I don’t agree on much with my old schoolmate Eric Rasmusen, a newcomer to the weblog craze; but we’re similarly disturbed over Lawrence v. Texas.

Scalia . . . probably would vote against the Texas sodomy law as a citizen. But as a judge, he is offended when other judges violate their oath of office and pretend the law says something it does not. That kind of behavior is serious, and calls for a serious response. If the President were to ignore the Constitution and say he was going to eliminate the Texas sodomy law, we would, I hope, impeach the President. Why, then, do we tolerate a Supreme Court doing clearly unconstitutional things?

Most, or at least much, of the world’s trouble can be blamed on the notion that governments ought to do every well-meaning thing that they can do. While I’m pleased (unlike Eric, I assume) at the immediate result, i.e. one bad law fewer, I don’t think it was any of the US judiciary’s business.

The increasing concentration of power is a disturbing trend, even – I might say especially – when it happens under the flag of a good cause. The power to overrule Texan sodomy policy is the power to overrule Californian marijuana policy.

Having said all that I suppose I ought to go read the decision. Who knows, I could even change my mind.

Mary Lou Seymour writes, apparently parroting the Fully Informed Jury Association:

This Wednesday, June 4, 2003, Ed Rosenthal is scheduled to be sentenced for growing medical marijuana in California. As you may recall, back in February after Rosenthal was convicted, nine of the Rosenthal jurors publicly protested the verdict, going on Dateline, CNN, and other media stating they would never have convicted if they had known this was a medical case. In other words, if those jurors had known about “jury nullification,” Rosenthal would not be facing a minimum of ten years in prison. . . .

Am I not reading the same words here that everyone else sees?: “nine . . . jurors . . . stat[ed] they would never have convicted” — that says to me that they didn’t need to be told about nullification; they’d have nullified even if they didn’t know the word — “if they had known this was a medical case,” i.e. if the judge had not protected them from being confused by inconvenient facts.

Nullification and the right to present defensive evidence are both important causes, but neither is served by confusing the two. In my humble opinion.

Update: The sentence and Rosenthal’s reaction.

What’s a Latin term for someone to whom habeas corpus does not apply? Anyway, MoorishGirl reports that an Intel engineer, naturalized 14 years ago, is among the ‘disappeared’.

Update:

Aug 6: Mike pled guilty today to one count of his three-count indictment. He admitted attempting to enter Afghanistan with members of the “Portland 6”. We hope that justice has been served, and our focus now shifts to support for Mike’s family in this difficult time.

2004 Oct 24: This item formerly linked to www.freeMikeHawash.org, which naturally is now dead.

Hey hey! Today’s headline in The Daily Review (Hayward, California) is: Jurors find merit in nullification. As I said before, nullification is not the whole story in the case that prompted this; but it’s good to see it in the air, as it were. ( . . more . . )

Demons in a death penalty case – Ellen Goodman writes in the Boston Globe about the peculiar practice of forcibly medicating mad prisoners.

I am particularly struck by the ruling in Ford v. Wainwright that it is “cruel and unusual punishment” to put to death someone who was mentally incompetent – so incompetent that he didn’t understand his fate or the meaning of death or why he was condemned. I agree that it’s cruel to kill someone without letting him know why; but, y’know, if I were about to die but too addled to know what ‘die’ means, I think I’d rather be left in that state than have it ‘mercifully’ explained to me.
( . . more . . )

Though Nordyke v King follows the Ninth Circuit’s gross misreading of US v Miller (1939) in its Hickman ruling, it’s interesting because Gould’s concurrent opinion says:

I join the court’s opinion, and write to elaborate that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the “collective rights” theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an “individual rights” view of the Second Amendment . . . .

Our panel is bound by Hickman, and we cannot reach the merits of Nordyke’s challenge to Second Amendment. [sic] But the holding of Hickman can be discarded by our court en banc . . . .

As Comedian points out, this judge was appointed by Clinton!

This raises an interesting procedural point of which I was unaware: this panel could not challenge Hickman because it was only three judges, not the full Circuit Court of Appeal. (How often does a Circuit sit en banc?)

It’s odd to see US v Rosenthal spun (e.g. here) as a demonstration of the need for juries to be advised of their power to nullify, after some of the jurors said they would have nullified had they known all the facts. The crime in this case is the judge’s exclusion of evidence.

I’d like to hope something good will come of this, but am not holding my breath.