SOUTH DAKOTA VOTERS MAY LET JURIES SELECTIVELY REJECT THE VALIDITY OF A LAW

In November, South Dakota voters will decide whether to give tax
protesters, medical marijuana users and other criminal defendants a new
right. A proposed constitutional amendment would allow defendants to
concede their guilt but 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 only the
facts but also the wisdom of the law in question. The shorthand term 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,
Libertarian candidate for attorney general of South Dakota and 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.

Robert Hayes, 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. Much of his support
comes from the libertarian right, including gun-control foes. 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 Leipold, a professor at the
University of Illinois College of Law who has written about jury nullification.

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, convicted last month of marijuana possession. Ducheneaux, 38,
who had been caught smoking at a jazz festival in 2000, said he has used
marijuana to alleviate leg spasms since he became a quadriplegic after an
automobile accident.

Ducheneaux's five-day sentence was suspended, but the jury was troubled by
the prosecution, said Chris Moran, Ducheneaux's lawyer.

Prosecutor 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."

Opponents, which include most of the establishment bar in South Dakota, say
it is antidemocratic 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 Cabranes of
the New York-based 2nd U.S. Court of Appeals wrote in 1997.

Moran, who represented Ducheneaux, says 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?"