Pubdate: Tue, 27 Aug 2002
Source: Wall Street Journal (US)
Copyright: 2002 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Jess Bravin

INITIATIVE PUTS SOUTH DAKOTA LAW ON TRIAL

By JESS BRAVIN Staff Reporter of THE WALL STREET JOURNAL

SIOUX FALLS, S.D. -- Matthew Ducheneaux goes on trial here Tuesday for 
marijuana possession, but the jury's verdict could do more than decide 
whether the 38-year-old quadriplegic is fined or sent to jail.

Win or lose, his trial will showcase a ballot initiative that could spark a 
revolution in South Dakota's criminal laws -- something far beyond measures 
authorizing the medical use of marijuana adopted by nine states since 1996.

South Dakota courts barred Mr. Ducheneaux from arguing that his medical 
condition, which he says is helped by smoking marijuana, justified breaking 
the law. That has made him, supporters say, the "poster child" for 
Constitutional Amendment A, a voter initiative on the Nov. 5 ballot that 
would authorize every criminal defendant in the state to challenge "the 
merits, validity and applicability of the law, including the sentencing laws."

South Dakota is home to only 0.3% of the U.S. population, or 757,000 
people. Still, should the measure pass, proponents predict a wave of 
similar measures in other states where zero-tolerance law enforcement and 
harsh mandatory-sentencing rules have bred distrust of the justice system.

"There are only a few acts that can really be considered criminal," says 
Amendment A's chief proponent, Bob Newland, a free-lance 
writer-photographer and Libertarian candidate for state attorney general. 
Mr. Newland, who has had his own scrapes with the law over drunken-driving 
and marijuana possession, envisions defendants telling juries, "'Yes, I did 
what they say I did, but I didn't hurt anybody and this is a stupid law.' 
If juries are allowed to hear this evidence, then they will refuse to 
convict and people will be allowed to go free."

South Dakota's legal and political leadership, fearing that very outcome, 
opposes Amendment A. The ballot measure "amounts to anarchy," warns Jim 
Abbott, president of the University of South Dakota and the Democratic 
gubernatorial nominee. Veteran prosecutor Larry Long, the Republican 
candidate for attorney general, calls the proposal "nuts."

While some dismiss the 15-word measure as a long shot, its fate is far from 
certain. "In South Dakota, you never can tell," says Frank Pommersheim, a 
University of South Dakota law professor. A key factor, he predicts, is 
Native Americans, "who often feel they get railroaded" by the justice 
system. They are 8.3% of the state's population, but 24.5% of its prison 
inmates.

Mr. Ducheneaux, a Minniconjou Sioux who lives on the Cheyenne River Indian 
Reservation, was arrested in Yankton Trail Park here two years ago, when a 
police officer spotted him smoking pot near a jazz concert.

Confined to a wheelchair since a 1985 car accident ended his hopes of a 
rodeo career, Mr. Ducheneaux says conventional medicines were useless in 
controlling his muscle spasms. Without marijuana, "my muscles tense up so 
bad ... it's like those anacondas that squeeze the air out of your lungs," 
he says.

Mr. Ducheneaux got permission to smoke pot through a federal research 
program, but he couldn't find a pharmacy willing to undertake the stringent 
procedures required to dispense marijuana through the federal program.

A trial magistrate authorized Mr. Ducheneaux's public defender, Chris 
Moran, to mount a "necessity defense," asserting that his client acted to 
avoid "imminent or emergent bodily harm," the legal standard in South Dakota.

Prosecutor Matthew Theophilus objected, however, and an appeals court 
blocked Mr. Moran from making that argument since the state Legislature 
hasn't authorized the medical use of marijuana. Mr. Ducheneaux "is a very 
sympathetic defendant," says Mr. Theophilus. But "as South Dakota 
prosecutors, it's our duty to uphold South Dakota law as it currently 
stands." The misdemeanor carries a maximum penalty of one year in jail and 
a $1,000 fine.

Mr. Moran and Mr. Theophilus agree that Amendment A would all but assure 
Mr. Ducheneaux's acquittal. And they estimate Amendment A could be invoked 
in anywhere from a quarter to half of all criminal prosecutions. In 
addition to drug, prostitution and other vice cases, they predict 
successful arguments that penalties for domestic assault, a big part of 
South Dakota's criminal docket, are too strict.

Currently in all states plus the federal court system, judges tell juries 
the bounds of their deliberations. While jurors weigh "facts," they are 
sternly warned, as the South Dakota rules say in capital letters, that the 
judge "AT ALL TIMES DETERMINES THE LAW."

Except, that isn't precisely so. Even if the accused obviously is guilty, 
jurors can acquit, and a judge can't stop it. That's known as "jury 
nullification," whereby a jury refuses to convict a defendant of a crime he 
or she clearly committed. As Supreme Court Justice Joseph Story wrote in 
1835, though jurors lack the "moral right" to do so, they hold the 
"physical power to disregard the law ... according to their own notions, or 
pleasure."

At times, a wave of jury nullifications has signaled a change in social 
attitudes, presaging repeal of unpopular laws. Before the Civil War, juries 
in New England refused to convict people who harbored runaway slaves. 
Moonshiners were acquitted during Prohibition, as were draft resisters 
during the Vietnam War. Jury nullification is appropriate when "a 
defendant's conduct is 'unlawful' but not blameworthy," Chief Judge David 
Bazelon of the U.S. Court of Appeals in Washington wrote in a 1972 dissent.

Amendment A sprang from a conversation Mr. Newland, 54, had with Larry 
Dodge, a co-founder of the Fully Informed Jury Association, which has 
unsuccessfully pushed legislation around the U.S. to advise jurors of their 
power to ignore the law. Noting that South Dakota required only 26,019 
signatures, or 10% of the turnout in the previous gubernatorial election, 
to place a constitutional amendment on the ballot, Mr. Newland says, they 
tapped a network of antigovernment believers across the U.S. to raise 
$65,000 for a petition drive. The odds looked good; since 1972, when South 
Dakota first allowed voter initiatives to amend the state constitution, 10 
measures have qualified for the ballot, and half have passed.

In recent years, financier George Soros and others have bankrolled 
initiatives to decriminalize the medical use of marijuana. Ethan Nadelmann, 
an adviser to Mr. Soros and executive director of the Drug Policy Alliance 
in New York, says jury-nullification initiatives may offer another 
approach. But he worries that Amendment A could encourage disregard of laws 
he supports, such as environmental regulations.

Indeed, Amendment A's appeal is hard to characterize as liberal or 
conservative. "The jury-selection process tends to eliminate knowledgeable 
jurors in favor of ignorant jurors," Rich Weixel, a 51-year-old Sioux Falls 
electrician and a Democrat, told Mr. Newland at a campaign stop. Mr. Weixel 
believes "right-wing racists" would take advantage of Amendment A to evade 
taxes, firearms restrictions and antidiscrimination laws.

Adam Zobel, 24, a Republican and student at South Dakota State University, 
says Amendment A could prove a remedy to overzealous law enforcement in his 
hometown of Forestburg. If farmers there "shoot a deer for getting into the 
crops, they get prosecuted for poaching," he says, with a hint of outrage.
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