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Friday, October 15, 2010

Only in SF: Vandalism Cases Fail Because Juries Don't Think Graffiti Is a Crime

Posted By and on Fri, Oct 15, 2010 at 10:59 AM

San Francisco law-enforcement authorities might be accused of a lack of zeal in combating some forms of crime, but graffiti is not among them. As we reported last year, our fair city spends about $3.7 million on efforts to clean up and prevent graffiti  -- almost twice as much as San Jose, a city 25 percent larger. The result, for the most part, has been a cleaner, shinier San Francisco. (Though not one free of the complaints of graffiti admirers who believe city officials are disrespecting a serious art form.)
click to enlarge graffiti2.jpg

But there's been a weak flank in San Francisco's graffiti offensive, and it can be found among those who have one of the most pivotal roles in the criminal justice system. That brings us to this week's celebration of our coastal metropolis' otherworldly quirks: Only in San Francisco do prosecutors have a hard time winning vandalism cases because they can't find jurors who believe that graffiti is a crime.

San Francisco Chronicle columnist C.W. Nevius first reported on this peculiarity of our criminal courts last year. When we later wrote about the exorbitant sums the city spends on graffiti abatement, Assistant District Attorney Paul Henderson -- who was charged with overseeing graffiti prosecutions -- told us the situation remained dire. At one point in 2009, Henderson said, he had to go through three pools of potential jurors during jury selection before finding anyone who would say they would be willing to deliver a conviction in a graffiti case.

"They said, 'This is a waste of my time, because I think trying someone for graffiti is stupid, and I'm not going to do it under any circumstances,'" according to Henderson.

Jurors, of course, have a long history of making unorthodox judgments about what constitutes innocence or guilt -- according to the legal tradition known as jury nullification, they sometimes even decide to defy laws they don't like. This phenomenon stops short of that -- nullification takes place when a verdict is delivered at the end of a trial, not during jury selection -- but it's in the same jurisprudential ballpark. 

In other times and places, juries have decided not to deliver convictions in assisted suicides or on charges that curtail a defendant's free speech. In San Francisco, they stand up for the rights of taggers. Lady Justice is supposed to be blind, but in our fair city, she sometimes enjoys a wall covered in spray paint.

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Peter Jamison


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