Freedom Lawyers of America

October 30, 2002
Is a Law Unjust? One State May Allow Juries to Decide

South Dakota measure backs 'nullification' --
and would unravel the legal system, some fear.

By Stephanie Simon , Times Staff Writer

VERMILLION, S.D. -- Bob Newland calls them his "horror
stories" and they are coming in by the dozen -- unconfirmed, one-sided,
passionate.

A quadriplegic writes of his conviction on drug charges for smoking a
marijuana cigarette -- the only relief, he says, for his violent
tremors. A teenager writes of her conviction on assault charges for
standing up to local bullies. A mother writes of her son's two-year
prison sentence for violating a restraining order by putting a rose and
a teddy bear in his former girlfriend's car.

To Newland, a Libertarian activist, such stories prove
that America has become a police state -- prosecuting without
reason, punishing without mercy.

His radical proposal to restore balance: Let juries determine not just
guilt or innocence, but whether the laws of the land are fair, and
whether those laws should apply to any given defendant on any given day.

South Dakotans will vote Tuesday on a measure that would enshrine those
reforms in the state Constitution. The initiative could upend the
state's legal system -- and stir similar revolts around the nation.

Newland, a long-shot candidate for attorney general, is the prime force
behind the measure. But the concept, broadly known as "jury
nullification," has attracted an eclectic bunch of backers -- among
them, folks infuriated by tough drug laws, gun laws, tax laws,
motorcycle helmet laws, even traffic laws.

"The laws have to be applied in context. That's the issue. That's the
principle that lawyers have forgotten about," said Jorge Vicuna, 52, a
farm manager in Huron who believes he was wrongly convicted under animal
abuse statutes for trying to fend off a chained dog with a hockey stick.

The text of Amendment A sounds mild enough. If it passes, defendants in
criminal cases would have the right "to argue the merits, validity and
applicability of the law, including the sentencing laws."

In practice, that means a drunk driver would be allowed to tell a jury:
Yes, I drove while intoxicated. But state law setting a 0.08%
blood-alcohol content limit is unfair. The federal government forced
that standard down our lawmakers' throats. And in any case, it shouldn't
apply to me, because though I was legally drunk, I drove safely.

Antiabortion activists could argue that the laws against threatening
clinics are invalid because it's every citizen's moral duty to prevent
abortions. Pot smokers could press for acquittal on the grounds that
sentences for drug possession are too harsh. A batterer could claim that
domestic violence laws should not apply because the spouse was asking
for trouble.

In short, it would allow a defendant to argue that, although he broke
the law, he does not deserve to be prosecuted. "You should be allowed to
tell a jury: 'Yes, I committed these actions, but ... this is a stupid
law,' " Newland said.

Opponents -- including virtually all the state's legal establishment --
contend that Amendment A will make a mockery of due process, equal
protection and democracy itself.

It's dangerous, they argue, to allow 12 randomly selected citizens to
nullify laws that elected officials have enacted. They warn of
courtrooms turning into "popularity contests," where sympathetic
defendants get off because they convince jurors that the rules should
not apply to them.

They point out too that because prosecutors cannot appeal acquittals,
there is no mechanism for reviewing or overturning verdicts based on
sentiment rather than law.

"It will become a lawless society," said Mike Moore, a prosecutor in Huron.

"Anytime a law is not going to be applied across the board, that's
frightening," said Jeff Larson, a public defender in Sioux Falls.

The California Supreme Court made just such an argument last year in
rejecting the principle of jury nullification. The court unanimously
held that a juror who said he could not convict as a matter of
conscience -- he disagreed with the statutory rape law at issue in the
case -- should be removed from the panel. The U.S. Supreme Court also
has discouraged nullification, as have judges in state courts nationwide.

In South Dakota, it's hard to gauge voter support for Amendment A, as
there has been no statewide polling on the issue.

To get it on the ballot, proponents collected 34,000 signatures,
representing about 8% of the registered voters in this sparsely
populated state. They have been handing out balloons and brochures at
fairs, festivals and forums across South Dakota.

They also launched a contest for the "best courtroom horror story,"
promising more than $4,000 in prizes. Newland said he has received at
least 80 entries so far -- and while all the contestants support his
proposed reforms, not all will be able to vote for Amendment A. A number
sent in their stories from the state penitentiary.

Opponents, meanwhile, have been afraid to do much public campaigning.
Lawyers have debated the amendment at forums across the state --
including one here last week at the University of South Dakota law
school. They worry that advertising might backfire. Voters tend to be
suspicious of attorneys -- so they might reason that if the state bar
opposes Amendment A, it must be good.

"There's a tremendous amount of fear in the legal community," Larson said.

Amendment A represents a new tactic in the long history of jury
nullification drives.

For the last 13 years, a group called the Fully Informed Jury Assn. has
been peddling the concept to politicians, lobbying for legislation in
Oklahoma, Arizona, Montana and elsewhere. That hasn't worked. So the
group's founder, Larry Dodge, decided to go directly to the voters.
Newland agreed to sponsor the fight in South Dakota, and they raised
$100,000 to get the issue on the ballot. If it works, both men are eager
to try the approach elsewhere.

"This is the key to getting control of the government back in the hands
of the citizens," said Dodge, a photographer.

Both sides in the campaign agree that juries do sometimes ignore the law
-- and will continue to do so with or without Amendment A.

A famous case of jury nullification took place nearly 270 years ago,
when publisher John Peter Zenger was accused of printing "seditious
libel" against the colonial governor of New York. His newspaper articles
were, in fact, seditious by the standards of the time -- but they were
accurate, and a jury acquitted Zenger, helping establish the principle
of a free press.

In the mid-19th century, Northern juries often refused to convict men
and women who harbored runaway slaves. Later, Southern juries sometimes
refused to convict those who lynched blacks or prevented them from voting.

More recent, former federal prosecutor Paul Butler noticed that jurors
in Washington, D.C. -- most of them black -- were refusing to convict
black defendants on minor drug charges, even when the evidence was
overwhelming. The experience pushed him to study nullification -- and he
now supports initiatives such as Amendment A.

"If 12 citizens are saying that a certain law is being unfairly applied,
then I trust that judgment," said Butler, now a law professor at George
Washington University. "This is why juries were established. We wanted
human beings to bring their judgment to these situations."

Andrew Liepold, a law professor at the University of Illinois,
disagrees. He has studied jury nullification too. His conclusion: Just
because jurors sometimes ignore the law does not mean they should be
encouraged to do so.

"Trials aren't designed to make policy judgments," he said.

Folks who don't like a law, he added, should work through the political
process to change it.

That's not good enough for Jason Koistinen, 23, a first-year law student
at the University of South Dakota. "It takes too long," he said,
declaring his intention to vote for Amendment A. "Also, a lot of the
legislators are old and conservative. They don't necessarily reflect the
views of the voters."

Both sides in the debate agree on one point: With or without Amendment
A, justice is at times arbitrary -- and at times, elusive. The question
is whether the measure will make the system work better or worse.

"People get wrongly convicted based on false identifications, on
dishonest testimony, on incomplete evidence," said Mike Butler, an
attorney in Sioux Falls. "This amendment does not do anything to correct
those injustices."