I’m cooling my heels in the SFO airport with a big cup of Peet’s coffee, but will be in Chicago this evening. I hope my ducks are there when I return tomorrow.
According to Vice (and other sources), Jason Kessler, the guy who organized the white supremacist “Unite the Right” Rally in Charlottesville—a rally in which he blamed the car-attack death of Heather Heyer on the police, for crying out loud—held a press conference immediately after the rally. But Kessler’s address didn’t last very long. Right after beginning his “conference,” Kessler was rushed by the chanting crowd and then one guy, shown wearing a red checked shirt in the video below, punched Kessler. You can see the punch about two seconds into the video.
Well, this is assault, and the assailant, one Jeffrey Winder, was arrested, tried, and convicted, but apparently the ideology of the punchee Kessler mattered in determining his punishment. As Vice notes:
That protestor, Jeffrey Winder, was later charged and convicted for assault and battery, facing a $2,500 fine and a year in jail for clocking Kessler. But on Tuesday, a jury decided that his punishment for punching a neo-Nazi would only amount to a paltry $1 fine, local NBC affiliate WVIR reports.
Thus the Vice headline (click on screenshot to read article):
My own view is that although Kessler is a reprehensible human, his politics shouldn’t enter into the punishment of his assailant. For if that happens, it reduces the deterrent to physically attacking anyone who espouses generally despised sentiments, and in fact encourages such assaults. Just as freedom of speech guarantees a lack of government censorship of reprehensible speech, and the spirit of the First Amendment encourages us to avoid disrupting speakers like those invited to universities, so the same principle should encourage equal treatment of those who disrupt or assault speakers—regardless of what the speaker says.
In my view, Winder’s punishment should therefore be something close to the average for people who assault and punch someone they don’t know. (I suppose the degree of physical damage or pain inflicted should also matter.) Clearly, the jury decided otherwise, sending a message that it’s pretty much okay to punch some people as opposed to others. (I guess in Virginia the jury is allowed to levy the sentence.)
Vice’s report on the sentencing concludes with this:
Tuesday’s sentencing was just another big L for Kessler, who staged a second Unite the Right rally in DC last month that basically no one showed up to. Since then, he’s busied himself by rattling off anti-semitic screeds online, only to have his dad yell at him in the middle of a recent livestream. According to the 34-year-old’s dad, his son is currently living off and on with his grandmother, a housing situation Kessler has blamed on all the lawsuits he’s dealing with.
And while punching anyone in the face, regardless of how offensive their views are, might be deemed morally reprehensible, we now at least have a better judgement of just how much that kind of behavior could cost—less than a cup of coffee.
Maybe it’s me, but that last paragraph almost sounds as if Vice is excusing Kessler’s assailant, or at least the crime of punching someone whose views are socially abhorrent.
Now I don’t know if Kessler can even be classified as a Nazi, but he’s clearly someone whose views will offend any right-thinking person.(By “right”, of course, I mean “correct”, not “conservative.”) But even white supremacists and anti-Semites deserve equal treatment under the law. In this case, Kessler clearly didn’t get it.
I would hope that most readers agree with me here, but feel free to weigh in below.
Hear! Hear!
Fighting words with punches is like eating a whole bag of cookies in one sitting. It might feel good at the time but it is not in our best interest looking forward.
+1. Even neo-Nazis have the right to equal treatment under the law.
I assume this was a criminal trial. The puncher can still be subjected to a civil lawsuit.
I’m a little ambivalent since it is the jurors who levied the sentence. If it was an actual judge, then I’d be disturbed. I don’t know why I feel this way…perhaps I don’t hold the average juror responsible for an objective understanding of “equal punishment under the law”. I also think this highlights why a jury shouldn’t be responsible for sentencing.
See below. This was an appeal. A judge did sentence him to 30 days, suspended. The jury upheld that verdict and imposed a 1$ fine.
Aha, thanks for the clarification.
The law called for a trial with a jury. He was convicted and sentenced by the jury. The law was followed. They had a range of punishment and picked within. The term extenuating circumstances often get bandied about.
This was an appeal. The jury upheld the judge’s original verdict (30 day suspended sentence) and imposed a fine (they can do this in Virginia).
Can someone clarify: What does a 30 day suspended sentence mean? Does suspended mean – “we were going to make you do time but than changed our minds. Go home and be a good boy.”
How does it differ from a decision to apply no punishment at all? Why bother to sentence someone if it will be quickly nullified?
It means, provided you don’t fail to meet requirements set by the court (say, no contact with victim) then you don’t have to go physically to jail. Your record will still show the conviction and if at any time during the suspension the court finds you’ve violated those conditions, your ass in behind bars.
Well, unless those conditions are significant, like pay to rebuild your victims nasal bone, it doesn’t sound all that useful. It does sound a lot like, “OK, go home a don’t do it again!”
It means that “Yes you did it, and it would normally carry a thirty-day sentence, but taking all the circumstances into account including your past record, we will give you another chance, provided you keep out of trouble”.
It is frequently extended to first offenders for minor offences.
cr
OK, that makes sense.
Equality under the law is fundamental to a functioning democracy.
Perhaps Kessler, as part of his diatribe, uttered “fighting words” thus not covered as freedom of speech and provoked the assault which the jury considered as mitigation for the offense. Not everything that comes out of one’s mouth is “free” speech.
Seems the trial jury disagreed (they convicted the assailant).
But they fined him only $1.
It is entirely possible for a jury to find the offence proved (hence the conviction) but to consider that the circumstances are such that a nominal penalty only is in order.
cr
I too wondered about the “fighting words” stuff found in some parts of the US.
I agree with you, Jerry.
You aren’t the only one, and I agree with you. Many regulars won’t; we have already seen one above give a nufdge nudge wink wink to the same kind of jury nullification that we used to see in the Deep South.
During the Bundy trial in Oregon, there was a concerted effort on the part of the defense to encourage jury nullification. It’s becoming popular again.
Has been for a while in the fever swamps of the Rothbardian right. Google FIJA.
Technically, this was the “battery” part of the offense.
It’s quite unusual for a jury to be called upon to fix an offender’s punishment; that role is generally reserved to the judge (except in capital cases). Anyway, much of the deterrent effect of a criminal prosecution of this nature comes not from the sentence itself, but from making the offender “ride the rap” — bear the burden and expense attendant to standing trial.
What happened here is close to “jury nullification,” the inherent power of jurors to be the final arbiters of the law. Judges hate that concept, since it usurps much of their jealously guarded authority, but it is an enduring and noble American tradition, dating back at least to the landmark free speech case of John Peter Zenger during colonial times.
This one reminds me a bit of a high-profile case back in the 1980s (albeit involving civil litigation) in which the quondam United States Football League sued the NFL over an alleged antitrust violation. The jury found the plaintiffs, but awarded them just $1 in damages (which, pursuant to the statute’s “treble damages” provision, the judge increased to $3, and, IIRC, NFL commissioner Pete Rozelle paid on the spot, in cash, out of his pocket).
The jurors’ penuriousness in that matter was due largely, as I understand it, to their revulsion at the lead USFL owner in the courtroom — fella name of Trump, maybe you’ve heard of him.
The “noble tradition” of Byron de la Beckwith and countless kluckers
Even a noble tradition can be set to ignoble purposes.
And Mr. de la Beckwith got his in the end, thirty years later, when he was re-prosecuted by Alec Baldwin (though I might be confusing it with the movie version there 🙂 ).
Wanna make a bet on the fraction of nullifications that were ignoble?
It’s not a noble tradition, and no jury has the *right* to it. They only have the *power* because they cannot be punished legally.
Were I a gambling man — and I most assuredly am! — I’d be willing to lay a wager (at the right price, naturally), but I’d need to know in advance how you propose to calculate the “fraction” that would be deemed “ignoble.”
Jurors, of course, can as lief be swayed by prejudice as by justice, but I tend to have faith in them. Be that as it may, I believe jurors only rarely fail to follow the court’s instructions to the best of their ability, and then only in exceptional cases.
Let’s start with a report from 1947 showing the number and percentages of convictions of whites for attempted lynching.
http://credo.library.umass.edu/view/pageturn/mums312-b116-i277/#page/1/mode/1up
3%, 4% conviction rate in the Deep South. Those numbers are the high ones. Texas had a 0.2% rate. Now compare that to Minnesota, 33%. Minnesota had racists but it didn’t have quite the tradition of nullification. I am willing to settle for the difference. That is, count 30% of all cases in the south as odiously nullified. This I think generous to you, since prosecutors will have turned down cases they felt less secure in.
0.2% by the way is 1 in 500. That is was measured shows there were about 500 cases at least, so for Texas for 1900-1946, so my low end estimate for Texas is 150 cases.
I don’t think lynching acquittals in the Jim Crow South constitute paradigmatic instances of jury nullification. In those cases, the entire white power structure was conspiring against justice for the victims — law enforcement, judges, the majority of the population. (Hell, southern governors would frequently show up to glad-hand the defendants in the courtroom.) Those weren’t instances of juries bucking the system to achieve justice, which is what quintessential “jury nullification” is all about.
Nonsense. They were tried by prosecutors feeling the pressure to not try them. That’s the whole white power structure working to *prevent* trials. Only the strongest, clearest cases would go to trial.
Of course nullification looks better if you don’t count the cases where it’s odious! You have redefined nullification as bucking the system “to achieve justice”. By that red queen definition odious nullification is impossible. But nullification is bucking the law to impose their preference, period. And it is clear white juries nullified routinely.
And who said anything about “paradigmatic”? My bet was about VOLUME.
Where by the way is your data?
I never claimed to have “data,” and I’m unsure how such data could be compiled, since jurors do not check a box in a verdict form to indicate where they’ve engaged in nullification.
And I’m not buying your tendentious statistics. First of all, the link you’ve provided is to three illegible pages (in my browser, anyway). I also have no idea why you’d limit the inquiry to “attempted lynchings,” since most lynchings were successful. And you seem to be gauging jury nullification solely on the basis of verdicts you disagree with.
But much more fundamentally than any of that, the problem with lynching acquittals in the Jim Crow south was not one of jury nullification simpliciter; the problem was the racism inherent to the Jim Crow system itself. Under the circumstances, for southern juries to have resisted the the clear signals it was getting from the bench, from the prosecution, from the courtroom audiences — from the entire white southern power structure itself — by returning guilty verdicts would have been closer to the spirit of jury nullification. To criticize jury nullification solely on the basis of Jim Crow lynching acquittals is akin to questioning the efficacy of genetics based solely on the abuses of eugenics.
Let me make that last point in another way: I think it in the nature of a truism that any sickness plaguing a society will be reflected in its public acts. That is as true of instances of jury nullification as it is of legislative enactments or judicial opinions or executive actions or that society’s norms and traditions. In the segregated south of Jim Crow, ALL of these were infected with virulent racism. Are you also opposed in principle to statutes and judicial opinions or the taking of official acts by governors and mayors as a result?
Look, my only and very narrow point — which we may have to agree to disagree about (since, after all, people have been arguing the merits of jury nullification for almost as long as there have been juries) — is this: jury nullification can serve as a vital check on the abuse of power by the de jure institutions of government by allowing jurors, in extraordinary cases, to vote their conscience rather than to follow the strict letter of the law. (For an example, see the case mentioned below here by commenter mikeyc).
@ Ken
I can’t tell you how much I’ve been appreciating this conversation. And I’m glad to know that nullification exists and is (supposed to be) used for precisely the sorts of reasons I’d always thought it was.
> “as lief”
I had never encountered that word before! Thanks.
You came to mind a few times this week Ken. I unexpectedly ended up as a juror in a 1st degree murder trial and was in court all week. It was a very interesting experience. Disturbing, fascinating, worrisome and several other things. Thought I was gonna be sick at one point and was just about to signal a bailiff I had to leave. Is that common?
I’ve handled 15 murder cases, all of them non-capital offenses. Never had a juror ask to leave once deliberations had begun. I did have that happen though on two non-murder cases that were controversial and received a lot of media attention. The stress level on such a case can be very high.
Not sure if by deliberations you meant jury deliberations, but to clarify, it was during the trial at one point that I became ill. Didn’t sleep much either.
Jurors tend to take murder cases seriously — very, very seriously when it’s a capital murder case (but, then, everyone involved does). A lot of potential jurors have to be stricken for cause, since they’re unable to handle the pressure. Where I practice, capital cases are bifurcated into a “guilt phase” followed by a “penalty phase” (if the defendant is convicted of 1st degree murder in the guilt phase).
What do you think of our justice system now that you’ve had a look inside, Darrelle?
I haven’t really sorted it out much yet, but a few things that come to mind.
Actual fair justice is much harder to achieve than might first be supposed because reality is messy and humans are messy and limited.
The proverbial “it ain’t like they show it in the movies / on TV” is very much true.
What the attorney’s on each side do not say often sticks out like a sore thumb. I’d rather they didn’t do that.
I wonder how much the jury is not being told, how relevant it is and how sound the decision that the jury shouldn’t know it is.
At least in a case like this one, meaning given the circumstances and the evidence, it can be hard to keep firmly in mind that the defense doesn’t have to prove anything.
I think that the basics of our system are on point but I don’t have the experience or knowledge to seriously evaluate it. The basics I mean are, trial by jury, innocent until proven guilty, beyond a reasonable doubt, the defense doesn’t have to prove anything.
None of the people involved, not the judge, state’s attorneys, defense, jurors, witnesses or experts appeared to be anything other than normal humans and when so much is at stake you’d really rather prefer everyone to be exceptional. But, on the positive side, it is evident that the system has been, at least in part, designed to cope with human mediocrity and imperfection.
Well said. This conforms to my experience as well.
Yes. And, more generally, democracy(as in our modern republic) as a whole is supposed to be about self government by imperfect individuals. We cannot trust a supreme leader, or even a philosopher king. Sometimes we the people get it right because we have a wisdom of the masses, and sometimes we get it terribly wrong( any current example spring to mind?)
Yeah. I’d just add that it isn’t only about trust, it’s about human limitations. I think by this time in human history the evidence is clear that humans do better making big decisions by methods that involve lots of people via appropriate methods rather than leaving it to individuals.
“What the attorney’s on each side do not say often sticks out like a sore thumb. I’d rather they didn’t do that.”
In my experience on juries (in far less serious cases) I noticed the same thing. There were obvious gaps in the story that we had to fill in by guesswork.
I don’t think this was due to any conspiracy, just due to the format of calling witnesses and cross-examining – the story would emerge in a patchwork fashion and I guess it wasn’t always obvious to the lawyers (who pretty well knew the story) that there were some bits we hadn’t been told.
I don’t think any miscarriages of justice arose from that. I think the prejudices of some of the jurors were probably more of a risk.
cr
I can see how discontinuities in the “story” would arise. I would think, though, it would be in the interest of justice to sew things together – at least at the end. Wouldn’t the closing statements by attorneys on both sides be the perfect opportunity? Since the process is adversarial, we might end up with two different narratives, but at least the jury could choose between them.
I don’t disagree, but I did not mean gaps in the story due simply to lack of evidence. That, I think, should be the expectation. Reality is messy enough that having a complete story is highly improbable and not to be expected.
Your last paragraph is one of the things I meant. The system is very careful about what information the jurors receive in order to avoid bias on their part. The judge and the attorneys know much more. I agree completely with the intention of this part of the system, but I want to know everything there is to know anyway.
Another aspect of this I had in mind arises simply from the adversarial aspect of the system. The states attorneys are trying to get a conviction, not necessarily find the truth of the matters. And the defense is trying to get a not guilty verdict. The truth of the matters is of secondary concern to them at best. They don’t point out things like inconsistencies in the evidence. This is sometimes obvious and for me personally them ignoring it, until perhaps the other side brings it up later, rather than addressing it up front immediately makes me suspicious that their case is weak and they know it. Perhaps ignoring such issues works best for them on the average juror, but for me it is a serious negative.
Hi Ken,
I can comment on your last question to Darrelle.
I am an engineer; and as such, have been removed from every jury panel I ever sat in except one, a robbery case, where I was the alternate. Being alternate was great: I got to hear the entire trial and then was dismissed when the jury went to deliberate (and be sequestered!).
The instant I was dismissed by the judge, the bailiff was at my elbow. “How were you going to vote?!” Which was guilty in the case. (The guy was convicted.)
I’ve been in court one time to fight a traffic violation (the officer issuing the citation said, “I advise to you go to court for this.” which was rather a giveaway).
Having been paneled many times, sat in a jury once, and been in court myself once, my impressions:
1. Very impressed with the judges. These are people I’d like to deal with.
2. Generally impressed with the attorneys. Smart, classy people, in my experience.
3. Defense attorneys generally able to give a pretty good emotional spiel, in absence of exculpating facts.
4. The interplay between the main characters (judge, prosecutor, defense attorney) often goes too quick for a novice to follow. The players are all anticipating the moves of the others and making motions/objections, etc. so fast and the judge calling them so fast, I was rather amazed (this from the robbery trial).
I think they try to get rid of jurors they think they can’t sway with BS. I’d take it as a compliment.
That’s pretty cynical, Paul; my experience is that “bullshitting a jury” is a vastly overrated approach.
My cases go to a jury trial only if we believe that, if the fact in doubt are resolved in our favor, the jury will plausibly find the defendant not guilty — or if the prosecution refuses to offer anything less than the maximum penalty (in which case, we have no choice but to go to trial).
Ok, perhaps BS was a bit strong. I didn’t mean to imply any more than a lawyer’s best efforts to win over the judge or jury. Of course, a single lawyer’s presentation of the case is expected to be biased in one direction and not a fair presentation of both sides, so it is generally false by omission or emphasis.
If an attorney plans to appeal to jurors’ emotions as a key strategy, they might try to avoid jurors who are likely to favor logical arguments, like engineers.
I thank you and Darrelle both for your insight on this, jblilie. I’m sure both of you did your level best when called to jury service.
You’e both welcome to come sit on one of my juries anytime. 🙂
How is it jury nullification? Didn’t the jury uphold the judge’s verdict (this was an appeal of the original sentence) and added an additional penalty – the $1 fine?
I’ve got another question – what is it called if a jury rejects a charge that the prosecution made even though the evidence supports it? I served on a jury many years ago of a kid who was caught with a small amount of pot but he also had in his possession one of those cigarette rollers (a little machine you use to roll your own cigs). They charged him with “operating a drug factory” because of that. A felony. The kid was 17. Technically, he was guilty as the judge instructed us that the little cig roller qualified as evidence of a “drug factory”. We found him not guilty (of that charge).
Is that “nullification” or is there another way to look at it? Were we (legally) wrong to decide that way?
Sorry for the derail…
That was “jury nullification” in its purest form, Mikey, and good for you guys for doing it. This situation with the $1 fine is something analogous, the way I see it.
Oh. I thought it meant undoing a sentence, but your comment and a little googling later and I see that was sort of text book nullification. LSNED
That was the entire reason for having juries in the first place, back in the Middle Ages. It stopped the authorities railroading anyone they didn’t like.
In your case the authorities had plainly distorted the intent of the law to charge the guy with a crime quite out of proportion to the actual offence. In a case like that it’s actually the jury’s public duty to refuse to convict (though the prosecution and possibly the judge might not agree).
cr
I agree with you, totally. My neighbor
is a neo-Nazi and sports a swastika emblem
on his car and I burn his car to the ground..
then I get a $100 fine and am told don’t
do that again. Sound fair? I don’t think so!
I agree but it leaves me wondering. What is the usual punishment for such a punch, assuming it is a first-time offense?
Good point. Also, I suspect the injury was very negligible. No harm no foul?
In many jurisdictions, for a first simple battery case, a defendant would be given the option of going into a “diversion program,” involving probably an anger-management course and maybe some community service, after which the charges would be dropped. (I don’t know whether such a program was offered in this case and the defendant rejected it.)
That sounds about right. Obviously what I was wondering is if the only strange thing was the silly $1 penalty. Even that is not unusual. I’ve heard it done many times.
Just reverse the circumstances… a hard left speaker (promoting unlimited immigration, say) is punched by a Republican and a jury in a Republican state find her guilty and fine her $1. Does that seem equally appropriate?
Yes, it seems equally (in)appropriate.
Yes, I think both are equally inappropriate, and I agree with Prof. Coyne.
I do think this punch was justified. Or at least it warms the cockles of my heart. Buzz Aldrin (79 years old) punched out at much younger and bigger Bart Sibrel (45 years old). Sibrel is a moon landing denier who just called Aldrin a liar and a coward.
I think the Aldrin punch is a good illustration of how the nazi punch was wrong. In the Aldrin incident, Sibrel was the aggressor and Aldrin tried repeatedly to retreat. In the nazi incident, the nazi was retreating and was not physically threatening anyone. Imagine if Aldrin had gone to a Sibrel press conference and without any personal provocation rushed at him and thrown a punch. Would you still call it justified? Would it still “warm your cockles”?
I’m sorry George but I think I misunderstood your comment. I interpreted “I do think this punch was justified” to be referring to the nazi punch in the original post. Upon rereading your comment it seems you were referring to the Aldrin punch which I agree was justified.
Sorry about that – my post was poorly written. I was referring to Aldrin’s punch. Sibrel actually wanted the DA to press charges. Sure, the DA would charge an American hero, then almost 80 years old for punching an aggressive, hulking (Sibrel was 6-4, pushing 300 pounds) much younger man who was in his face screaming insults at him.
Freedom of speech and equal treatment under the law are noble sentiments. However, in our imperfect world, violence is one thing that (always)works
Sure, it’s one way to get the trains running on time, but what are you proposing, Mr. Wolff, unlimited forceful self-help? Dominion of the strong over the weak?
Gotta agree with Jerry on this one
The last paragraph might be excusing Kessler’s assailant, or it might mean merely that a judicial precedent has now set the legal and financial cost of punching a person holding unpopular views.
As to your larger point, I agree the sentence doesn’t seem much of a deterrent but it’s difficult to comment on either the judge’s sentence or the jury’s additional dollar without knowing the sentences insimilar cases. Presumably the assailant has been inconvenienced by his trial and now has a criminal record.
I am not a fan of violence. Those who joke about wanting to punch nazis are not much different, in my opinion, of people who lament for the days when you could beat children.
+ 1
I’d say it’s just as important that it’s not just the puncher who isn’t being treated equally under the law, but Kessler as well. The jury has decided that Kessler does not really deserve the protection of the law — even protection from physical assault — because of his political views.
The $1 dollar penalty undermines justice and makes the state look impartial.
In the nineteenth century SouthWest US, people used to take justice into their own hands…is that what the Left wants?
sub
Presumably you meant “partial,” not “impartial.”
Similarly, Eric Clanton, the Antifa assailant who smashed several people in the head with a metal bike lock (causing much more severe injuries), was merely placed on probation.
I agree that the punishment doesn’t fit the crime, but it’s worth noting that having an assault conviction on your criminal record is disastrous in any case.
Good post. Even the media, although it’s Vice, seems to not understand the things that should fall under 1st ammendment protection. Which is ironic given their job.