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Is a Law Unjust? One State May Allow Juries to Decide

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

October 30, 2002|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 everybody'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.

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