|Non-lawyer writers should stick to non-lawyer issues
their grip on state capitols" (April 1999 California Bar Journal) demonstrates the
problems inherent in non-lawyers writing about legal matters. Nothing in the article
proves or even suggests the conclusion.
Perhaps other business and professional men and women, and even soccer moms, are
getting more interested in politics - a good thing. Perhaps, as in California, long-term
office holders, often lawyers, are being retired due to term limits. I know as a
percipient witness that making money as a lawyer, the profession others love to hate, is
harder, not easier, than before.
Allow me to correct the record. The phrase is Res Ipsa Loquitur, or res ipsa in the
vernacular. This is not a legislative concept, but a rule developed by judges and lawyers
to protect the injured, innocent victims of the civil wrongdoing of others. In general,
res ipse when applicable provides proof of negligence where the accident could not
generally have happened with the fault of another. In the leading case, a passerby was
injured by a barrel falling from the window of a barn.
Richard J. Stall
A seductive call to validate jury nullification
The Point/Counterpoint discussions on the issue of jury nullification in the March Bar
Journal sadly reflect how the seductive call to validate this dangerous practice in the
name of personal conscience - notwithstanding the facts and law of a case - will deal the
final coup de grace to the already battered and bloodied body of truth lying in anguish as
a result of the games we lawyers are allowed to play in court, and will completely destroy
the employment of trials as truth-seeking devices.
One point - among others weakly predicated - raised in law professor Alan W. Scheflin's
argument serves as ludicrous support for his position sanctifying the doctrine of jury
nullification as acceptable in American jurisprudence. This is the suggestion that the
destructive nullification practice will not be used in cases of "murderers, rapists,
thieves and scoundrels" since these loathesome creatures "are not likely to be
freed by big-hearted juries."
It's as simple as this: jury nullification in; truth and justice out. What we used to
facetiously suggest, "don't bother me with the facts, my mind is made up," has
now become a terrifying truism.
Michael Patrick Murray
. . . and an early precedent
The debate overlooks some of the teachings by a leading jurist (Lord Mansfield) who
established a very early precedent on jury nullification.
In England, a criminal sedition proceeding was brought against a publisher named Linus.
The crime charged was printing and publishing seditious literature about the king. The
issue was highly politically charged.
In the jury instructions, Lord Mansfield instructed the jury that he, as a matter of
law, found the publication to be seditious.
Therefore, he instructed, the jury must convict that it found the defendant had printed
and published the same. The verdict was "guilty of printing and publishing
Lord Mansfield then wrote an opinion that concluded that the word "only"
meant to acquit the defendant of sedition. He found Linus to be not guilty,
notwithstanding that if his instructions were to be followed, Linus was guilty.
It is very difficult and perhaps impossible to imagine a current jury doing the same
thing today. The jury system is one in which jurors are supposed to be the final bulwark
against unfair and oppressive laws, whether they are enacted by the legislature, the
police or others.
Those who argue against jury nullification ought to seriously consider the decision of
Lord Mansfield in the Linus case.
James R. Christiansen
Dismayed by trivial view
I read with great dismay the essay by Robert Trieman in April in which he trivializes
jury service. Is he not aware that the right of trial by jury is guaranteed under the
United States Constitution? Doesn't he realize that the jury trial is the last and only
significant way that citizens can participate in self-governance? Mr. Trieman implies that
somehow plaintiffs' law-yers are the only persons who benefit from a citizens' guaranteed
right to a trial by a jury of their peers.
Mr. Trieman's elitist attitude intimating that ordinary citizens are simply not
intelligent enough to discern truth and justice in a courtroom is simply indicative of his
own inability or unwillingness to clarify the issues of his so-called "complex"
litigation so that persons of ordinary intelligence can understand them.
Deborah A. Wolfe
A key foundation of our democratic process
The right to trial by jury is one of the key foundations of our democratic process, and
I cringe when I encounter opinions advocating that the right be curtailed in any respect.
The solution to juror dissatisfaction is not to do away with the right to jury trial but
to address the issues which are causing the grumbling. The solution to obtaining broader
representation on juries is for courts to become more stringent in granting relief from
jury service, especially to those who profess to have more important duties to which they
J. Gary Hastings
Court of Appeal, 2nd Appellate District