Pubdate: Sun, 22 Sep 2002
Source: San Francisco Chronicle (CA)
Copyright: 2002 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Adam Liptak, New York Times

SOUTH DAKOTA VOTERS TO DECIDE IF JURIES CAN OVERRIDE STATE LAW

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 amendment to the state constitution 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.

MISGUIDED PROSECUTIONS

Among recent misguided prosecutions in South Dakota, 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," Hayes said, "and there is some 
sense that juries are fundamental, citizen-level government organizations, 
so we want to empower them more."

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.

"They are a very interesting collection of people who believe 
philosophically in the power of juries, plus a lot of single-issue people."

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 last month in Sioux Falls, S.D., of marijuana 
possession. 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.

ARGUMENT FORBIDDEN

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, 
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."

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."

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."

MOST COURTS HOSTILE

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 U. S. Court of Appeals for the 2nd Circuit, in New York, wrote in 1997.

The lawyers in Ducheneaux's case have mixed feelings about it.

"I think there is some merit to his defense," Theophilus said, referring to 
the defendant's argument that he had a medical need for marijuana.

Moran, who represented 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?"
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