cannabisnews.com: South Dakota to Vote on Extending Jury Rights





South Dakota to Vote on Extending Jury Rights
Posted by CN Staff on September 21, 2002 at 15:51:58 PT
By Adam Liptak
Source: New York Times 
In November, voters in South Dakota will decide whether to give tax protesters, medical marijuana users and other criminal defendants a new right. A proposed constitutional amendment would allow defendants there to concede their guilt but nonetheless argue for acquittal on the grounds that the law under which they were charged is misguided or draconian.The South Dakota initiative, known as Amendment A, is the next step in a centuries-old debate about the role of juries in deciding not just the facts of a case but also the wisdom of the law in question. The shorthand term for the complex subject is jury nullification.
Proponents of the amendment say it is a necessary countermeasure."I'm concerned with the increasing criminalization of more and more behavior, of things that merely annoy other people," said Bob Newland, the Libertarian candidate for attorney general of South Dakota and the chief proponent of Amendment A.Among recent misguided prosecutions in South Dakota, Mr. Newland said, were those of a man convicted of cruelty to animals for using his cane to fend off an attacking dog, and parents convicted of child pornography after taking pictures of their toddler in the tub. He said these people were guilty under the letter of the law but should have been able to argue to the jury that the laws in question made no sense.The initiative's chances of passage are hard to assess. Some 34,000 people signed petitions to place it on the ballot, which is more than 10 percent of the people who voted in the last statewide election.Robert E. Hayes, the president of the South Dakota Bar Association, which opposes the initiative, said it could appeal to voters."Jury duty is taken pretty seriously here," Mr. Hayes said, "and there is some sense that juries are fundamental, citizen-level government organizations, so we want to empower them more."Mr. Newland has allies across the ideological spectrum. In South Dakota, much of his support comes from the libertarian right, including opponents of gun control. Elsewhere, some liberal academics say nullification may be a sort of civil right."I would observe that they are strange bedfellows — pro-marijuana, pro-gun, anti-abortion, pro-environment," said Andrew D. Leipold, a professor at the University of Illinois College of Law who has written about jury nullification. "This cuts very widely across many political groups. They are a very interesting collection of people who believe philosophically in the power of juries, plus a lot of single-issue people."Mr. Newland said South Dakota was "the center of the universe for the informed jury movement now," adding, "Everybody is watching what is happening here."Earlier efforts to pass jury nullification laws in Oklahoma and Arizona failed. Similar legislation is pending in Alaska.Lawyers say the case that prompted Amendment A was that of Matthew Ducheneaux, who was convicted in Sioux Falls last month of marijuana possession. Mr. Ducheneaux, 38, who had been caught smoking at a jazz festival in 2000, said he used marijuana to alleviate the leg spasms that have tortured him since he became a quadriplegic after an automobile accident. Mr. Ducheneaux, whose five-day sentence was suspended, was forbidden to argue to the jury that the law under which he was charged was unwise.The jury in the case was troubled by the prosecution, said Chris Moran, Mr. Ducheneaux's lawyer. "All of them conclusively said afterward that they didn't want to find him guilty."The prosecutor in the case, Matthew Theophilus, sounded relieved to have won. "I've never seen a defendant more sympathetic than Matthew Ducheneaux," he said. "Did I want to prosecute Matthew Ducheneaux? No. Did I have to? Yes."Mr. Theophilus opposes Amendment A. "It's basically saying that the law should apply to one person one day and not to another person another day," he said. "They're trying to use Amendment A as an end run around the legislatures, as an end run around democracy."Mr. Ducheneaux emphasized the medicinal power of marijuana. "It's instant relief for everything," he said. "It even stimulates the mind for thinking."All he asked, he said, was to be able to make these arguments in court."I think they're violating my constitutional right of making my defense and proving my case," Mr. Ducheneaux said. He is appealing his sentence, which requires him to abstain from marijuana for a year. The proposed amendment would add a few words to a list of familiar rights in the South Dakota Constitution, and its opponents say it is artfully drafted to appear innocuous. The amendment would allow defendants "to argue the merits, validity and applicability of the law, including the sentencing laws."Opponents of the amendment, which include most of the establishment bar in South Dakota, say it is antidemocratic in allowing a small group of people to decide the wisdom of a law.Mr. Newland said a more general approach was unrealistic, given the hundreds of new laws enacted each year."One option is to go to the Legislature and argue for the repeal of a single bad law," he said. "The other option is to allow people to argue during the defense portion of the trial that the law in question is flawed, misapplied, or that `yes, I did this, but if you convict me I'm going to jail for a long, long time.' "Paul Butler, a former federal prosecutor in Washington who is now a professor at George Washington University Law School, supports the initiative. He said no one disputes the idea that juries have the practical power to nullify laws in given prosecutions, because their deliberations are secret and unreviewable."I have always thought that the current state of the law is perverse," Professor Butler said. "It's sort of like a secret power. To the extent these initiatives tell juries about a power they have, I'm in favor of them."In his academic writing, Professor Butler has encouraged jury nullification in some drug possession cases as a sort of protest against what he says are draconian drug laws that disproportionately affect African-American men. He says he has mixed feelings about drug distribution cases and opposes nullification in cases involving violent crime.Professor Leipold of the University of Illinois said creating a right to jury nullification while hoping it will be applied sensibly was wishful thinking."It's like giving someone a credit card with no limit on it and saying, `Be very careful how you spend it,' " he said.In colonial times and in the early days of the Republic, American juries played a more active role in interpreting and applying the law. In the libel trial of John Peter Zenger in 1735, for instance, Mr. Zenger conceded that he had printed defamatory matter, which under the law at the time required conviction. His lawyer urged the jury to interpret the law to allow proof of truth as a defense. Mr. Zenger was acquitted.Professor Leipold said it was a mistake to draw too many lessons from the Zenger case. "All we do is look back on the cool cases," he said. "We don't look back at the cases where juries refused to convict the killers of Native Americans."Indeed, said David A. Pepper, who has written on the history of jury nullification, the American experience with the phenomenon has been decidedly mixed. Juries have acquitted people who harbored fugitive slaves and members of mobs that lynched black men. They have gone easy on people prosecuted on alcohol charges during Prohibition and on men accused of domestic violence.More recently, courts have been almost uniformly hostile to nullification arguments. "We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent," Judge Jose A. Cabranes of the Court of Appeals for the Second Circuit, in New York, wrote in 1997.The lawyers in Mr. Ducheneaux's case have mixed feelings about it."I think there is some merit to his defense," Mr. Theophilus, the prosecutor, said, referring to the defendant's argument that he had a medical need for marijuana.Mr. Moran, who represented Mr. Ducheneaux, says he is not sure how he feels about Amendment A."It could be very beneficial in some cases," he said. "But what sort of can of worms does it open?"Source: New York Times (NY)Author: Adam LiptakPublished: September 22, 2002Copyright: 2002 The New York Times Company Contact: letters nytimes.com Website: http://www.nytimes.com/ Related Articles & Web Sites:FIJAhttp://www.fija.org/South Dakota NORMLhttp://www.sodaknorml.orgBallot Measure Would Put Laws On Trial http://cannabisnews.com/news/thread14124.shtmlS.D. Ballot Initiative Puts State's Laws on Trial http://cannabisnews.com/news/thread13902.shtml
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Comment #4 posted by Dan B on September 22, 2002 at 09:11:59 PT:
Checks and Balances
"Opponents of the amendment, which include most of the establishment bar in South Dakota, say it is antidemocratic in allowing a small group of people to decide the wisdom of a law."Interesting statement. Does this mean that the state and federal govbernments are also undemocratic, as they are a small group of people who create laws, largely without the consent of the people and in direct contradiction to what they have told the people they would do? In fact, jury nullification has always been a legal part of the system of checks and balances. That's right, folks--the people are the fourth branch of government--and we are supposed to be the most important, the most influential. The rule of law was always supposed to be balanced by the will of the people. It's a shame that the federalists in the bar association won't acknowledge this fact. Why? Because it rightfully calls into question the value of their "service" to the people.I wonder if these bar association folks had any problem with the fact that just five people decided who the president was going to be? Heck, I'll take my chances with twelve informed jurors any day before I'd let those misinterpreters of the law have a say.Dan B
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Comment #3 posted by DdC on September 22, 2002 at 08:42:58 PT
What do shysters have to do with democracy?
Both judge, defense and persecutors work for the BAR. 
The BAR work for the Fascist... 
Who ya gonna call? 
Peace, Love and Liberty or the Merchants of D.E.A.th!
DdCHow FIJA Saved My Life! 
http://serendipity.magnet.ch/jsmill/fija1293.htm 
http://www.cannabisnews.com/news/thread4055.shtmlErowid Freedom Vault : Jury Nullification 
http://www.erowid.org/freedom/jury_nullification/jury_nullification.shtmlTrial by jury — Cato Institute 
http://www.cato.org/dailys/12-09-98.htmlThe History of Jury Nullification! --International Society for Individual Liberty 
http://www.jersey.net/~njdevil/history_of_jurynullification.htmJury Nullification: The "Top Secret Right" -  
http://www.jersey.net/~njdevil/top_secret_right.htmlIn Jury Rooms, Form of Civil Protest Grows — Washington Post 
http://www.washingtonpost.com/wp-srv/national/jury080299.htmAlso: http://www.mapinc.org/drugnews/v99.n472.a03.html NJ Historic Jury Nullification Trial 
State of New Jersey -vs- Forchion (3596-10-98) Ed Forchion's/Legalize Marijuana Party Website 
http://www.jersey.net/~njdevil/
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Comment #2 posted by DANA on September 22, 2002 at 01:59:11 PT
YES?
""I think they're violating my constitutional right of making my defense and proving my case," Mr. Ducheneaux said.""..............One wonders why,or how;arbitrary decisions can be made by a judge,that would seem to negate a persons right to defend themselves in court?Perhaps such mandates by a judge could be understandable in certain cases,but when it comes to someone who is trying to defend themselves in some absurd Marijuana case..and; ..here's the part that really makes me angrier than the mind of an old tomcat,who has just has his nuts deleted!;;
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"Opponents of the amendment, which include most of the establishment bar in South Dakota, say it is
      antidemocratic in allowing a small group of people to decide the wisdom of a law."
 
 
.......Oh...I see...it's "antidemocratic"?,,,not "undemocratic",,,but "antidemocratic"...Well then,,one wonders how "large" ,certain groups of people are who DO get to " decide the wisdom of a law."??......I admit,,I'm tempted to use forbidden expletives at this point,so I gotta go..
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Comment #1 posted by DdC on September 21, 2002 at 17:15:18 PT
Go Bob!!!
Bob Newland for SD Attorney General!!! 
http://pub3.ezboard.com/fendingcannabisprohibitioncannabisnewsandinformation.showMessage?topicID=20.topic 
Hemp for Victory
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