IS A LAW UNJUST? ONE STATE MAY ALLOW JURIES TO DECIDE

South Dakota Measure Backs 'Nullification' -- And Would Unravel The Legal
System, Some Fear.

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.

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 the two 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 recently, 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."