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October 18, 2006
Judge -- Rather Than Jury -- Nullification?
Federal district judge William Downes, who sits in Casper, WY, recently dismissed the charge (pdf file), concluding that the licensing process operates in such a "biased and protracted" way that it is not the "least restrictive means" of protecting Native American religious freedom under the Religious Freedom Restoration Act.
It's a kind of judge-nullification: the defendant was plainly guilty under the regulations (which the defendant neither knew about nor followed), but the judge dismissed the charge anyway.
It's interesting that the judge dismissed the charge rather than trying the defendant and acquitting him. Had he done the latter, the acquittal would have been unappealable, and the case would have just gone away. By dismissing the charge, Judge Downes sets up an interesting appeal to the Tenth Circuit -- and focuses public attention on the inadequacies of the licensing process. A shrewd move on Judge Downes's part -- reminiscent of a very similar move that a judge made 60 years ago to try to focus public attention on the morality of drafting Japanese American internees into the U.S. Army from behind barbed wire.
Posted by Eric at October 18, 2006 9:43 AM