Law of Unintended Consequences

When the 4th District Court jury failed to come to a verdict in the case of the Boise cop charged with having sex with a 17 year-old-girl, the penalty factor may have played a role in their reluctance to convict.

He faced up to life in prison and it is possible that jurors felt such a severe penalty may have been too harsh for consensual sex–regardless of age. There is nothing right about a cop having sex with a minor while on duty–if it happened–but society realizes there should be degrees of sentencing.

This reluctance of jurors to convict became very apparent in 25 years ago when the legislature passed a drunk driving law with a MANDATORY 10 DAY JAIL sentence. Instead of more convictions and fewer DUI’s, the end result was fewer convictions. Even judges at the time said their “discretionary authority” was being usurped.

We may see the Ada County prosecutor try for a reduced charge in an effort to get a conviction the next time around. That may be a good move in the interests of justice.

Comments & Discussion

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  1. Is the jury aware of the penalty when they sit in judgment? Sentencing is for the judge and the potential penalty for the crime is irrelevant to a jury’s determination of guilt of the crime charged.
    But the point is well taken that taking discretion away from judges binds the system. Creating mandatory prison terms without funding prisons is an unfunded mandate.
    Knowing this prosecutor, she won’t reduce the charge without pressure from above. She believes in her cause but the paper’s rendition of the case certainly raised doubt. Was it “reasonable” doubt?

  2. As usual, the Guardian exhibits the wisdom of Solomon!

    I’ve always had a bit of an issue with that magic 18-years-of-life threshold. How is it that a child miraculously becomes an adult on that 18th birthday? (An aside: I know 30-year-olds who still ACT like children.)

    Some time back, a good friend was convicted of statutory rape – an isolated encounter with a willing partner who was just weeks shy of her 18th birthday. SERIOUS error in judgment on his part, but if she’d been 2 weeks on the other side of 18, no crime. Instead, he registers as a sex offender for the rest of his life.

    If the cop did what he’s accused of, he deserves some rather severe punishment, IMO. BUT… unlike a child, a 17-year-old girl should also be ALMOST as accountable as an 18-year-old, no? Particularly if she willingly participated.

  3. Being an old person I remember when women under 18 were called “Jail Bait.” While I have women in my family who have been abused and I believe them, one still has to question the statement of a teenager who may not have a very clear view of the world, and the potential of ruining a man’s life forever. These “she says” “he says” scenarios are problematic. I would not vote to convict a man based on what I read in the news media. Still, men need to tatoo “jail bait” on the back of one hand so as to remember the trouble they can encounter. The man in question may not, after all, be innocent, just stupid.

  4. Jury nullification!!!

    This is what nearly happened, instead, the jury was “hung” and a mistrial declared, thus leaving open the possibility of a new trial and a less “informed” jury rendering a guilty verdict.

    It’s high time everyone became familiar with the term “jury nullification”. I don’t have time to write about it but everything one needs to know can be found at (fully informed jury association).

    sample paragraph from;

    “The role of our jurors is to protect private citizens from dangerous government laws and actions. Many existing laws erode and deny the rights of the people. Jurors protect against tyranny by refusing to convict harmless people. Our country’s founders planned and expected that we, the people, would exercise this power and authority to judge the law as well as the facts every time we serve as jurors. Juries are the last peaceful defense of our civil liberties.”

    IMO the greatest crime in our so-called justice system is defense attorneys not being allowed to tell a jury they have a right to “nullify”, that is the defendant probably is guilty, but the law itself is wrong and therefore no crime has been committed.

    Someone correct me if I’m wrong, but if a defense attorney was to bring up nullification to a jury, the Judge would/could declare a mistrial or fine the attorney for contempt, or worse. I say BS.

    Does it sound like I have an ax to grind? Well try being wrongfully arrested and dragged through the so-called “justice system” based on the lies of others like I was. Maybe some of you could prod the story out of me one of these days. It’s a sad one.

  5. No cynic, you’re not wrong. If an attorney gets up to tell the jury not to follow the law, he will face some level of sanction. Its not something an attorney would do except in the zealous advocacy of her client’s best interests. It is the wrong forum to raise the issue and a jury’s job is to follow the law the judge gives them and determine whether the defendant broke the law by the differing facts presented by counsel in the courtroom. Its up to the Legislature to re-write the law if the law is wrong and that’s where that issue needs to be addressed.

    That is not to say jury nullification doesn’t happen but as you might imagine advocating a jury not to follow the law is the road to anarchy. Neither do I think it almost happened in this case. I believe some jurors felt there was reasonable doubt whether a crime was committed while others did not.

  6. Sisyphus, I respectfully disagree about nullification being the road to anarchy. On the contrary, quashing the “right” of a jury to nullify (by keeping it a secret) based on said jury’s belief that a given law or penalties for conviction is unjust; is the road to tyranny, in my opinion.

    A series of nullifications, given a particular type of case, is the surest and maybe the only way to get a legislature to rewrite a law. Once a law is on the books—well, how often do they get repealed or even revisited?

    Regarding my particular travesty, my only way out was to go to trial and hope for nullification. My attorney said he wouldn’t argue nullification, but we did discuss slyly bringing it up with me somehow blurting it out while on the stand.

    Instead, I gave in to the gov’ts plea deal and have regretted it ever since. Note; I didn’t do any time and I got a with-held judgement, so, probably not a bad deal considering the risk of pissing off the judge during a trial.

    Regarding the case of the cop and the 17 yr old, I wish the local media had interviewed the jurors. However, if one or more jurors practiced nullification, I doubt they would admit to it. Maybe Idaho has some law against interviewing jurors after a case?

    So as the Guardian opined “the law of unintended consequences” how many more of these kind of cases will be nullified by a jury’s feeling that the punishment doesn’t fit the crime? Taxpayer’s money will be wasted trying to prosecute these cases or worse, prosecutors may give up trying these cases, and some truly bad guys may get off ala that Joseph Duncan guy in CD’Alene. I know that’s a stretch, but I hope you get my point.

  7. CYNIC–I respectfully disagree . While I agree that failure to convict on clear facts might be evidence in a legislative hearing for changing the law I don’t think that nullification should be built in to the system as you suggest. Weighing the pros and cons of a particular law is precisely the legislative function and the legislative procedures are set up to address those concerns. A jury is selected for its lack of bias on the case to be presented and which WILL NOT include the pros and cons of the law to be administered. Every juror takes an oath to decide the case on the law the judge gives them and to do otherwise would be to break the oath and the law. So no they won’t admit to it but it still may play in the deliberations.

    Did you try talking to your legislator? That’s what they are there for. I’ve had good success in getting their ear and even taking action. I’m sure Dave could comment on this with his varying degrees of success.

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