- The Washington Times - Thursday, May 24, 2001

'Wait and see' Korea policy won't serve U.S. interests

While Nick Eberstadt and Richard J. Ellings appropriately discuss expectations of change, "coping with dramatic change," and cooperating with other Pacific powers in responding to change on the Korean Peninsula, they neglect to cite the need for a pro-active diplomatic approach designed to induce change in the region ("The next hot spot," Op-Ed, May 23). The Bush administrations slow start in addressing the already considerable changes the Clinton team helped provoke at the end of its term is an unfortunate harbinger of a policy that is decidedly more "wait and see."
In the meantime, North Koreas Kim Jong-il has begun the slow process of reuniting with the South and opening his country up to the manifold external influences that will accompany the re-establishment of diplomatic relations with the European Union. Unfortunately, without a process for dialogue with the North, the United States has so far guaranteed that any influence it might seek to exert will be only marginal. Recognizing North Koreas rightful seat among the community of nations, and working with them to engineer a soft change for that country, will help take the "reaction" out of U.S. foreign policy and make for an international system more in agreement with U.S. goals and interests.

EDWARD J. VON KLOBERG III
Washington

Edward J. Von Kloberg III Is the chairman of Washington World Group, an international public relations and lobbying firm, having represented more than 80 foreign governments around the world.

Transportation for the masses

Before we decry the dismal performance of mass transit, lets take a hard look at the measuring stick columnist Wendell Cox is using ("Mass confusion over mass transit," Commentary, May 19). According to Mr. Cox, 2 percent of all trips in the United States are served by transit. But just a minute; according to the American Housing Survey, less than 55 percent of households even have access to public transit. The more accurate yardstick is one used by noted conservative Paul M. Weyrich for "transit competitive trips." It turns out that when quality transit goes head to head with driving, transit does pretty well. From the Washington area, where a quarter of work trips are made on transit, to the St. Louis area, where 20 to 25 percent of football fans get to Rams games by train or bus, transit works. All the national statistic proves is that in many places our transportation system doesnt offer people any choice.

Mr. Cox also complains that public transportation isn´t helping solve our congestion crisis. Yet without transit, traffic certainly would be worse. If every train rider or bus rider stopped using transit and switched to a private vehicle to commute to work, even assuming some of those people carpooled, an additional 5.4 million cars would have to share the road.

The recent growth in ridership goes far beyond New York City: Transit service is soaring everywhere, from Salt Lake City to Dallas. Instead of dismissing the increase as just a temporary blip, we should be paying attention to the fact that Americans are choosing transit and doing our best to support and encourage that choice.


MICHELLE GARLAND

Campaign analyst

Surface Transportation Policy Project

Washington

Juries hold power to nullify unjust laws

In your otherwise excellent report on the "Simpson test" — prosecutors asking prospective jurors their opinion of the O.J. Simpson verdict to smoke out those who may "nullify" the law by acquitting "guilty" suspects — you do jury nullification a disservice in describing it as "extralegal" ("'Simpson test OK in Texas," May 21).

In fact, the power of juries to judge and to nullify unjust laws or to consider special circumstances is a well-established common-law protection that predates our Constitution. Historically, it has been an important restraint on the abuse of power. The 1735 refusal of a New York jury to convict publisher John Peter Zenger of seditious libel is well-known to journalists, and many Northern juries simply refused to enforce the Fugitive Slave Acts before the Civil War. More recently, some juries have declined to convict nonviolent defendants to long mandatory prison terms for minor drug offenses.

Moreover, federal courts "recognize … the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence" [U.S. vs. Moylan, 417 F.2d 1002, 1006 (4th Circuit 1969)] and affirm the jury´s "unreviewable and irreversible power …to acquit in disregard of the instructions on the law given by the trial judge." (U.S. vs. Dougherty, 473 F.2d 1113, 1139 (D.C. Circuit 1972)). In short, juries may legally acquit for any reason, or for no reason.

In addition, four state constitutions explicitly recognize the power of jury nullification in all criminal cases, including my own state of Maryland, which provides that "n the trial of all criminal cases, the Jury shall be Judges of Law, as well as of fact" (Declaration of Rights, Article 3). Of the three states mentioned in the article in which the Simpson test has been held not to constitute racial discrimination, Georgia´s constitution also provides that "(i)n criminal cases t …he jury shall be the judges of the law and the facts" (Article I, Section I, Paragraph XI, clause (a)).

The other two states are among the 20 whose constitutions place judging the law under freedom of the press or libel — Zenger´s legacy echoing down the centuries. Alabama´s constitution explicitly lists nullification for libel (Article I, Section 12), and Texas does the same, then adds "as in other cases" (Article 1, Section 8). But whether codified in the state constitution or not, nullification remains a part of common law.

There is no particular reason to believe that the O.J. Simpson verdict involved jury nullification. It is more likely that the defense was able to raise sufficient reasonable doubt in the minds of jurors about the "chain-of-custody" failure to use taggants (chemical markers) in the blood sample obtained from Mr. Simpson, along with allegations of serious misconduct by Detective Mark Fuhrman.

As might be expected, prosecutors generally dislike the two-edged sword of jury nullification, which certainly can be abused as well as used wisely. Jurors rarely are told of their power to judge and nullify the law, even when it is enumerated in the state constitution, and often are inaccurately informed that "the judge judges the law, and the jury judges the facts." State statutes should require that juries be properly informed of their power in appropriate cases.

In any case, the long and distinguished history of jury nullification continues to be an important protection against governmental tyranny, and the power of juries to judge the law remains society´s ultimate defense against unjust law and prosecutorial excess.


DOUGLAS E. MCNEIL

Baltimore


The writer is secretary of the Baltimore City Libertarian Party.

Como se llama 'chad'?

If it is true that more than 30 percent of Perus voters intend to cast spoiled or blank ballots in the upcoming election, perhaps Democrat Party operatives will volunteer to help in the count ("Candidates attack in only debate," World Scene, May 21). After all, no one has more experience divining the intent of voters than last elections Democrats. In Florida, Democrats used their impressive psychic powers to count hanging chads, dimpled chads and pregnant chads in deciding what voters had intended to do. How do you say "chad" in Spanish? How about "election fraud"?

JAMES TERPENING
Washington


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