S. DAKOTA MEASURE WOULD ALLOW JURIES TO JUDGE LAWS

In November, voters in South Dakota will decide whether to give tax
protesters, medical marijuana users and other criminal defendants a new
right: A proposed constitutional amendment would allow defendants there to
concede their guilt but nonetheless argue for acquittal on the grounds that
the law under which they were charged is misguided or draconian.

The South Dakota initiative, known as Amendment A, is the next step in a
centuries-old debate about the role of juries in deciding not just the
facts of a case but also the wisdom of the law in question. The shorthand
term for the complex subject is jury nullification.

Proponents of the amendment say it is a necessary countermeasure.

"I'm concerned with the increasing criminalization of more and more
behavior, of things that merely annoy other people," said Bob Newland, the
Libertarian candidate for attorney general of South Dakota and the chief
proponent of Amendment A.

Among recent misguided prosecutions in South Dakota, Mr. Newland said, were
those of a man convicted of cruelty to animals for using his cane to fend
off an attacking dog, and parents convicted of child pornography after
taking pictures of their toddler in the tub. He said these people were
guilty under the letter of the law but should have been able to argue to
the jury that the laws in question made no sense.

The initiative's chances of passage are hard to assess. Some 34,000 people
signed petitions to place it on the ballot, which is more than 10 percent
of the people who voted in the last statewide election.

Robert E. Hayes, the president of the South Dakota Bar Association, which
opposes the initiative, said it could appeal to voters.

"Jury duty is taken pretty seriously here," Mr. Hayes said, "and there is
some sense that juries are fundamental, citizen-level government
organizations, so we want to empower them more."

Mr. Newland has allies across the ideological spectrum. In South Dakota,
much of his support comes from the libertarian right, including opponents
of gun control.

Earlier efforts to pass jury nullification laws in Oklahoma and Arizona
failed. Similar legislation is pending in Alaska.

Lawyers say the case that prompted Amendment A was that of Matthew
Ducheneaux, who was convicted in Sioux Falls last month of marijuana
possession. Mr. Ducheneaux, 38, who had been caught smoking at a jazz
festival in 2000, said he used marijuana to alleviate the leg spasms that
have tortured him since he became a quadriplegic after an automobile accident.

Mr. Ducheneaux, whose five-day sentence was suspended, was forbidden to
argue to the jury that the law under which he was charged was unwise.

The jury in the case was troubled by the prosecution, said Chris Moran, Mr.
Ducheneaux's lawyer. "All of them conclusively said afterward that they
didn't want to find him guilty."

The prosecutor in the case, Matthew Theophilus, sounded relieved to have
won. "I've never seen a defendant more sympathetic than Matthew
Ducheneaux," he said. "Did I want to prosecute Matthew Ducheneaux? No. Did
I have to? Yes."

Mr. Theophilus opposes Amendment A.