Thursday, 18 March 2010

Jury nullification wins in Waihopai decision

CLICK FOR STORY I must confess that I’m not worried by a jury’s decision to set at liberty the three nutcases who attacked the Waihopai spy base. In fact, I have to say that I’m rather pleased.

I’m rather pleased—not because I agree with Leason, Land and Murnane’s vandalism; or with their arguments to justify their wilful damage (that they mounted the attack “to prevent others' suffering”); or with the “reasoning” used by lawyer John Miller that the jury acquitted the fruitcakes because they “genuinely believed” their actions would save lives.

No, I’m pleased because it’s great to see the concept of jury nullification given legs. 

    “Jury nullification occurs [says Wikipedia] when a jury in a criminal case acquits a defendant despite the weight of evidence against him or her. Widely, it is any rendering of a verdict by a trial jury which acquits a criminal defendant despite that defendant's violation of the letter of the law…”

The American  Fully Informed Jury Association maintains that

    “The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuse of power by government.”

The principle of jury nullification is a just check on government. It’s one way to combat bad law—a pressure-relief valve on tyranny--a long-established method recognising that jurors are entitled to vote on a verdict based not just on the facts in front of them, but according to their own conscience. 150 years ago, following the principle of jury nullification, American juries were delivering not-guilty verdicts for people who freed runaway slaves—freeing people by following their own conscience instead of the law. Today, however, people are being imprisoned by guilty verdicts delivered by unwilling juries unaware that they have the power to set good people free. 

Writing about the imprisonment of Ed Rosenthal in 2003, for example, Reason magazine observed:

    “Many people, especially conservatives, are troubled by the idea of jury nullification, with its apparent invitation to apply vague, unwritten standards. But the Rosenthal case shows [one example of] how this power, which has a venerable history in Anglo-American law, can help combat a far more dangerous kind of lawlessness.”

To whit: the tyranny of bad law.

It’s true that jury nullification cuts both ways, but to see a jury in this age delivering a verdict which, however much I disagree with it, gives voice to their own conscience instead of black-letter law is, to my mind, progress. 

It’s just a shame that what the jurors’ conscience contains is so obviously fatuous.


  1. Excellent; was going to say the same thing, now I don't have to.

  2. Strange bedfellows on this, PC. It seems to be a fairly common reaction to disagree with their actions or the merits of their argument, but nonetheless be pleased with the judicial outcome.


  3. Those fuckers, Leason, Land and Murnane do sympathize with Muslim terrorists and talebans.

  4. You may want to check some fundamental differences between the role of juries here and in the US Pete. While I probably agree with you how it should be, you'll find that the US construction and how it can be (and increasingly is) used, will not apply equally to NZ.

  5. I agree with the jurisprudence. I query whether the charge which they faced was the correct one. If it had been an anti-terrorism charge then the jury's verdict may have been to convict.

    Nevertheless these three are mis-directed weirdos who have a total disregard for private property rights given the base is owned by somebody other than themselves. Who does own it?

    Chris R.

    Chris R.

  6. Chris R , you asked, Who does own it??

    According to LGM, the property is not owned by anyone (his interpretation, that if it belongs to the state it is un-owned). So, in that case the 3 nut-bars didn’t damage someone's property since it is un-owned (i.e., state-owned).

    If you don't believe me, then search this blog on his views on roads ownership. He thinks that the roads are un-owned (simply because it is the states' that owns the roads).

  7. Peter you make a interesting point.
    But the fact remains these luddites damaged property.
    It doesn’t matter if the damage is done to a spy base or to a corner dairy.
    The victim has not being compensated.
    Now as much as I like seeing the state getting done over by the little people.
    Having a warped delusion is no justification for a criminal act.

  8. Slimey

    Indeed, who does own it?

    That would be an interesting topic to discuss, especially since the acquitted could claim exactly the same public "ownership" as everyone else.

    BTW what does that base actually do?


  9. Anonymous, what did you make of Howard Roark's acquittal for having demolished the apartment block (assuming you've read The Fountainhead)?

    Yes, it's fiction, but I'm getting at the principle.


  10. Maybe it's an interesting precedent. Perhaps if I was to pop round to visit and blow each of their heads off with a shotgun, I could successfully mount the same defence: that I was preventing them from carrying out future acts of sabotage against the Western world's intelligence gathering systems, which would likely lead to the loss of allied lives in the war on terror.

  11. I'm not sure I'm very comfortable with the concept of jury nullification - it should not be the job of the jury to effectively make law.
    Jury verdicts can never really be considered reliable when there are no intellectual qualifications for jury service and defence lawyers are allowed to object to individual jurors with no justification required.

  12. Are judges not entitled to call bullshit on a jury and throw out their verdict if it is manifestly improper or unjust (or not properly founded)?

    I don't know, but I believe that to be the case -- if so, it means juries really only get to make a sort of casting vote in a case where the merits in law are genuinely unclear. I don't think that's a great danger to society or the legal system.


  13. Richard McGrath18 Mar 2010, 12:51:00

    I wonder if the same jury would mind if I stole a Volvo car to drive, in order to try and save the life of my passengers if we end up in a car smash.

    And what about restitution? I heard it will be a million dollars plus for the damage done. Being acquited means they are not liable - the taxpayer will be.

    I wonder if their actions to disrupt Waihopai put other libves at risk and whether the jury took that into account.

    Lucky they didn't vandalise a spy station in Singapore - no jury trials there, and they probably would have been convicted, caned and made to pay for the damage.

    I understand your point about jury nullification, PC. But if you accept the Waihopai base as an integral part of the government's legitimate function of national defence, and that property rights matter, a strong case could have been made to convict the Great Unshaven.

    Had I been on the jury I would have voted to convict, and recommended they pay restitution but otherwise receive no extra punishment.

  14. A civil suit could be commenced to recoup the costs of damage done. The weirdos have admitted they did it and the criminal finding would be irrelevant in the civil jurisdiction. If the Crown owns the base then the Crown could sue. If it is US owned then that state could sue.

    I'll wager the Crown will not sue.

    Chris R.

  15. PC, this is an irrelevant example that you've just described in your example.

    The danger of what you advocate for here, is that it makes justice system non-objective, ie, it becomes arbitrary. I thought that Ayn Rand, never liked the concept of anything arbitrary?

    What's your opinion about David Bain's case? Despite the overwhelming evidence? The evidence against the 3 accused in this case, wasn't probabilistic like that in David Bain's trial, it was 100% proved the 3 nutcases did it.

  16. Right to Life are seeking legal advice on whether it is now alright for them to take similar action to save the lives of unborn babies. They will be burning down hospitals if they get the chance. Nullify that.

  17. Peter has brought to the fore a very interesting situation regarding the environment court, where huge fines are imposed without a trial by jury.

    I think the court can even send the person to jail.

    These huge fines are based on the perceived wealth of the 'so called' polluter.

    What is happening in the environment court is "tyrannical abuse of power by government."

  18. Robert Winefield18 Mar 2010, 15:12:00

    Is it just me or did these wankers not nobble a military installation in a time of war. Signals intelligence is extremely important in eavesdropping on Al Queada. Ever hear the term 'level of terrorist chatter' when threat levels are being discussed? What chatter did these fools on the jury and in the prosecution think that they are referring to? Chatter at a Pub quiz night?

    Vandals? No. Saboteurs? Yes. Jury nullification be damned. The bastards should have been shot on sight.

    Maybe I'm wrong, maybe Cpl Willie Apiata won his VC for baking the world's most delicious pavlova.

  19. Well Robert, they should really have been charged with treason, which is committed when one:

    (c) Assists an enemy at war with New Zealand, or any armed forces against which New Zealand forces are engaged in hostilities, whether or not a state of war exists between New Zealand and any other country

  20. Robert,

    This was my thought as well.

    They attacked a military installation with the express purpose of crippling the ability of the troops of NZ and it's Allies.

    That is an act of war,treason, or terrorism, depending on your point of view.

  21. May I invite those readers who are unable to draw a distinctin between the principle of jury nullification--an established part of Anglo-Amrican law--and what it was the jury nullified to undertake a course in reading comprehension.

    The reason I saythat should be obvious.

    May I also note, as well, that neither a district court decision nor a jury's nullification offers any precedent for future verdicts--meaning that all the asinine specualation about what actions the verdict might justify in the future is just so much flatuulence.

  22. What a rude and patronising comment from you PC. it reminds me why I had drifted away from following this blog. The needless insults and condescending tone are quite unnecessary. To respond to your points:

    1. The discussion has diverged into two different branches. It happens.

    2. It may not create precedent as such, but if it is, as you say, "one way to combat bad law" it could, if repeated, lead to an effective change of the law

  23. @SteveW: There you go, I'm rude and patronising. Well, I never said I was PC.


  24. As a matter of personal justice, this lot clearly should have been convicted. But as matter of legal procedure, I’m inclined to agree with PC.

    Why? For the same reason that a likely murderer should get off when evidence of their guilt is inconclusive. Better that 100 crimes go unpunished, than a single innocent man be punished by the state unjustly.

    Same principle applies here. Better off these idiots are spared the punishment they deserve, and the principle of jury nullification (to protect the more worthy) is re-affirmed.

  25. "@SteveW: There you go, I'm rude and patronising. Well, I never said I was PC."

    Well, it's your blog so you're free to do what you want and I'm free not to read it, but if you want to spread your ideas I suggest politely engaging people in discussion, not making snide comments about their poor reading comprehension. I don't think your approach will win Libz too many converts.
    I am disappointed because your blog raises lots of interesting issues and has many interesting and informed commenters.

  26. Richard McGrath18 Mar 2010, 16:42:00


    Jury nullification is a wonderful thing, but should it apply in this situation when these defendants freely admit they damaged the Waihopai base?

  27. Hard to tell if this actually is a case of what you think it is.

    [not a lawyer]

    There was a legal case, based on 'Claim of Right': that they, wrongly, thought it was legal. (I think this has to be due to misunderstood facts - ignorance of law is no excuse).

    For all I know that could be true, and the jury sincrerly followed the directions of the judge.

    Used *well* that sounds like a good defence to have available.

    It doesn't seem to apply very high up the offense chain, either. It's application here is the point of appeal open to the Soliciter-Gen.

    The only way people will get away with it in similar circumstances in future is if confusion about the case persists.

  28. Richard,

    If you've read The Fountainhead.....should Roark have been convicted, even though he freely admitted to blowing up the building, but the jury freed him?

  29. I reckon those IRD buildings cause a fair amount of 'human suffering' ...

    I'm just saying.

  30. The purpose of the jury is exactly as PC wrote. It is to protect the accused from abuse of power by government. The idea of twelve of the accused's peers being selected as a jury to judge is an important one. Unfortunaltely it is not well appreciated.

    One of the duties the jury is supposed to undertake is to judge the law being applied against the accused. If they determine that the law is itself unjust or it is a law being applied unfairly or there is an abuse of power, then they nullify. In effect they try the law and the accused- both.

    The jury of peers was intended to counterbalance the effects of the powerful or well connected expropriating the justice system (or the legislative system) and employing it as a weapon against the individual common man. that's a good idea and an important function.

    Now as to these acquitted folk, the question now is, why did the jury acquit? I have not heard the reasons. Has anyone from the jury commented yet?

    BTW what exactly does that place actually do? What is it for?


  31. Richard McGrath18 Mar 2010, 23:26:00

    Mark - that's a good comparison and I take your point. But I hope the Waihopai 3 end up defending a civil case for the damage they caused.

    Mark H - yes, and I think Dave Henderson would also agree with you.

  32. The biggest fucking problem was that Waihopai didn't have some armed security that could just gun these three down at the time.

    Just think of the money we'd save if they we hosed down with an H&K before they got near the damn dome in the first place.

  33. Better that 100 crimes go unpunished, than a single innocent man be punished by the state unjustly.

    I always knew libertarians were lefties. This proves it.

  34. Robert Winefield19 Mar 2010, 07:23:00


    Yes, I am aware that the prosecution should have charged them with Treason. I'm aware that the PM at the time (Helen Clark) was wrong when she referred to this clear act of treason as a 'criminal' act.

    I'm also aware that her government was incompetent for not placing 24 hour armed guard on the place along with placards proclaiming the guard's willingness to use lethal force in defense of the place.

    I'm also aware that the jury should have recognized the fact that this act deserved some punishment and decided to abrogate their responsibility because the government/prosecution had abrogated theirs. This threesome are now free to repeat their action and once again (the first example being Nicky Hagar et al.) these military installations were broken into and nothing was done to the perpetrators.

    This is the precedent that has been set. The fact that the NZ government doesn't give a rat's arse about issues of defense.

    This was a cluster f**k all round.

    That is the lesson from this story. Jury nullification by comparison is miniscule by comparison.

    The Dutch & Canadians are pulling out of Afghanistan and the Germans are looking to follow. The Spanish aren't living up to their military obligations and the US is running out of cash. Unless someone in this alliance of fools begins to get serious about wiping out the Taleban and Al Quaeda, then we'll be having to fight the bastards here and in Australia and in Indonesia in the near future.

    As I say, this story is a symptom of the general ignorance and lack of interest shown by NZers (government, jury, media and populace) in dealing to Islamo fascism. We'll live to regret this sort of stupidity and willful ignorance.

  35. Robert

    What exactly does that station actually do? No one has said much about it really.


  36. Anon

    So you'd prefer to incarcerate innocent people rather than accept the possibility of a guilty man going free.


    PS Before you start your imbecilic bleating, I'm not supporting the three acquitted. I'm not positing that they have done the right thing. I'm not saying the jury made the right decision.

  37. I have read a report of the decision and am inclined to now disagree with the jurisprudentially proposed notion of nullification in this instance. I perceive that this palpably wrong decision is a product of incorrect charges having been laid.

    What possible charges ought to have been laid is a dilemma. The fact the action of these weirdos was trialled as an essentially domestic matter when their own stated goal was to destroy a secure base suggests a charge pinioned on national security would have been apt. The law wasn't on trial here three miscreants were.

    Chris R.

  38. The base is a listening post. The spooks in there have sophisticated computers & electronics to eavesdrop on international (& perhaps local - if it's allowed by law) telecommunication traffic.

    Sophisticated software can pick up voice-prints of certain individuals that have been tagged. It can analyze messages looking for hidden patterns in them (tactics frequently used by terrorists).

    Electronic intelligence is the first line of defense for any country (western, islamic, totalitarian).

    Not having electronic intelligence is equivalent to a blind man trying to cross a busy street.

    The 3 nutcases should have been sent to prison for their crimes.

    The jury members failed in their duty here and it's got nothing to do with checking on the power of the government as PC has stated in his post.

    Let's ask the objectivists this question.

    When ones faculty of reasoning cannot integrate the nuggets of knowledge together then it failed and I would be surprised that any objectivist here is going to argue otherwise. The jury members didn't integrate the facts/knowledge about this case during the trial or integrate those knowledge nuggets but overwrote by their biases thus reaching a non-objective conclusion. Reality is not subjective. This is what was wrong this the outcome of the trial.

    I can guarantee, that had a computer program was used instead of the jury, the outcome would be based on facts that were integrated together to reach the correct conclusion (ie, guilty).

  39. What exactly does that station actually do?

    Obviously, they don't officially say, but

    Monitors satellite communications, which covers most electronic forms. The impression I have is that it covers a lot of the pacific, and there's an assumption that if the agencies aren't allowed to spy on their own citizens they just share the data with someone who is.

    I'd have though libertarians might argue among themselves about its legitimacy.

  40. I would like to add that my criticism here is that the jury were daft, irrelevant of who brought the case against who? Be it a private citizen against other private citizens, a private citizen against the government or the government against a/some private citizen/s, so the idea of jury nullification is a stupid one.

    Richard McGrath's example is a good one if we have to apply jury nullification to such hypothetical case.

  41. FF

    OK. Got it. Thanks for that. Most interesting purpose,


  42. Lyndon

    "I'd have though libertarians might argue among themselves about its legitimacy."

    I'd have thought so.


  43. Put simply . . . three Kiwis attacked Uncle Sam's war machine using scythes and a jury took less than two hours (long enough to have a cup-of-tea) to agree and set them free:

    I don't have a problem with this.

  44. @o'brien. They wouldn't have dared attack it if it had been an American base.

  45. When the Mt John Observatory housed the Baker-Nunn telescope which was funded and staffed by US military personnel it was frequently the target of wierdos like this lot. The Tangimoana set-up was also US managed and targeted by the woolly-headed idiots of the day.

    The thing that really puzzles me about the Waihopi attack is that I know a neighbour there who once drove a golfball across the fence to see what would happen. Apparently all sorts of bells and whistles went off. How then was it so easy for these dicks?

    I am convinced that this decision is wrong but not due to any attribute of the jury, but to the choice of charge laid. By that I mean a charge relative to an offence against national security. The law was not on trial the idiots were in a domestic context.

    Chris R.

  46. I'd have though libertarians might argue among themselves about its legitimacy.

    But the people posting here are, by and large, not libertarians; they're Randians, a different breed entirely.

  47. Greg

    Please elaborate. I'd be interested to know more on that subject.


  48. Randians are the anti-Christian camp of the libertarians. Also they ( randians) don't like if you’re 90%, 95%, 98% aligned with them. You must be 100% pure Aryan breed or else you're not one of them. James had previously highlighted this very point here on this blog.

    Do you want evidence? Look no further than this blog. Ron Paul is not regarded as a Libertarian, simply because of 1 or 2 issues that he (Paul) differs from the randians. There are similar examples of that here on this blog.

  49. Slimey

    You write, "Randians are the anti-Christian camp of the libertarians".

    No. I don't think that can be correct. For example, the leading libertarian writer Murray Rothbard was not a supporter of Christianity and he certainly could not be considered a Randian (Rothbard and Rand had a falling out and did not get on at all).

    Aside from him there are many libertarians who are atheists and many actively oppose religious faith. Most of them would not appear to be "Randists." Going back into history (prior to Rand) it would appear that libertarianism consistently sought to eliminate religious faith from politics (eg separation of church and state), much to the consternation of many Christians then and now). Religion was to be banished to the individual's private life.

    Libertarianism was an anti-religious philosophy in that it sought to restrict religious faith from politics- denuding religious practices and prejudices of any opportunity to attain political power or priviledge or even to be taken seriously in the process of making policy.

    While it is correct that people such as Ron Paul are identified as generally libertarian in their outlook, it is also correct that to the extent that such people attempt to enter religion into politics, they are acting against libertarian ideals.

    Anyway, what I was interested in was whether there was a debate amongst libertarians regarding the legitimacy of the station. Greg reckons that the people posting here are Randists, implying that they have a differing opinions on the matter than would libertarians. Is that so?


  50. @Slimey: "You must be 100% pure Aryan breed or else you're not one of them."

    Horse shit.

    You are well-named. Slimey is right. And disgusting.

    And unwelcome in this civilised company.

  51. "Horse shit."

    Partly true, for sure. What is all that weird stuff about anti-Christians?

    Nevertheless, his second sentence contains a kernel of truth that the denizens of this blog might want to reflect on.

  52. Stevew

    I suspect Slimey is religious. He's likely one of the people who wants to bring religious prejudices and superstitions to the fore in politics. In other words, a seeker of the rule of mysticism over people's lives. Of course it has to be his mysticism, not that of, say, Osama.

    As for comments regarding anti-Christian camp etc., he's misguided there. Libertarianism opposes the tenents of religion. It is not an ideology that supports or promotes religious belief in politics or anywhere else. If anything, Christianity adopted SOME of the ideas of libertarianism as the "flock" became more civilised and less prepared to accept some of the traditional notions and behaviours demanded by Christianity.

    The idea that "Randists" form some sort of "anti-Christian camp" within Libertarianism is false. It should be understood that Libertarianism is not a Christian ideology.

    Anyway, what I was really interested in was whether there is a debate within libertarian circles regarding the purposes of the station. It would be interesting to know whether Objectivists see the matter in a different light.


    PS. BTW "Slimey" wouldn't happen to be that silly pervert Redbaiter by any chance would he? I hope not.

  53. the leading libertarian writer Murray Rothbard was not a supporter of Christianity

    Actually, he was quite a fan of Christianity.

    Greg reckons that the people posting here are Randists, implying that they have a differing opinions on the matter than would libertarians. Is that so?

    Randians are libertarian in many ways, but yes, they have differing opinions: Randians tend to love wars and think it'd a good idea to nuke "enemy" countries; Randians, by and large, hate anarchists (of the proper, laissez-faire, libertarian kind, not the lefties), etc.

  54. Babylon and On23 Mar 2010, 16:50:00

    Randians are in general a small, cloistered, fringe group of people who are predisposed towards cultist/sect like behavior, which is why their utter lack of electoral support after an election cycle is met with supreme indifference.

    Randians are every bit as ecclesiastical as the organized religions they claim to despise.

  55. Thanks for that ill-informed piece of nonsense.

    Still, it appears to be in 'good' -- or at least appropriate -- company.

  56. Greg

    You're not quite right there. Rothbard was not a supporter or believer in Christianity. He promoted an atheist variant of anarchy.

    This is interesting,

    "Randians tend to love wars and think it'd a good idea to nuke "enemy" countries; Randians, by and large, hate anarchists (of the proper, laissez-faire, libertarian kind, not the lefties), etc."

    I've come across that before. I'm not sure why there is such a dislike of all the libertarians given that there is so much common ground- more so than with any of the collectivists! There seems to be more vitriol directed at libertarians than at said collectivists. I do not undersand why that should be.

    Meanwhile, back to the station. From what is on this thread I'm guessing that the Randian view is that its purpose is OK. On the other hand libertarians would be divided on the topic.

    Have I got that right?


  57. PC

    I think that the pervert Redbait is using differnt taglines. No-one wants him on their sites and he's been kicked off them all, hence he comes back with a different name...


  58. Babylon and On23 Mar 2010, 23:35:00

    "I suspect Slimey is religious"

    "Libertarianism opposes the tenents of religion."

    And I bet you really hate bigotry, intolerance and general prejudice too, right ?

    Call the FBI - cult alert!

    LOL :)

  59. Ah Redbait, sinking to your usual low.

    Try to understand that no-one wants you. You've been banned from sites because people do not want you around. There is something wrong with you. People detect it in your behaviour soon enough.

    Had you considered the problems that reside within you? Well, they do. The fault is in you. It's about time you faced up to the shortcomings of your intellect, your personality and your person. You really do have some serious problems (perversion being one previously demonstrated on this blog- is it any wonder people want you gone?). You need to go away and seek professional help. Seriously, you should get some professional assistance for your various personal issues urgently.


  60. Now, assuming the babbler isn't RB:

    Libertarianism is not a religious ideology. For example, Robert Ingersoll illustrates the point when he discusses freedom from religion. Go look him up.

    If you want to make an opposition case, then you need to actually make that case. You need to present a real argument. Are you up to it? Are you mentally capable of positing and defending your ideas? I'm betting you can't- that you are not capable of it.


  61. You're not quite right there. Rothbard was not a supporter or believer in Christianity. He promoted an atheist variant of anarchy.

    He wasn't a believer in Christianity as such (his wife, Joey, was though...Ayn Rand supposedly insisted that he divorce her for it!), but he was a supporter of Christianity (esp. Catholicism).

    I've come across that before. I'm not sure why there is such a dislike of all the libertarians given that there is so much common ground- more so than with any of the collectivists! There seems to be more vitriol directed at libertarians than at said collectivists. I do not undersand why that should be.

    I think most people have more hatred for people that are almost-but-not-quite like them than people that are very different. Or at least a different kind of hatred; it's like they're traitors or something because they're so close.

    Meanwhile, back to the station. From what is on this thread I'm guessing that the Randian view is that its purpose is OK. On the other hand libertarians would be divided on the topic.

    Yes (and I'm of the opinion someone attributed to you (LGM) above, that "government property" is unowned)

  62. Greg

    Yes, it is unowned.

    What fascinates me is the view held by some that if your IP agrees to obey govt request and filter content or report what people are downloading, then that's immoral. On the other hand, if the govt checks all the same material (and more) via monitoring stations and the like (here and off shore), then that's moral. Further anyone damaging such a station is a dangerous person who should be detained without trial (no trial, it's war!), tortured or executed by H&K or some such. Not consistent. Hard to fathom.


  63. I'm not surprised by the comments opposing jury nullification but I am very annoyed and they should be ashamed of themselves.

    In the US, at least, we have this concept that the government is of the People, for the People, and by the People. Our elected officials have no special knowledge or skill in creating laws. Jurors are the People and as such they ought to be free to decide if laws are just. The judicial system is the last place left in government where reason and justice can prevail, while the Legislature creates more and more horrendous laws and gains more and more power, rendering the People more and more helpless against them.

    Long Live Lady Liberty


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