jury nullification

I have once again been summoned for jury duty. The summonses have been coming a little thick and fast recently, as two years ago I was called for superior court duty, last year for appellate court duty, and now once again for superior court. Although this seems a bit much, in actuality, in my whole life, I've only had to go down and be in a jury selection pool for one day, and though I was in the first group to be quizzed, I was quickly booted. So I can't say it's really been all that onerous.

Not my actual summons

Though I have my issues with trials in general, I am, if not happy to serve, then at least grudgingly willing. It seems to me to be just one of those citizen duties, like voting and paying taxes. But this time around, I have been getting quite a few completely unsolicited suggestions for how to get out of it. And no, I am not going to tell you what they are. But one person did mention that if I just said in the selection process that I believed in the right of jury nullification, no lawyer would want me around.

I knew vaguely about this concept, though I did not know its name, which frankly sounds a little creepy, like voter suppression or something like that. And it's usually been brought up in conversation by fairly extreme activist types, so it's sounded a little suspect and on the fringe of legal theory. But, in fact, it's not. 

Jury nullification is simply the process by which a jury votes to acquit a defendant, even though under the law, he or she is guilty. It is basically a vote against the validity of that law in those circumstances. It has been used to acquit people who were guilty of harboring slaves when the Fugitive Slave Law was still active, as well as letting people off of convictions during Prohibition. It has also been used to acquit perpetrators of hate crimes in communities that weren't unilaterally against such practices. So it's not any kind of magic bullet. But the option does tend to arise when law has somehow parted ways with the community it is supposed to serve. Whether it is ahead or behind the times is another question.

Convincing looking, but that doesn't make her right.

A curious aspect of the possibility of jury nullification is that the American public is not particularly well informed about it. If it was, a lot of people who are languishing in prison for small, non-violent drug violations would not have ever gone in, I bet. Our ignorance in this case has to do with the fact that the Supreme Court ruled as far back as 1895 that judges have no obligation to inform juries of this possibility. They have often tried to keep defense lawyers from telling juries about it as well.

Now, while all of this came up casually, it turns out to be timely as well. A Denver Post editorial appeared just a couple of days ago entitled "Jury Nullification is Not a Crime, Denver". It speaks of the recent arrest of two activists handing out literature on jury nullification outside of a Denver courthouse. But a civil rights attorney has filed a case on behalf of other activists who want to do the same thing unharassed. The article points out that a similar case was ultimately thrown out in New York, the judge saying that there would have to be proof of the pamphleteer trying to influence a particular case rather than just trying to educate people about a general principle.

Jury nullification isn't just some newfangled American thing. Its roots go back to English Common Law. And at Jurybox.org, quotes from Oliver Wendell Holmes and a good handful of the Founding Fathers come out in support of nullification. Here's Holmes:

"The jury has the power to bring a verdict in the teeth of both the law and the facts."

— Justice Oliver Wendell Holmes, Horning v. District of Columbia, 1920

And here's Jefferson:

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."
— Thomas Jefferson

So what am I going to do with my newfound knowledge? Well, here's Jurybox's advice:

"If I get selected for jury duty, should I disclose my knowledge of jury nullification to the attorneys or judge?

Only if asked. And if asked, do not lie about your knowledge. (This is a crime in and of itself.) Since knowing about jury nullification may get you excused from sitting on a jury, and the best place for informed jurors to be is on a jury rather than excused from it, the best answer to give is: "I have heard about jury nullification, but I'm not a lawyer, so I don't think I fully understand it. Maybe you could explain to me what it is?" This will typically result in either them dropping the issue entirely, or explaining it in full for other potential jurors to hear."

Yeah--that's my story and I'm sticking to it. 

curate

"True Humility": Bishop: "I'm afraid you've got a bad egg, Mr Jones"; Curate: "Oh, no, my Lord, I assure you that parts of it are excellent!"--George Dumaurier in Punch, 1895

Well, not that kind of curate. I'm thinking more along the lines of 'curated', which seems to have been popping into my awareness lately. Slow to catch on as usual, I see that Alex Williams of the New York Times was noticing the trend as far back as 2009, but then, that's New York for you.

I have known a curator or two in my time, and by that I mean people who worked for museums and on art exhibits in various capacities. I do not mean people as they are represented in the NYT article, as in food vendors who offer curated food stands, or secondhand clothing stores that offer curated collections of not just any old junk. Or so say they.

I liked what John McWhorter is quoted as saying in the article. He calls it "an innocent form of self-inflation. You’re implying that there is some similarity between what you do and what someone with an advanced degree who works at a museum does.”And linguist Geoffrey Nunberg says that it's hardly the first time a less credentialed profession took on the nomenclature of a more prestigious one. I liked the example he gives of "associates", which at one time meant partners or colleagues in some position of power but now can extend to any level of the work force including the salesclerks. I suspect in those cases that being an associate doesn't mean that you share in any kind of equal way in the profits.

Self aggrandizement, then, is both human and normal. But I find it interesting to be in a period when a word's new meaning hasn't quite become universally accepted, so that one person may be signalling "I am so in the know" while the listener may be thinking "You are so full of it." Still some people are just early adapters of new word usage. As with so many other newfangled things, I am not. So I think it will be a long time before you catch me saying that I curate anything.

Well, curator of ignorance, maybe. But I doubt that will go to my head.

Berber--sort of

I was planning to do a little post on the term "Berber" here tonight, after going to a concert at the Church Street Fair today, which is the free outdoor portion of the Cabrillo Music Festival going on these first couple of weeks of August. The Moroccan musicians that I made a point of seeing said that to their people, "Berber" is an offensive term, and that the people of that region would prefer to be called by their self-given name, the Amazigh people. And at first glance, internet searches lead you to see Berber as a form of that old Greek bar-bar, where we get barbarians, which made some sense.

But then I happened upon a blogpost that went into the whole issue much further than I can or would. It is by a blogger called Indiana Josh, who goes into different theories about where the word Berber really comes from, and though it's interesting, I knew I wasn't really in any position to weigh in on either side of the argument, or even do half as good a job of summing it all up, so I think I'm just going to give you the link to that post. Make of it what you will. I will say that it seems to be done with good will and not with any particular agenda.

Meanwhile, it's probably just good policy in general to ask people what they call themselves and what they'd like you to call them.

And while I'm at it, here's a website of AZA: Amazigh Music and Culture with a sample of Fattou and Mahomed's music, which better judges than I have deemed praiseworthy (and I agree). Also, you can watch a lot of it on Youtube if you just search for AZA music.

Mahomed and Fattou

Hobson's choice

This was just something that came up yesterday evening at our Finnegans Wake reading group. We came across the sentence "I've a hopesome's choice if I chouse of all the sinkts in the colandar." (page 432 at the bottom). Yes, the whole book goes on like that but don't worry, I'm not going to try and dissect it here. We seized "hopesome's choice" out of the stew and started talking about Hobson's choice and what it might mean here. We all had our own impressions of what Hobson's choice was and who Hobson might be, and we were all more or less wrong.

Our vague impression was that Hobson's choice meant having to choose between two or more bad options. I personally had the idea that Hobson might be a lesser known philosopher, probably because of the echoes of Hobbes in the name. (Turns out I'm not the only one.)

But no. Thomas Hobson wasn't Thomas Hobbes. He was a livery stable owner living near Cambridge (his lifespan from 1544-1631). Here are the famous editors of the Spectator, Addison and Steele, writing about him after his death:

Mr. Tobias Hobson, from whom we have the expression, was a very honourable man, for I shall ever call the man so who gets an estate honestly. Mr. Tobias Hobson was a carrier; and, being a man of great abilities and invention, and one that saw where there might good profit arise, though the duller men overlooked it, this ingenious man was the first in this island who let out hackney-horses. He lived in Cambridge; and, observing that the scholars rid hard, his manner was to keep a large stable of horses, with boots, bridles and whips, to furnish the gentlemen at once, without going from college to college to borrow, as they have done since the death of this worthy man.
I say, Mr. Hobson kept a stable of forty good cattle, always ready and fit for travelling; but, when a man came for a horse he was led into the stable, where there was great choice, but he obliged him to take the horse which stood next to the stable-door; so that every customer was alike well served according to his chance, and every horse ridden with the same justice: from whence it became a proverb, when what ought to be your election was forced upon you, to say Hobson's choice. This memorable man stands drawn in fresco at an inn he used in Bishopsgate-street, with an hundred pound bag under his arm, with this inscription upon the said bag:

"The fruitful mother of an hundred more."

Whatever tradesman will try the experiment, and begin the day after you publish this my discourse to treat his customers all alike, and all reasonably and honestly, I will ensure him the same success.

—"Hezekiah Thrift", The Spectator, 10 October 1712

So, though the term Hobson's choice has come down to us, when used correctly, as meaning a choice between one thing and nothing at all (i.e., "my way or the highway", "take it or leave it", "an offer you can't refuse"), in fact, Hobson had merely devised a system that was fair to his horses, his customers and, well, everybody.

As Wikipedia tells us, Hobson is remembered as a kind of miser for this practice. It's worth knowing, then, that he helped fund Hobson's Conduit, which brought fresh drinking water to Cambridge from springs at Nine Wells. He was only one of its supporters, but he endowed a trust for the conduit's maintenance. The conduit still exists today. So does this monument erected to him.

There was a play written in 1915 with Hobson's Choice as the title, which subsequently was turned into several movies, including one in 1954 directed by David Lean and starring Charles Laughton. The description sounds like King Lear, without the tragic downside.

But I think my favorite way that "Hobson's choice" has gone further into the language is that, according to Phrasefinder, cockney rhyming slang uses "Hobson's choice" as the slang for voice.

Often it's shortened to just "Hobson's."

acanthus

This isn't one of those, "What does that word mean?" kind of posts. It's a "What is that plant named?" kind of post. Normally, I am not all that intent on learning the names of plants. Lazy, I know. But a few weeks ago now, I was walking downtown on a street that I don't walk on that often, but have certainly walked on before. This time, for some reason, I was struck by a plant in someone's front yard. It had something to do with the low white fence in front and the plant being against the house, because this immediately took me back to our childhood house in Buena Park, where I lived in my early grade school years. I wouldn't have been able to tell you that these particular flowers grew in our front yard before that, but I knew it exactly when I saw them in this particular configuration. What are those crazy plants? I thought, as I wandered on.

Later that night when I got home I tried to use an online plant identifier or two to figure it out, but realized that I still hadn't remembered enough to put in a decently helpful description. I only knew that these kind of white spearlike flowers shot up from leaves at the base and I thought of them as being kind of 'prehistoric'. This is not the sort of description that a plant identification tool finds helpful.

Then a week or so ago, I saw some more of these plants elsewhere in town and was able to study them a little more closely. I saw that the leaves were giant green flat leaves at the base, and that the flowers were not so much spears as sort of long fronds, and that the flowers were more like small white bells under a green or dark hood.

So today, I remembered my quest again, plugged some more words into some other plant identifier and there it was. Acanthus. Acanthus Mollis to be more precise:

Photo by KENPEI

So yes, it looked like my search was at an end. But here's a funny thing. It turns out that this little plant which I remember from suburban L.A.has a deep and far-flung past. Although my mother probably called the plant by its rightful name, the real reason acanthus sounds familiar is because of its noble lineage--as the motif on ancient Greek  and Roman pillars.

Composite capital with acanthus leaves-- Ad Meskens

And it is embroiled in controversy. Some think that its fellow acanthus, acanthus spinosus, she of the spined leaves, is the main model for this ornamentation:

Acanthus spinosus--Magnus Manske

But the Austrian art historian Alois Riegl argues that it was not acanthus at all that started the trend. It was based on the image of a palmette, and only became more like an acanthus later. The mind reels.

Acanthus, it seems, has a trick of getting in everywhere. It soon climbed down off the pillars and found its way into other ornamentation. Here it is, mixed in with the palmette on Edward IV's jacket:

In the ornamentation of Belles Heures of Jean of France, Duke of Berry:

And even a British post box (leaves on top) made between 1866 and 1879:

photo, Andrew Dunn

And thank you, Wikipedia, for doing most of the hunting and gathering work here for me. More examples, including William Morris wallpaper, can be found at the bottom of that page.

planet--and remind me why Pluto isn't one again

I was at a party over the weekend and a bunch of us were sitting around afterwards and our most space oriented friend mentioned the news about upcoming proximity to Pluto via spacecraft.The rest of us fell into a chorus of lamentation for its exile from our planetary solar system and how we thought we might call it a planet anyway. She smiled politely and diplomatically at us and said, "Except that it isn't, you know." Apparently on beyond Pluto there are a bunch of other Plutolike satellites and at least one of them is even bigger than Pluto. In my mind, though, I wasn't clear on why we wouldn't just include them in rather than exclude the one we know. True it would be harder to do the styrofoam planet projects of my youth, but kids have computers now, people!

Anyway. What is a planet? If we start with the  etymology, it isn't exactly clarifying. According to the Online Etymology Dictionary, The Old English was planete, going back through the Old French of the same spelling through Late Latin planeta to the Greek planetes, which was actually a kind of condensation of astares planetai, or wandering stars, planasthai meaning 'to wander'. This was to distinguish them from the "fixed" stars, because they appear to move and the actual stars don't. For this reason, the sun and moon were also called planets. The "modern scientific sense of "world that orbits a star" is from 1630s."

None of this would seem to leave Pluto out.

As NASA's own Mission Science site points out: "Technically, there was never a scientific definition of the term Planet before 2006." Evolving technology allowed scientist to see further out and in 1991, they discovered that beyond Pluto, there was a disc shaped cloud of objects, which they named the Kuiper Belt. Gerard Kuiper was an astronomer who mentioned some objects out there beyond Pluto in 1951, but according to this pretty contrarian article, he kind of got it wrong. Anyway, the problem with the Kuiper Belt wasthat it had a lot of objects in it and at least one was bigger than Pluto. What to do?

Oddly enough, it strikes me as a little bit like Fox News's decision about the Republican debates. If you don't know, the Republican field is currently at fifteen candidates, but Fox has decided that the top ten in recent polls will be the only ones invited to the first debate. Astronomers similarly have decided that including every object in the Kuiper belt as a possible planet would be too much information to deal with. I don't really see why. I'd assume that since we didn't really know what all was there for the rest of human history, we could maybe take a leisurely approach to learning about it.

The (very) new definition of a planet is:

1.) It must orbit around the sun.

2.) It must be big enough for gravity to squash into a round ball.

3.) It must be big enough to clear other objects (like asteroids) from its neighborhood, either by sucking them in or hurling them off into space.

But of course, as the NASA article goes on to say, "Define neighborhood." In any case, it's requirement three where Pluto is getting the demerit points.

Frankly, I don't put a lot of stock in things that were just defined in 2006. It seems kind of likely to, uh, change. But all right. What is the new term for a Pluto like space object?

A dwarf planet.

Oh, come on. If you said someone wasn't a human being but a dwarf human being as if that was a meaningful difference, you would get sued. And rightly so.

Pluto is also called a "plutoid", which is defined as any dwarf planet that is farther out in space than Neptune. So far, there are three known ones. Pluto, the larger Eris that started this whole mess, and Makemake. I hope we get to know them too.

Judging from the response to our nearing Pluto, rendering it a non-planet hasn't lessened the thrill.

The New Horizons team     NASA/Bill Ingalls

But as someone wiser than we are has already told us, size isn't the only way to talk about a planet we love, even if that planet is "only" an asteroid.

And the winner is...

I was talking to a friend last night and the conversation suddenly led me to remember that the winning M.O. story was up at Criminal Element and I said I would post a  link here. So I got over there and read it this morning and liked it. It's a very different sort of story than the one I wrote, and, I suspect, than the other candidates. Here, forthwith, is "The Cocoon", by Louis Racovich. Congratulations, Louis.

I assume it's purely coincidence, but I got something of a consolation prize from Criminal Element the other day, in that I won a copy of Charlie Martz and Other Stories, which is a collection of the unpublished short stories of Elmore Leonard. When you consider that the entire television series of Justified came out of one Elmore Leonard story, you may agree that a Leonard story is no slight thing. So I'm looking forward to the book's arrival.

Regular service will resume shortly.