Posted on 09/22/2002 11:13:54 AM PDT by Jean S
PIERRE, S.D. (AP) — A measure on the South Dakota ballot this November would allow defendants to tell juries they can disregard a law if they don't like it — a prospect that has the legal profession aghast.
Amendment A would let people accused of crimes argue that a law should not apply to their circumstances or that is has no merit. The practice is known as jury nullification.
The proposed amendment to the South Dakota Constitution was put on the ballot after more than 34,000 signatures were gathered by a group that includes at least one advocate of legalizing marijuana use. The idea could also appeal to the libertarian right, tax protesters, gun owners and abortion foes.
Opponents say the measure would cripple the legal system.
``It is very offensive to those of us who believe in the constitutional form of government and common law,'' said Rober Miller, a former chief justice of the state Supreme Court.
Miller said the measure may be unconstitutional.
``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,'' he said.
Jury nullification is not a new concept. Over the years, juries refused to convict people who harbored runaway slaves before the Civil War, sold alcohol during Prohibition or resisted the draft during the Vietnam War.
But according to legal experts, no state has a statute allowing jury nullification. At least three states — Indiana, Maryland and Georgia — say in their constitutions that juries can judge both the law and the facts. But none of those states makes use of the practice, which fell into disfavor after an 1895 U.S. Supreme Court decision that frowned on jury nullification.
Among those who helped get the measure on the ballot in South Dakota is Bob Newland, a Libertarian candidate for attorney general who favors marijuana legalization. He also backed another ballot measure to legalize industrial hemp, a close cousin of pot.
Newland said Amendment A is aimed only at 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 any damage was done,'' he said.
He and other supporters contend that allowing jurors to judge laws would be the ultimate check and balance in democracy. They say lobbyists influence the passage of most state laws, while average citizens have little or no say.
Larry Dodge, a Libertarian who helped found a jury-nullification group in Montana in 1989 and helped gather signatures in South Dakota, offered the example of a farmer charged with poaching for shooting deer that are eating his crops.
``I'd like the people of South Dakota to decide what's victimless and what's not,'' Dodge said. ``It would improve democracy.''
Legal experts don't see it that way.
``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?''' South Dakota Attorney General Mark Barnett said.
Mike Moore, president of the South Dakota State's Attorneys Association, said the move would turn trials into popularity contests.
``A jury could find a rich person guilty of theft but decide that a poor person had a good reason to steal,'' he said.
One case cited by proponents of the measure is that of Matthew Ducheneaux, who has been in a wheelchair since a 1985 car crash and was recently convicted of a drug charge. He wanted to tell jurors he smokes marijuana to ease chronic muscle spasms, but a judge barred the argument.
``I think it would have persuaded the jury to find me not guilty if I could have used a medical defense,'' said Ducheneaux, 38. He was given a suspended five-day jail term.
Noting there are nine Indian tribes in South Dakota, Ducheneaux, a member of the Minniconjou Sioux tribe, predicted many Indians will vote for Amendment A because they feel state courts treat them unfairly.
Gerald Goldstein of San Antonio, past president of the National Association of Criminal Defense Lawyers, said that because of the secrecy of jury deliberations, jury nullification undoubtedly takes place already.
``Whether intended or not, the juror always has that opportunity, even if they're told to follow the law,'' he says. ``There's nothing anybody can do about it because jurors cannot be compelled to explain their verdicts.''
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On the Net:
Secretary of state: http://www.state.sd.us/sos/sos.htm
Project Vote Smart (ballot issues): http://www.vote-smart.org/index.phtml
I'd say they are calling us nut cases. It seems the politicians have been practicing "citizen nullification" for a long time now. It seems they just would hate it if we nullified them. This isn't "jury nullification", it is "politician (read:Lawmaker) nullification".
Small segment?
Hmmm... Worked for Bill Clinton many times, must now be the law-of-the-land. More Klintoon legacy.
Like the legal system's incredibly robust as it stands. Anyone say, "OJ"? Jury nullification is one of the most important safeguards of our freedom. The fact that these scumbag f**king trial lawyers and "judges" are angry that ordinary citizens might be INFORMED of such a thing, well, let's just say it serves to strengthen certain preconceptions I have about the "legal" professions.
I think juries should be aware of the nullification power that they possess, but explicitly including it in the instructions from the judge immediately before deliberations begin may be seen (or could be used) as sending a specific message to arrive at a certain verdict.
That "segment of the population" probably accounts for 95% of the population of the United States!!!
What do you feel they are screwing up in this case?
"Jury nullification" is always an option, by definition. Juries can declare a defendant "not guilty", and they don't have to explain why, and there's nothing anyone can do about it. If that weren't the case, and the verdict was preordained as guilty, there'd be no point in having juries.
The problem is that judges instruct juries that they may only consider the facts, not the law itself. And most jurors don't know any better, so they go along with the judges' instructions even when they believe a grave injustice is being committed by convicting the defendant.
By having this measure on the ballot and generating a debate, it is educating the public as to the inherent nullification power of juries. So in a sense it doesn't matter whether the measure actually passes. It wins if it informs enough people -- say 1 in 12.
The above is a good overall introduction to jury duty and the historic powers of jury nullification.
Straight up, the point is, Jury Nullification is a well founded, historical power of the jury.
It is meant to challenge the power of government and courts alike. (Esp. overbearing Judges.)
Laws can be mis-enterpreted. Legal or Law Enforcement power can be abused, and laws enforced in ways they were never meant to be.
People can find themselves being prosecuted under a law for reasons that have nothing to do with the law being enforced.
People can be targeted by those in power.
There can be abuse under colour of Law.
The Jury is there to make sure the rights of the people are defended, just as much as to determine guilt or innocence.
They are also there to make sure the law is not abused.
Historically, Juries were advised by the court of these rights, powers and responsibilities, not just by the judge, but by lawyers as well, during trial.
Gradually, courts began to omit these instructions, with this omission becoming common practice nationally approximately 60 years ago. (1940's & 50's)
Today, virtually no court in the nation advises juries on jury nullification.
We need to return this right and responsibility to the jury.
Sometimes You may be guilty, but under a bad law.
Or, a bad interpretation / enforcement of what was meant to be a good law.
Let's return Jury nullification to the People, and let those from whom all government power is derived, be the final judge.
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