justice as a human undertaking

Regarding the jury nullification LD resolution, I'd like to share a few more snippets from William Dwyer's In the Hands of the People. (The first installment is found here.)

1. I like the quotes Dwyer uses to preface his work, and, shamelessly, I'll reproduce them here. The first is by John W. Gardner, in Morale, and makes a nice warrant for the value of justice.

Justice is probably the oldest and most universally professed value. Anthropologists and historians are hard put to name a healthy society that has not honored (or professed to honor) some variation of the idea. Nature is unjust, humans are often unjust, and yet we refuse to live in a world without the idea of justice.

The second is by Sir Patrick Devlin, and comes from his lecture titled "Trial by Jury," found in the Hamlyn Lectures.

No tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

2. In his own rhetoric and argument, Dwyer continually emphasizes the human element of justice.

In today's world the word-based trial model is taken for granted. The courtroom puts even our most atrocious acts through the civilizing mill of evidence, analysis, and judgment.... Once the evidence is in, the judge or jury decides what happened, applies the law, and enters judgment. An impartial search for the truth, and a faithful application of the law to the facts, are at the heart of the practice.

We admire this method for its appeal to reason, its fairness, and its fidelity to what has gone before. But these virtues are far from the whole story.... A trial is a civic function, but it is more than that; it is also a ceremony, a ritual, and an exorcism.... [O]ur modern adversary system of justice, with its commitment to the truth, its logic and verbal trappings, its robed judges and elevated benches and incantations of "may it please the court," is a descendant of the ordeal, the magic contest, and the trial by battle. There is more to the law than syllogisms; to serve the living, the process must be filled with life.

Later in the text, Dwyer tells of a case he adjudicated, in which a man confined to prison was charged with six felonies for writing threatening letters to a drug dealer. The man confessed to writing the letters, saying that he was just foolishly blowing off steam, and the jury agreed that the man had been "overcharged" but was clearly guilty. Only the foreman refused to cast a guilty ballot, causing a mistrial that eventually led to a plea bargain with a greatly reduced sentence. From this example, and from a historical survey of classic nullification cases, Dwyer concludes:

Jury mercy has ranged from the noble to the humdrum to the disgraceful. But in the main it has served us well. By defeating unjust prosecutions, by defending the weak against overzealous officaldom, by fending off oppressive uses of the law, jurors have strengthened not just liberty but the rule of law itself--and they still do....

Jury mercy is not to be feared. It is one part of the discretion jurors must use in deciding an endless variety of questions.... Jurors make judgments, and they do so by using not just the law laid out for them by the judge, but their own sense of justice as well. In this way they keep the law legitimately attuned to community values.