Pubdate: Sun, 22 Sep 2002
Source: Seattle Times (WA)
Copyright: 2002 The Seattle Times Company
Contact:  http://www.seattletimes.com/
Details: http://www.mapinc.org/media/409
Author: Adam Liptak, The New York Times

SOUTH DAKOTA VOTERS MAY LET JURIES SELECTIVELY REJECT THE VALIDITY OF A LAW

In November, South Dakota voters will decide whether to give tax 
protesters, medical marijuana users and other criminal defendants a new 
right. A proposed constitutional amendment would allow defendants to 
concede their guilt but 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 only the 
facts but also the wisdom of the law in question. The shorthand term 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, 
Libertarian candidate for attorney general of South Dakota and chief 
proponent of Amendment A.

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.

Robert Hayes, 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. Much of his support 
comes from the libertarian right, including gun-control foes. 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 Leipold, a professor at the 
University of Illinois College of Law who has written about jury nullification.

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, convicted last month of marijuana possession. Ducheneaux, 38, 
who had been caught smoking at a jazz festival in 2000, said he has used 
marijuana to alleviate leg spasms since he became a quadriplegic after an 
automobile accident.

Ducheneaux's five-day sentence was suspended, but the jury was troubled by 
the prosecution, said Chris Moran, Ducheneaux's lawyer.

Prosecutor 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."

Opponents, 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.

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 Cabranes of 
the New York-based 2nd U.S. Court of Appeals wrote in 1997.

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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MAP posted-by: Larry Stevens