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Clark Neily

@ConLawWarrior

Jul 1

19th C Prosecutor: Man, this job sure would be easier if stupid jurors would stop assessing the moral legitimacy of the cases we bring.
19th C Judge: Well, let's just tell 'em they can't.
P: Wait, what? We can't do that.
J: Why not?

P: Well first, because it's not true. And defense counsel will say so.
J: So we don't let them.
P: I mean, at least some jurors will still know they can acquit against the evidence to prevent injustice, even if nobody tells them.
J: So we'll just kick them out of the jury pool.

P: Hold on—like literally prohibit somebody from serving on a jury simply because they believe, CORRECTLY, that they can acquit a factually guilty defendant in order to prevent injustice? We can't do that.
J: No, YOU can't do that—but I can.
P: Oh, man—I like where this is going

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Clark Neily

@ConLawWarrior

Jun 29

🧵 The beauty of a system in which the government can only obtain a criminal conviction from a unanimous jury is that it makes it virtually impossible to enforce laws that do not enjoy essentially unanimous support of the community—things like rape, robbery, and homicide.

By contrast, prohibitions that are not unanimously supported in the community (let your mind wander here) will be extremely difficult to enforce because the defendant has a good shot of getting at least one juror who will refuse to convict.

Founding era practice—which included colonial juries “nullifying” seditious libel laws, particularly when the “victim” was a royal representative (and later fugitive slave laws)—makes clear that this was considered an indispensable FEATURE of criminal juries, not a bug.

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Clark Neily

@ConLawWarrior

Jun 18

@Mac_Vaughan

@Mac_Vaughan He's dead wrong, but not for the reasons that most people seem to suppose. And it's important to understand why he's wrong, so I'll spell it out. First, he is of course correct that the 5Am right not to be a witness against oneself applies only in criminal cases.

@Mac_Vaughan

@Mac_Vaughan It is also accurate to suggest, as he seems to do, that in our day-to-day lives, we generally expect people who have been wrongly accused of something both to deny it and to explain why the accusation is wrong. In normal life, the failure to do so is typically seen as suspicious.

@Mac_Vaughan

@Mac_Vaughan But in this case, the accusations against
Clark and Eastman (who appear to have behaved deplorably, to be clear) arose in a setting where they each have potential criminal exposure. So they clearly had a right to remain silent, but should we find it suspicious that they did?

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Clark Neily

@ConLawWarrior

Mar 21

If I were chair of the Senate Judiciary Committee, I'd give SCOTUS nominees the opportunity to question senators at the end of the hearing. Here are some questions I'd love to see from a nominee to certain committee members:

1. Do you think SCOTUS was right to judicially amend §1983 by inventing the defense of qualified immunity, and if not, what have you personally done to try to amend §1983 to clarify that there's no QI defense? (And same question re absolute prosecutorial immunity.)

2. Do you agree with SCOTUS that Congress has the power under the INTERSTATE COMMERCE CLAUSE to criminalize the purely intrastate, noncommercial cultivation of a plant?

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Clark Neily

@ConLawWarrior

Mar 21

Sen Tillis just mentioned #KetanjiBrownJackson 's senior thesis. It's excellent and addresses a topic that should keep every senator awake at night: the use of coercion to induce criminal defendants to waive their constitutional right to a jury trial, which nearly all do today.

Here's my annotated copy of KBJ's thesis on coercive plea bargaining. Note the abundance of originalist-friendly language and her passion for a key constitutional right—the criminal jury trial—that has been rendered practically extinct on American soil. dropbox.com/s/1jitmkxjjw9u…

Think I'm exaggerating? I am not exaggerating. 98.3% of criminal convictions today are obtained through guilty pleas rather than constitutionally prescribed jury trials. And if you think it's possible to hit that number without coercion, you're dreaming.

https://twitter.com/LarsTrautman/status/1504165313746718720?s=20&t=i40TfaVvHs7JMX8hu7KCIg

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Clark Neily

@ConLawWarrior

Feb 11

Something I've only recently come to appreciate is the truly extraordinary lengths to which judges, prosecutors, and other system actors will go to ensure that ordinary citizens have virtually no role in the administration of criminal justice. /1

This includes minimizing the number of criminal jury trials by inducing people to plead guilty (prosecutors) and turning a blind eye (judges) to patently coercive techniques such as threatening to indict (or promising not to indict) family members simply to exert plea leverage./2

On the civil side, the landscape features a rat's nest of half-baked judicial rationalizations for turning away plaintiffs with plausible—and in many cases compelling—claims against rights-violating government officials. These judicially confected avoidance doctrines include /3

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