Ballot Measure Would Put Laws On Trial 

Ballot Measure Would Put Laws On Trial 
Posted by CN Staff on September 16, 2002 at 07:53:14 PT
By Joe Kafka, Associated Press Writer
Source: Press & Dakotan
If a measure on South Dakota's Nov. 4 ballot is approved, defendants could tell juries that certain laws are stupid and can be ignored. And that prospect has the state's legal profession in a tizzy.Amendment A is a common sense, citizen-level method of ensuring that government hasn't gotten too big for its britches, those pushing passage of the proposed constitutional change say.
The measure would let people accused of crimes argue that laws under which they are charged should not apply to their circumstances, or that the laws have no merit or validity. It also allows defendants to argue that sentences for crimes are too stiff.Bob Newland of Hermosa, a frequent office-seeker and current Libertarian candidate for state attorney general, helped gather signatures to put it on the ballot.Newland, also the state president of an affiliate of the National Organization for the Reform of Marijuana Laws, says the defendants' rights measure is not aimed at any particular laws -- other than victimless crimes.I don't care what the crime is, people have the right to say as a defendant that they did this act for whatever reason and let the jury sort out whether it's a common-sense reason, whether any damage was done, how much a person is to be punished and then applying or not applying the law based on those deductions,'' he says.Far too many people are in prisons for victimless crimes, Newland says, knowing Amendment A opponents will seize on his strongly held view that marijuana should be legalized.The state can argue that drug laws are good, and people should be able to argue they're not, he says. Then juries can decide cases until a consensus is reached on how much drug use will be tolerated, Newland says.Allowing jurors to judge laws would be the ultimate check and balance in democracy, Newland and other Amendment A supporters say. They say lobbyists influence the passage of most state laws while average citizens have little or no say.Opponents say the system of laws that is designed to treat everyone equally would be discarded if voters pass Amendment A.Robert A. Miller of Pierre, former chief justice of the state Supreme Court, hints the measure may be unconstitutional because it allows jurors to disregard the law.It is very offensive to those of us who believe in the constitutional form of government and common law,'' he says. I think it has a lot of appeal for the small segment of our population that has no trust for government and especially no trust for courts and lawyers.''If jurors could consider the merits of laws, Matthew Ducheneaux, 38, of Eagle Butte, says he may not have been convicted of marijuana possession. Confined to a wheelchair since a 1985 car crash, Ducheneaux says he smokes marijuana to relieve chronic muscle spasms that are not as effectively treated by prescription drugs.I think it would have persuaded the jury to find me not guilty if I could have used a medical defense,'' Ducheneaux says. It's not like I'm just trying to get high. I didn't believe in marijuana until I had my accident.''Ducheneaux's recent five-day jail term was suspended if he doesn't smoke marijuana for a year. Safely back in his home on the Cheyenne River Indian Reservation, 300 miles from the courtroom, Ducheneaux says he has no intention of laying off pot.What are they going to do? Throw me in jail?''Although a magistrate initially agreed to let him argue that he needs marijuana for medicinal purposes, a circuit judge overruled the magistrate because that would have been tantamount to telling jurors they could ignore the law against marijuana possession.If there was ever a case that could have benefited from jury nullification, this was it,'' says Ducheneaux's attorney, Chris Moran, a Minnehaha County deputy public defender. Moran plans to appeal.It is called jury nullification when jurors ignore laws they dislike for political or personal reasons. The practice has occurred often, most notably when juries refused to convict people who harbored runaway slaves before the Civil War, sold alcohol during Prohibition and resisted the draft during the Vietnam War.Ducheneaux, an American Indian, says many Indians likely will vote for Amendment A because they feel state courts often treat them unfairly.We've been getting screwed for 200 years,'' he says.South Dakota has nine Indian reservations, but Indians account for only 8 percent of the state population and are unlikely to be much of a factor in the election. For example, 42 percent of registered voters in the state cast ballots in the June primary, but just 15 percent of voters on the Pine Ridge Reservation went to the polls.The South Dakota State's Attorneys Association opposes the measure. President Mike Moore of Huron says such a provision could turn jury trials into popularity contests for defendants.Based on who they are, juries could feel sorry for them,'' Moore says. A jury could find a rich person guilty of theft but decide that a poor person had a good reason to steal.''If Amendment A passes, the prosecutor says he will file a legal challenge with the state Supreme Court the first time a defense lawyer attempts to tell jurors they can ignore the law.It doesn't provide equal protection under the law if people are treated differently,'' Moore says.The 14th Amendment of the U.S. Constitution prevents states from denying any citizen equal protection of laws.Inconsistencies will breed uncertainty and distrust in the criminal justice system if juries reach different verdicts for people accused of identical crimes, opponents say.Giving such power to juries is a waste of state lawmakers' efforts and of judicial time, said Brad Schreiber of Belle Fourche, president of the state Trial Lawyers Association.Jurors who feel that defendants have been unfairly prosecuted or who don't like the way a law applies already can find them innocent without explanation, Schreiber says.Similar attempts have failed in several other states, says Larry Dodge of Rapid City, who is helping lead the South Dakota effort. South Dakota, the first state to have the issue decided by voters, was picked because it's easher to get such measures on the ballot, he said.It required 26,019 petition signatures; supporters turned in about 34,000 names.The most famous recent example of jury nullification was the aquittal of former football great O.J. Simpson, says South Dakota Attorney General Mark Barnett.You're basically saying to a jury, We know he did it, and it was wrong, but it was O.J.; we like O.J., and we're not going to convict him,''' Barnett says.There are already a vast number of protections for a criminal defendant, but the one defense he should not be allowed is, Yeah, I broke the law, so what?'''Jury nullification is especially dangerous because it blocks a conviction if only one juror believes the law should not be followed, the attorney general says. Convictions require unanimous juries.I suppose the theory is, if there's one pot smoker on a jury or one juror who has a relative that was convicted of burglary, then they can feel bad for this pot smoker or burglar and decide to let him go,'' Barnett says.Dodge says Amendment A is not jury nullification in the traditional sense that it would require judges to inform juries of their ability to weigh the merits of laws. The ballot measure instead allows defendants and their lawyers to argue against laws, he says.What we are talking about are rights of the accused,'' Dodge says. It's a missing link in the democratic process.Judges now tell jurors they must follow the law, whether they like it or not, says Dodge, a Libertarian photographer and postcard publisher who founded a jury nullification group in Montana in 1989. Dodge also has run unsuccessfully in Montana for U.S. Senate, governor and secretary of state.Many laws do not make sense and should be ignored by juries, he says, offering examples:-- A farmer who shoots deer that are eating his crops should not be charged with poaching;-- A person who hits a neighbor's aggressive dog should not be charged with cruelty to animals;-- A couple who take nude photos of their baby in a bathtub should not be charged with child pornography.I'd like the people of South Dakota to decide what's victimless and what's not,'' Dodge says.We're becoming a nation of subjects, rather than citizens. Arbitrary laws unreviewed by juries are made at greater and greater distances from where we live, enforced by people we don't know who have no incentive to hear whether the law is any good or not.''Government has gotten out of hand, and juries can help rein it in, Dodge says.Former state Sen. Kermit Staggers of Sioux Falls pushed parts of Amendment A in the 2000 Legislature. We do have some laws that have been on the books for a long time, and sometimes they don't fit exactly with modern circumstances,'' says Staggers, who teaches history and political science in college.Good laws will not be affected by the ballot measure, according to Newland, who said during his campaign for governor in 1998 that people convicted of possessing or selling drugs should be pardoned.What prosecutors call unequal justice is going to be the orderly evolution of law through a system which includes instant and constant feedback from those most directly affected by the law. That is, the accused and their judges and juries,'' he says.In an unusual political move, Newland's opponents in the attorney general's race issued a joint statement against the ballot measure.The constitutional amendment is one of two measures Newland helped get on the ballot. The other would legalize industrial hemp, a close cousin of marijuana, which can be used to make such things as paper, rope, fabric and fuel.Source: Yankton Daily Press & Dakotan (SD)Author: Joe Kafka, Associated Press WriterPublished: Monday, September 16, 2002Copyright: 2002 Yankton Daily Press & DakotanContact: newsroom yankton.netWebsite: Hemp Archives
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