Tuesday, February 13, 2007

Justice or the Law

Not the same concepts are they? We all know of unfair laws or laws that are fair but not applied fairly. In the 19th century the Fugitive Slave Laws required that escaped slaves be returned to their masters. Is this just? Not unless slavery is just. Many were arrested during the civil rights movement for breaking laws in order to protest the existence of segragation. Is it just that these people should be imprisoned for what they did? Only if you believe segragation of the races is just.

There are times when our own notions of justice and the law conflict. If we are asked to sit as jurors in a case involving such a situation what is our duty: to follow the law or to do justice? When a lawyer appeals to the jury to do justice when that means refusing to apply an unjust law that is called jury nullification. But although in a criminal case the jury has the power to do what it considers right, the judge will tell you that jurors do not have the right to do so. In fact many judges will accuse lawyers of violating the standards of professional conduct if they seek jury nullification. The rule from the judge's perspective is easy: the judge explains the law to the jury and the jury then applies the law as explained to the facts of the case.

Today many believe that the terminally ill have a right to die, although in most states to assist them in doing so is to commit murder. Is it just that people who pull the plug on hopelessly ill relatives be tried for murder? I believe most of us would at least say it is a personal choice which is beyond the law. Is it just to punish those who supply the ill with marijuana to alleviate their pain? Most would say no but the law in most states prohibits the distribution of marijuana and such a person would be subject to prosecution for doing so.

Does a soldier have a right to refuse orders in a war he considers unjust, or to refuse an unjust order in a lawful war? In the Vietnam era many refused orders on this basis and a few were prosecuted. What then is the role of the judge or the Court? To follow the law or to do justice? In today's Iraq war, a few are beginning to question the war's legality; do they have a right to refuse to go there if ordered?

The law simply doesn't have all the answers or, to put it another way, the law has all the answers up to a point where human conduct takes us into uncharted waters. I have a case like this coming up for trial; I know the judge will lose it if he thinks I am going for jury nullification. I know it is not just that my client be convicted for behavior, that while illegal, did not cause the kind of harm the law is meant to prevent. If I do my job, as the law intends it, I must follow the law in defending my client. If I seek a just result I'm going to have a bumpy ride at the trial. A dilemma, huh?


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