shitheaded guard in the past is grounds to be barred automatically in the future.
And it's funny, please tell Fox News that are border laws are more stringent. Apparently we're the leaky sieve of North America when it comes to letting in terrorists :)
Sure, but try thinking rationally after getting punched in the face. And don't forget that Canadians and Americans have very different expectations of how to interact with law enforcement.
That is what I would do. Sure, arrest me. Then my rights are well-established, and if my rights are compromised, the penalties imposed on the police are severe. (In the US, anyway.)
Sentencing is scheduled for April 26th. Dr. Watts could appeal before that. He might also take another look at Canada's extradition policies (and US prisons) before choosing to abide by the verdict.
The problem here isn't the trial, or the prosecutor, or the jury: it's a law that's drawn so broadly that failing to immediately obey an order from a US border patrol guard is classified as "assault".
(If this is remotely typical of the breadth of the law, then most of us are guilty of serious criminal behaviour and should turn ourselves in. Or something.)