Pubdate: Tue, 22 Oct 2002
Source: Washington Times (DC)
Copyright: 2002 News World Communications, Inc.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Bruce Fein

SABOTAGING THE RULE OF LAW

In contrast to Newton's Laws of Motion, every legal misstep creates an 
overreaction fraught with greater peril. Watergate begot the monstrous 
independent counsel statute. O.J. Simpson's murder acquittals occasioned 
clamor for non-unanimous jury verdicts. And in South Dakota, a few 
questionable prosecutions have sparked Amendment A, an initiative up for 
popular approval in November that would crown juries with a right to acquit 
for any reason irrespective of the evidence. In other words, criminals 
could go free because the jury despised their victims or sympathized with 
their motivations, no matter how ugly.

Bob Newland, the Libertarian candidate for attorney general of South 
Dakota, is the Amendment's chief exponent. But his reasons are unconvincing 
and worrisome. As quoted in the New York Times (Sept. 22, 2002), Mr. 
Newland laments: "I'm concerned with the increasing criminalization of more 
and more behavior, of things that merely annoy other people." Those laws, 
however, were passed by elected majorities according to democratic methods.

Opponents were free to oppose. They may seek repeal through the legislature 
or popular referenda. But until the likes of Mr. Newland succeed in 
capturing the majority, the rule of law cannot tolerate the pardoning of 
law violations by the law's opponents through jury acquittals.

To do so would be to deny the right of the majority to pass laws binding on 
dissenters, and each man would become a law unto himself.

It speaks volumes that the prime champions of jury supremacy over the law 
are groups that have suffered political defeats. This odd tableau features 
drug legalization proponents, gun control detractors, pro-life 
organizations, and, defenders of a pristine environment from the onslaughts 
of civilization. But suppose the law prohibited all abortions, would 
Operation Rescue urge jury nullification to pardon abortion providers?

Suppose the law prohibited restricting the sale of handguns. Do you think 
the National Rifle Association would celebrate jury nullification for 
members of Handgun Control Inc. to pardon attacks on firearms dealers? If 
marijuana were legalized, who believes NORMAL would applaud jury pardons of 
anti-drug zealots who vandalized marijuana shops like Carrie A. Nation's 
took the hatchet to saloons? The questions answer themselves, and strongly 
suggest that Amendment A is largely a circumvention of democracy by 
ideological groups momentarily frustrated at their inability to persuade 
the majority.

Mr. Newland summons in his defense of jury nullification what he 
characterizes as misguided prosecutions for unblameworthy conduct: a 
conviction for cruelty to animals based on caning an attacking dog; and, a 
child pornography guilty verdict based on parental photos of their nude 
toddler in the tub. According to Newland, the defendants in both cases 
should have been permitted to urge the jury to acquit by ignoring the law 
and invoking their personal sense of justice and equity. But the pardon 
power of South Dakota's politically accountable executive is designed to 
cure miscarriages of justice. Juries, in contrast, speak for only 
themselves, act in secrecy, and are not required to justify their verdicts 
to the public.

The marquee prosecution that begot Amendment A concerned the ailing Mathhew 
Ducheneaux, a quadriplegic beset by leg spasms. He was convicted of smoking 
marijuana, which he maintained was medically appropriate to alleviate pain. 
His sentence was milder than Sancho Panza's simulated flagellations: a 
suspended sentence of five days in jail. And Mr. Ducheneaux is entitled to 
seek a pardon. Where is the monumental injustice in his case that cries out 
for jury nullification?

Amendment A, moreover, is not confined to petty offenses. Juries could 
acquit for vile crimes, like the despicable murder of young Emmett Till by 
white racists or the mob killing of Leo Frank. The worst prejudices would 
be exploited by defendants to triumph over justice.

Jurors who would categorically refuse to consider a defendant's plea for 
nullification authorized by law would be excluded, just as categorical 
opponents of the death penalty cannot sit in capital cases. Qualified 
jurors would thus be inclined toward sympathy for the defense. Suppose in 
the immediate aftermath of Pearl Harbor, a Californian man was accused of 
torching the home of a citizen of Japanese ancestry. Jury nullification 
would have permitted the defendant to urge a not-guilty verdict to avenge 
the "date which will live in infamy," or to prevent a dilution of 
Anglo-Saxon blood, or to retaliate for the imagined disloyalty of the 
victim or his race. The pro-defense jury would probably have acquitted, and 
sent an official message that havoc against Japanese-Americans risked no 
punishment.

Jury nullification enthusiasts retort that juries de facto enjoy that 
power, despite instructions to follow the law, because their deliberations 
are secret and acquittals are final under the double jeopardy clause of the 
Fifth Amendment. The antisocial ramifications of unauthorized jury bigotry, 
while deplorable, are nevertheless confined because the voice of the law 
still condemns the not guilty verdicts. Amendment A, in contrast, gives 
government sanction to loathsome jury instincts and lawlessness. By 
sponsoring lawbreaking, government would invite a breakdown of the social 
order. Nothing in contemporary prosecutorial excesses comes close to 
justifying this grim peril of jury nullification.
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MAP posted-by: Jay Bergstrom