ONE STATE WEIGHS ALLOWING 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, 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," Hayes said, "and there is some
sense that juries are fundamental, citizen-level government organizations,
so we want to empower them more."

Newland has allies across the ideological spectrum. In South Dakota, much
of his support comes from the libertarian right, including opponents of gun
control. Elsewhere, some liberal academics say nullification may be a sort
of civil right.

"I would observe that they are strange bedfellows - pro-marijuana, pro-gun,
anti-abortion, pro-environment," said Andrew D. Leipold, a professor at the
University of Illinois College of Law who has written about jury
nullification. "This cuts very widely across many political groups. They
are a very interesting collection of people who believe philosophically in
the power of juries, plus a lot of single-issue people."

Newland said South Dakota was "the center of the universe for the informed
jury movement now," adding, "Everybody is watching what is happening here."

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 last month in Sioux Falls, S.D., of marijuana
possession. 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.

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,
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."

Theophilus opposes Amendment A. "It's basically saying that the law should
apply to one person one day and not to another person another day," he
said. "They're trying to use Amendment A as an end run around the
legislatures, as an end run around democracy."

The proposed amendment would add a few words to a list of familiar rights
in the South Dakota Constitution, and its opponents say it is artfully
drafted to appear innocuous. The amendment would allow defendants "to argue
the merits, validity and applicability of the law, including the sentencing
laws."

Opponents of the amendment, which include most of the establishment bar in
South Dakota, say it is anti-democratic in allowing a small group of people
to decide the wisdom of a law.

Courts have been almost uniformly hostile to nullification arguments.

"We categorically reject the idea that, in a society committed to the rule
of law, jury nullification is desirable or that courts may permit it to
occur when it is within their authority to prevent," Judge Jose A. Cabranes
of the Court of Appeals for the 2nd Circuit, in New York, wrote in 1997.

The lawyers in Ducheneaux's case have mixed feelings about it.

"I think there is some merit to his defense," said Theophilus, the
prosecutor, referring to the defendant's argument that he had a medical
need for marijuana.

Moran, who represented Ducheneaux, said he is not sure how he feels about
Amendment A.

"It could be very beneficial in some cases," he said. "But what sort of can
of worms does it open?"