BILL WOULD LET S.D. JURIES OVERRULE LAW

PIERRE, S.D. - A measure on the South Dakota ballot this November would
allow defendants to tell juries they can disregard a law if they don't like
it, a prospect that has the legal profession aghast.

"Amendment A" would let people accused of crimes argue that a law should
not apply to their circumstances or that it has no merit.

In the past, when juries appeared to override law or evidence, it has been
called jury nullification.

The proposed amendment to the South Dakota Constitution was put on the
ballot after more than 34,000 signatures were gathered by a group that
includes at least one advocate of legalizing marijuana use. The idea could
also appeal to the libertarian right, tax protesters, gun owners, and
abortion foes.

Opponents say the measure would cripple the legal system.

"It is very offensive to those of us who believe in the constitutional form
of government and common law," said Robert Miller, a former chief justice
of the state Supreme Court. Miller said the measure may be unconstitutional.

"I think it has a lot of appeal for the small segment of our population
that has no trust for government and especially no trust for courts and
lawyers," he said.

Jury nullification is not a new concept. Over the years, juries refused to
convict people who harbored runaway slaves before the Civil War, sold
alcohol during Prohibition, or resisted the draft during the Vietnam War.

But according to legal specialists, no state has a statute allowing jury
nullification. At least three states - Indiana, Maryland, and Georgia - say
in their constitutions that juries can judge both the law and the facts.
But none of those states makes use of the practice, which fell into
disfavor after an 1895 US Supreme Court decision that frowned on jury
nullification.

Among those who helped get the measure on the ballot in South Dakota is Bob
Newland, a Libertarian candidate for attorney general who favors marijuana
legalization. He also backed a ballot measure to legalize industrial hemp,
a close cousin of marijuana.

"I don't care what the crime is, people have the right to say as a
defendant that they did this act for whatever reason and let the jury sort
out whether any damage was done," he said.

He and other supporters contend that allowing jurors to judge laws would be
the ultimate check and balance in democracy. They say lobbyists influence
the passage of most state laws, while average citizens have little or no say.

"There are already a vast number of protections for a criminal defendant,
but the one defense he should not be allowed is, 'Yeah, I broke the law, so
what?"' South Dakota Attorney General Mark Barnett said.