Sidewalk Chalk, legal or illegal?

Not guilty was the verdict for Mr. Olson, a San Diego man accused of violating California's vandalism statute by writing anti-bank messages on the sidewalk in front of a North Park Bank of America.

I was called to jury duty recently, and during jury selection someone on the hot seat said he believed that juries have the ability to decide questions of law, but agreed to not do so for a simple DUI case.  Predictably, he was excused.  I immediately thought this guy was a joker, but maybe he had a point.

In the case against Mr. Olson, the City argued that sidewalk chalk, although washable, was still a violation of the state vandalism statute. “The People do not fear that this reading of section 594(a) will make criminals of every child using chalk," said Deputy San Diego City Attorney Hazard in justifying the prosecution.  The statute makes it illegal to "maliciously . . . deface[] with graffiti or other inscribed material," someone else's property.  The legislature added the terms "graffiti or other inscribed material" after a federal court decision held that Berkeley, CA man did not "damage" property, nor did he use liquid paint on the property when he wrote on a sidewalk with chalk.  Interestingly, other city attorneys rely upon the view that the statue does not require permanence, citing a case (In re Nicholas Y., 85 Cal. App. 4th 941 (2000)) in which writing on a window with a permanent marker was held to be vandalism even though it was easily cleaned.  Tenuously then, writing in chalk must constitute "inscribing" under state law and that kids get away with it by not inscribing with malice, however incompatible with the dictionary definition of inscription being a "lasting record."  Although I could make an argument that the Nicholas Y. case is distinguishable because it absolutely required human effort to remove the ink from the window, whereas sidewalk chalk does not require any human labor to remove it from the ground, it appears the San Diego trial judge agreed with the City Attorney's construction of the law by sticking to the vandalism allegations. It seems to me that someone who writes to encourage people to close their accounts at bank is unquestionably writing with great malice toward the bank by encouraging others to threaten its very existence (or at least bottom line).  Thus my understanding of the jury's verdict was that it is ridiculous that the law should say that sidewalk chalk can constitute vandalism, even if under the guise that Mr. Olson did not draw with malice.

What does this say about our jury system?  Jury nullification is probably alive and well. Maybe Juror number 8 was right, when the people feel like the law is wrongly applied in a particular instance, they have the duty to acquit.  What is more troubling is if this view is applied in the opposite situation; the jury feels like the law should apply in a particular circumstance and convicts.