#this is one of those things like jury nullification that nobody knows about but should

[gottalottarocks]

Are you an American? Frustrated by the political process? Do you feel like you have no voice in our government? Let me introduce you to the wonderful world of public comments. 

This is where federal agencies propose new regulations asking for public feedback:

Regulations.gov

Here's a step by step on how to navigate this:

Look through the proposals on the explore tab and filter by "Proposed Rule". These are the regulations that have been proposed, but not finalized. 

If you click on these, they are pretty dense, text heavy explanations of the proposed rule changes. I definitely do a lot of googling when trying to understand what I'm reading. Also there are a lot of different topics here and I definitely don't comment on everything.

This is how you make a public comment. For example, for this proposed rule:

Start a new document and write the subject and docket number. Your comment NEEDS to have the docket number for them to count it most of the time, and the correct subject some of the time.

^^ this is ambiguous, but add the docket ID and subject just to be safe, it should look like this:

Ref: Docket ID No. NSD 104

Provisions Pertaining to Preventing Access to Americans' Bulk Sensitive Personal Data and U.S. Government-Related Data by Countries of Concern

Then address to the person at the very very end of the page. 

Scroll all the way to the end:

^^this is the person you address to. 

Then introduce yourself. If you have experience related to the proposed rule, talk about that. For rules related to the environment and public health I say that I'm a geologist with a master's degree and I work in environmental remediation. Otherwise, I just say I'm a concerned citizen. 

Then I say hey I agree/ disagree with this proposed rule and here's why. Oftentimes there will be lists that the federal agency is asking for specific feedback on.

Commenting on these will have a lot of impact. 

Here's an example comment I forgot to post for a rule regarding methane emissions in the oil and gas industry:

Administrator Michael Regan The United States Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Ref: Docket ID No. __ Waste Emissions Charge for Petroleum and Natural Gas Systems Dear Administrator Regan, My name is __ and I am writing to you as a geologist and graduate of ___.  I currently work in ____. Thank you for your interest in reducing methane pollution, which I believe to be one of the most important aspects in reducing the harm caused by the climate crisis. Within the short term, methane is a much more powerful force of global warming than carbon dioxide. It breaks down faster than carbon dioxide— but it traps significantly more heat that should be bouncing back into space. When scientists talk about taking our foot off the gas pedal in regards to the climate crisis, methane is at the forefront of our minds. Natural gas is often proposed as a solution to reducing our greenhouse gas emissions (since it produces less carbon dioxide than coal plants), but these methane leaks are a serious threat to public health. Not only is methane hazardous, it’s ability to cause short-term superheating is contributing to the rapid increase in wildfires within the U.S. and globally, further degrading air quality. Last summer in NYC skies were orange, caused by ash from Canadian wildfires. As someone who sets up air monitoring equipment every day to ensure the surrounding community is not impacted from the disposal of hazardous waste, I have a unique opportunity to see on a day-to-day basis how air quality is degrading. I strongly support the Environmental Protection Agency's proposed waste emissions charge. For EPA’s implementation of the fee to fulfill Congress’s goals, the final regulation must continue to include key requirements including: ·       Regulatory compliance exemptions must only become available after final standards and plans are in effect in all states and that these plans are at least as strong as the EPA's 202 methane emissions proposal. Operators filing for exemption must also demonstrate full compliance across their facilities; ·       Strong and clear criteria must remain in place for operators seeking an exemption based on unreasonable permitting delays; ·       When operators seek an exemption for plugged wells, they must clearly demonstrate that their wells have been properly plugged and are no longer polluting; ·       Transparent calculations and methodologies to accurately determine an owner or operator’s net emissions; and ·       Strong verification protocols so that fee obligations accurately reflect reported emissions and that exemptions are only available once the conditions Congress set forth are met. I urge the EPA to quickly finalize this proposal with limited flaring, strengthened emissions standards for storage tanks, and a pathway for enhanced community monitoring. Thank you, ___________

And then paste your comment in or upload a document and submit! You will be asked to provide your name and address. Also the FCC will only take comments on their website, but the proposed rule will be posted on the federal regulations website I put above and they should have a link to the FCC website within that post. 

[whereareroo]

JURY NULLIFICATION

WF THOUGHTS (1/16/21).

Have you ever heard of the legal topic called "jury nullification"? That's my topic for today.

Stick with me. First, I'll explain a bit about jury nullification. Then, even though nobody else is talking about it, I'll explain why it's a very, very relevant topic right now.

We all know what a jury is. Today, I want to focus on jury verdicts in criminal cases that are brought in federal courts. Pursuant to the Sixth Amendment to the U.S. Constitution, a unanimous verdict is required for a conviction in a criminal case.

Let's spend thirty seconds on the "unanimous" requirement. If a single juror votes to acquit, there cannot be a conviction. That may seem unfair, or illogical, but that's how our system works. The purpose of the "unanimous" requirement is to protect against wrongful convictions. Got it? A single juror has enormous power.

Let me give you another fact that significantly increases the power of every juror. A juror doesn't need a reason to vote against conviction. A juror has no obligation to explain his or her vote. Unless the juror is somehow wrongfully tainted during the trial (by bribery, blackmail, corruption, or failure to follow sequestration rules), a juror can follow their conscience and vote however they wish. Jurors are supposed to follow the law, but there is no way to stop jurors from considering other "real life" issues.

There's a final factor that amplifies the power of a single juror. If a defendant is acquitted, because one or more jurors oppose conviction, the defendant cannot be tried a second time for the same crime. The prosecution doesn't get to "try again" in front of a different jury. If a juror blocks a conviction, the case is over and the defendant walks free.

In movies and on television, we've all seen depictions of jury selection? What are the lawyers doing? The prosecutor, in addition to weeding out jurors with biases that might run in favor of the defendant, is trying pick jurors who will exclusively follow the law. The defense lawyer, in addition to weeding out jurors with biases that might run in favor of law enforcement and the prosecution, is trying to pick jurors who might ignore the law and focus on other factors. Many trials are won, or lost, during jury selection. It's an interesting game.

Are you starting to see where this is going? "Jury nullification" occurs when a juror, or a group of jurors, blocks a conviction for reasons that aren't set forth in the law. Maybe the juror disagrees with the law. Maybe the juror thinks the prosecutor has been too tough on the defendant. Maybe the juror thinks that the probable prison sentence is too long under all of the circumstances. It doesn't matter why the juror votes against a conviction. Without a unanimous jury there cannot be a conviction.

In America, there's a long history of jury nullification. A few examples will give you a better understanding of the topic:

▪In the Slavery Era, it was against the law to harbor a runaway slave. In the North, despite irrefutable proof that the law had been violated, many juries refused to convict defendants who harbored runaway slaves.

▪During the Prohibition Era, juries routinely ignored the law and refused to convict barkeepers who were flagrantly violating the alcohol control laws.

▪During the Vietnam War Era, it was illegal for young men to evade the draft or to ignore mandatory military service. The Vietnam War was very unpopular. Most jurors knew somebody, perhaps a family member, who was evading the draft. Juries routinely ignored the law and failed to convict young men who refused to participate in that terrible war.

Today, 10 days after the siege on the Capitol, I was thinking about jury nullification. For the past week, federal law enforcement officials have been saying that the terrorists will be brought to trial and convicted. Sadly, because of jury nullification, I'm not so sure.

Recent opinion polls say that 35% of Americans believe that the 2020 election was "stolen" from Trump. Many of those people think it was appropriate for Trump supporters to occupy the Capitol in an attempt to block Biden's confirmation. After all, that's what Trump told them to do. I'm not saying that 35% of America approves of the violence that occurred, but they do sympathize with the underlying beliefs of the terrorists. People from that 35% of the population will sit on the juries that hear the trials of the terrorists. Will they vote to convict, or will their sympathies for the defendants motivate them to vote against conviction? I'm not confident. Remember, one renegade juror can stop a conviction.

The location of these trials will be crucial. Most, if not all, of the cases will originally be filed in Washington D.C. In the 2020 election, 94% of the Washington voters cast their ballot for Biden. If the trials actually occur in Washington, the odds of jury nullification are low.

I think there is a risk that the trials will be relocated out of Washington. The defendants will claim that the jury pool is stacked against them because it's 94% Democrat. The defendants will claim that they cannot get a fair trial in Washington because of the extensive media coverage that has occurred on the local media. The defendants will claim that the jury pool is full of people who either work at the Capitol Complex or who know people that work at the Capitol Complex. The federal prosecutors may have a difficult time overcoming these objections. After all, the defendants are entitled to a fair trial before a fair jury.

If the cases are moved out of Washington, it's not clear where they will be sent. Virginia, where Trump got 44% of the vote, is nearby. So is Maryland, where Trump got 33% of the vote. If the cases are sent to either of those states, jury nullification becomes more likely.

It's possible that the defendants will convince the court that their trials should be in their "home" states. Many of the terrorists came from places like Alabama, Arkansas, Florida, Louisiana, Mississippi, North Carolina, Ohio, South Carolina, and West Virginia. Trump won at least 50% of the vote in those states. Would jurors in those states vote to convict, or would we see massive jury nullification? Remember, a single juror can block a conviction.

If I was a defense lawyer for one of the terrorists, I wouldn't be doing any plea bargaining right now unless we were talking about a quick plea for a minor misdemeanor. I'd be waiting to see if we can get the case moved to a location that is more favorable than Washington D.C. If I can get the case out of Washington and I'm facing a serious charge, the chances of jury nullification go up and the chances of a conviction go down. If I could get the case moved out of Washington, I'd automatically have more leverage in plea negotiations and I'd be far less fearful of a trial. My client might become the beneficiary of jury nullification. I'd have to educate the client about jury nullification and let the client make the decision between a trial or a deal. I suspect that many of these defendants, believing that they have comrades in the jury pool, will take their chance and hope for jury nullification.

Let me make a few things perfectly clear. I don't want the terrorists to be saved by jury nullification. I hope they all rot in jail. I realize, however, that jury nullification exists in the world. Given the very strong beliefs of the pro-Trump forces, these cases might be jury nullification "magnets." The federal law enforcement officials should stop sounding so confident about convictions in these cases. It will be a long process and, unfortunately, they need to be worried about jury nullification. Sometimes jury nullification is very moral. Sometimes it's totally wrong. I'm worried about what might happen here. For better or for worse, our system fails or succeeds based upon the whims of individual jurors.

[politicaltheatre]

Jury Nullification

“I understand that you have your question. I have my answer.”

That was White House adviser and speechwriter Stephen Miller way, way back on September 29th, not answering a question despite repeated attempts by a Fox News anchor to get him to.

Yes, you read that right. No, the right-wing safe space that has been Fox News isn't turning on the bullying bullshit artists that made it what it is today. You see, while Chris Wallace is a Fox News anchor, he was asking the question on Fox News Sunday, which airs not on cable TV's Fox News Channel but its broadcast sibling, the one with entertainment shows and NFL football.

Wallace's Sunday morning show competes with the major broadcast networks' own Sunday morning political coverage and, notably, is one that is watched not by Fox News' primary demographics but by "more serious" viewers, ones who expect a serious question or two.

Wallace's position within the Fox News family, much like that of recently departed Fox News Channel daytime anchor Shepard Smith, has long been to offer a sense of the "fair and balanced" journalism the network has always promised and too often lacked. Doing so provided cover to self-proclaimed "entertainers" such as Sean Hannity, who began his Fox News career with his own "balancing" co-host, Alan Colmes, an arrangement that lasted exactly until the 2008 election of Barack Obama, at which point Hannity and the network no longer felt the need to pretend they weren't just pushing an aggressively right wing agenda.

Which brings us back to Stephen Miller, his boss, and that very important non answer. The serious question Wallace asked Miller was about Donald Trump’s July phone call to the president of Ukraine and how its content could have broken any number of laws and lead to Trump’s impeachment.  

It may feel like old news now, but this was a mere five weeks ago, only a few days after news of the phone call broke. This was the day the more ridiculous of the non-denial denials started, before the closed-door testimony by Trump appointees and career diplomats, and before Congressional Republicans began a series of stunts intended to distract from serious questions being asked or answered by anyone.

The question Wallace asked truly was a serious one, seeking serious answers on a very serious subject, and that Wallace insisted on following it up speaks well of him. The thing is, he never stood a chance and maybe he knew that. Really, having seen Stephen Miller in action even once he should have, so maybe Wallace was hoping for the confrontation he got.

Unfortunately for Wallace, he didn't seem to anticipate just how little Miller cared about what he was asking. Had Wallace's question been about anything, Miller's scripted, targeted non answer would have been the same. That‘s the point, and that, to a point, was Miller’s point.

Fortunately for us, at least regarding TV appearances, Miller is incredibly arrogant, and typical of arrogant political flacks trying to do damage control, Miller's non answer revealed far more than he intended.

What Miller wanted the audience to understand - the audience, not the anchor, who like the camera and the broadcast license is merely a means to an end - was that not only did he not have to answer that question, he didn't have to answer any question. Ever.

Questions, he wants us all to accept, don't matter. Questions and questioning are wrong. They are weak. They do not deserve our respect. And those asking don't either. This, for him, was far more important than anything else he had come there to say. This was the message.

Of course, that's always his message. What Miller has to say - what he always has to say - is that he does not have to be accountable to others, that rules do not apply to him, and that if you support him and/or the man he chooses to serve, then they don’t have to apply to you.

This is, of course, the promise of all right wing demagogues. To hear it from Trump or one of his minions in any context shouldn't surprise us; they've been promising it since before he even began his campaign in 2015. The Republican Party in its rightward trajectory has been doing it even longer, spending the past half century, with the help of media outlets such as Fox News, pushing the country away from the rule of law and towards the rule of laws you like.

It is corruption in every sense. It is the normalization of cheating, of dismissing wrongdoing because it gets in the way of profit, and of belittling those wronged because they were too weak to stop it. It is muddying the waters and lowering expectations. It is a race to the bottom. It is poison, and at its end is the destruction of the bonds that hold a society together.

And, oh, how Donald Trump and those about to face charges with him - both impeachment and criminal - want you to embrace that.

If we're being honest, we already have to some extent. This isn't something foreign to us. Few of us truly want to have to be accountable. We want what we want with no consequences. Whatever is was, we want to get away with it. We want our power, and in little, petty ways we take it.

Just look at the NFL, the jewel in Fox Sports' broadcasting crown. More to the point, look at the state of NFL officiating. There has always been a conflict between coaches and players on one side and those making them follow the rules on the other. That's only natural. As long as there's balance and the rules seem to apply equally, nobody likes it but they accept it as a fair system.

Of course, the rules don't apply equally, or never seem to. Name a team in any sport and you'll find a fan base convinced that some game, maybe even a championship, was taken from them by a suspiciously bad call. Do star players get special treatment, do they get away with what less marketable players can't? It could just be perception, but try explaining that to the fan or player on the losing side.

When there is an obviously bad call - and how could there not be? Officiating is a very difficult job - everybody on the wrong side of it complains. They may have benefitted from another, equally bad call earlier in the game - lookin' at you, New Orleans Saints - but that doesn't matter. They were robbed, it was unfair, and they want justice.

So, following that one bad call against the Saints, the NFL did what organizations both public and private have done since officiating began, they added a new pass interference rule that allows those being judged to question and reverse the judgments made against them. Not only that, if judgment should have been made against somebody else and wasn't, the wronged party now gets to challenge that, too.

Great, right? No? Of course, not. You can only imagine how NFL officials felt about the new rule, the one ruling them, and you can clearly imagine how they have responded. Through the NFL preseason and the first half of the regular season, challenge after obvious challenge has been rejected.

The officials have to know they were wrong. A small child ignorant of the rules could tell they were wrong on some of those calls and non calls. Again: not the point.

The officials know the calls and non calls were bad. They know that by reinforcing them they are ruining coaches', players', and fans' ability to trust that the game is fair and balanced - a level playing field - and with it the ability to trust the result.

But you know what? The officials just don't like that new rule. They really don't like the idea that they now have to be more accountable to people over whom they have power. It makes them look and feel less than they want to see themselves. And they're letting us all know.

It's not like they'll face any kind of consequences for this. They know the NFL hates controversy, and they know the players and coaches don't want to piss off a group of people who still hold power over them on countless other judgments.

So, as the season has gone on, fewer and fewer pass interference challenges have been made. By the time they reach the playoffs, where this all started last year, it's likely none will be made at all. This "experiment", as all failed rule changes are called, will be changed again next off season or, more likely, dropped altogether, swept under the rug and forgotten like so many others.

The lesson learned here, sadly, is that rules don't have to apply if you don't like them, and that if you have enough leverage, enough power, rules you don't like have no power.

Which, again, brings us back to Stephen Miller, his boss, Fox News, and congressional Republicans, and the point they're all trying make about questions and the many groups about to pass judgment on them and the world they're trying to hold onto.

Those groups, in order, are the House, the Senate, the Supreme Court, and, in 2020, the American voting public. What Trump and his surrogates are signaling to their dedicated, emotionally invested 2020 base is that nothing Trump or those with him have done violates rules - or as the government calls them, laws - that matter.

That's the pitch. That's the entire campaign. We see it in the phrases they choose to repeat, such as “nothing burger”, a favorite. By reducing corruption’s importance to the point of giving that unimportance a pet name, they seek to normalize it.

A world of normalized corruption is this: The ends always justify the means; If somebody asks you a question, you can give whatever answer serves your needs; They're wrong, you're right; You have the power, they don't; You are the rules, you are the team; You are a constituency of one living in and perhaps running a kleptocracy.

In this world, the notion of equal protection and justice on which any community is based is missing. When a culture believes that a system is unfair, they are more likely to cheat. If they believe that cheaters are getting away with it, they are likely to cheat even more. All of this benefits those already cheating, those who have been benefitting from the imbalance of power. It gives them cover to expand their corruption and to profit even more.

Again, this is a world we already see. We see it all the time in courts of law. In communities that trust the police, accusations of wrongdoing by them are rejected without question. In communities that don't trust police, evidence of criminal acts by defendants are similarly rejected.

We must recognize that these accusations and evidence are not ignored. They are seen, they are understood to be what they are, and a rationale is given for looking the other way. This is short term, transactional thinking, driven not by reason but by emotion.

One of the most famous examples of this behavior, what in a courtroom we would call "jury nullification", was the verdict in the murder trial of O.J. Simpson. Cases continue to be made for and against his guilt, but, as the 2016 ESPN documentary series showed, to some members of the jury his actual guilt or innocence had nothing to do with their votes.

Their anger and mistrust of the Los Angeles Police Department were so deep and so bitter that they never gave the prosecutors or the evidence an even chance. To get back at the people they blamed for decades of abuse and for the imbalance of power that kept defining their lives, they were going to vote "Not Guilty" no matter what he did. For them, that would offer some sense of balance, not much and not for long but enough to make them feel good while they were doing it.

Simpson's lawyers understood this as clearly as the prosecutors did not, and they played to it. They wanted an emotional verdict, ignoring the logical, rational case the prosecutors were laying out, and that was exactly what they got.

It was a cruel irony, then, in 2016 that another team looked to game another system using that same strategy. Play to the anger and mistrust. Cultivate it and help it to grow. Attack the process and attack the messengers. Encourage emotional decision making and transactional thinking - I may hate what he has done, but this will get me the satisfaction I think I want - and let the other side make the mistake of thinking logic and rational explanations will find their way through and lead to victory.

Seriously, anyone watching "O.J.: Made In America" should have seen what was coming. Donald Trump, with not a little help from Steve Bannon and internet-borne short term thinking, got everyone who voted for him to think of themselves and their fears and their anger and what they wanted over what they actually needed.

What Trump succeeded in doing, what he has succeeded in doing his whole life, was to get all of them to excuse his violations of laws and of other human beings as acceptable behavior, a cost of doing business, something to be recognized and ignored as long as they get what they wanted. Maybe they wouldn't get the justice or payback they wanted or deserved, but they'd get something. Donald Trump ran on a reprehensible platform of corruption as virtue and won.

And that's what he's hoping to do now.

Go back and look at everything he's said and done regarding impeachment since he was sworn in. He hasn't made a rational, logical defense, as so many in the press keep insisting on framing it. He's done exactly the opposite, appealing to irrational, illogical emotions.

Does it appear that he's spouting nonsense? Is he telling obvious, stupid lies? Yes and yes, but he doesn't have to been proven right about any of it. He's muddying the waters. He's creating doubt. He is tainting the jury pool.

And on top of it all, he's attacking process, not the process, mind you, the process of impeachment, but process itself as a function of government.

The idea that any question asked is an affront to patriotism is ludicrous, and yet time and time again he and his minions and their allies in Congress and elsewhere have attacked those asking questions and those suggesting that questions need to be asked.

The substance of the questions is rarely mentioned, let alone attacked, but the people asking are. They're belittled, made fun of, given nicknames, and bullied. Again, to a rational mind this seems counter-productive, but it is only if a rational, reasoned defense is what they have in mind. It isn't.

Take a look at what Trump's allies in Congress have done in the past five weeks to cloud the impeachment investigation. In the House, clearly hypocritical attacks by Republicans on the politicized nature of any inquiry have been going on since Trump was sworn in; now, they're are staging pantomime tantrums about access to closed door testimony, accusations easily dismissed and ridiculed as false and even stupid.

They had to know they would be, so why make them? Simple: as Trump shows us on a daily basis, an accusation made is not easily forgotten. When they cast their votes on Thursday not to formalize the impeachment inquiry, they did so on grounds that Democrats have an "illegitimate" agenda. When they go on to vote to reject charges they know are coming that cannot be refuted, they hope it gives them and Republicans in the Senate cover with their 2020 electoral base.

And what have those Republicans in the Senate been doing? Well, they’ve tried to make the case that what Trump did doesn’t rise to a “high crime”. They’ve also passed a watered-down, non-binding resolution that they will not convict Trump if and when he is impeached. Evidence be damned. Without Republican support the Democrats cannot hope to convict, so this would seem to put an end to it. But, no, it doesn't.

As sure as Trump will be impeached, a non-binding resolution is non-binding. If something comes out that cannot be excused - it would have to be something politically horrific, something Republican voters couldn't choose to ignore - Republican senators who swore to the resolution could still vote to convict if they thought they needed to. Because, well, 2020.

And that really what they're all playing for: power. Trump may be terrified of prosecution - actual prosecution - but even if he were to win next year he could only hope to avoid it for another four. At best. If Republican senators voting to reject clear evidence of guilt have read their base and their opposition wrong, they stand to lose six seats or more and with them control of Senate.

Selfishly, those six or more senators who stand to lose could turn on Trump and vote to impeach, but they would do so knowing that even with their votes the Senate would still not convict and that still could cost them their seats. What the resolution does, then, is lay yet more emotional support for their base to accept corruption and vote for them anyway.

So, if it seems strange that people serving in government and passing laws seek to delegitimize government and the rule of law, it shouldn’t. The point of their attacks against government oversight isn’t to delegitimize all government and all laws, just to establish that we can pick and choose which of them we want. The part that makes us and our friends rich, that allows us to harm others with impunity, that's the part they want to keep.

So, no, Stephen Miller and his boss and their surrogates and their friends don't want us asking questions. They want us to believe that questions don't matter. Only the answers should, and then really only the answers we want to hear.

Hearing only what we want to hear and seeing only what we want to see gives us the emotional justification for looking the other way. Nobody's cheating if everybody is. Nobody's guilty if we're all on board. It feels good, and we want to feel good. That's why we like them. That's why they can win.

As the late, great Richard Pryor once asked, “Who you gonna believe, me or your own lying eyes?”

- Daniel Ward