SOUTH DAKOTA TO VOTE ON EXTENDING JURY RIGHTS

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. 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."

Mr. 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 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. "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."

Mr. Ducheneaux emphasized the medicinal power of marijuana. "It's instant
relief for everything," he said. "It even stimulates the mind for thinking."

All he asked, he said, was to be able to make these arguments in court.

"I think they're violating my constitutional right of making my defense and
proving my case," Mr. Ducheneaux said. He is appealing his sentence, which
requires him to abstain from marijuana for a year.

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 antidemocratic in allowing a small group of people
to decide the wisdom of a law.

Mr. Newland said a more general approach was unrealistic, given the
hundreds of new laws enacted each year.

"One option is to go to the Legislature and argue for the repeal of a
single bad law," he said. "The other option is to allow people to argue
during the defense portion of the trial that the law in question is flawed,
misapplied, or that `yes, I did this, but if you convict me I'm going to
jail for a long, long time.' "

Paul Butler, a former federal prosecutor in Washington who is now a
professor at George Washington University Law School, supports the
initiative. He said no one disputes the idea that juries have the practical
power to nullify laws in given prosecutions, because their deliberations
are secret and unreviewable.

"I have always thought that the current state of the law is perverse,"
Professor Butler said. "It's sort of like a secret power. To the extent
these initiatives tell juries about a power they have, I'm in favor of them."

In his academic writing, Professor Butler has encouraged jury nullification
in some drug possession cases as a sort of protest against what he says are
draconian drug laws that disproportionately affect African-American men. He
says he has mixed feelings about drug distribution cases and opposes
nullification in cases involving violent crime.

Professor Leipold of the University of Illinois said creating a right to
jury nullification while hoping it will be applied sensibly was wishful
thinking.

"It's like giving someone a credit card with no limit on it and saying, `Be
very careful how you spend it,' " he said.

In colonial times and in the early days of the Republic, American juries
played a more active role in interpreting and applying the law. In the
libel trial of John Peter Zenger in 1735, for instance, Mr. Zenger conceded
that he had printed defamatory matter, which under the law at the time
required conviction. His lawyer urged the jury to interpret the law to
allow proof of truth as a defense. Mr. Zenger was acquitted.

Professor Leipold said it was a mistake to draw too many lessons from the
Zenger case. "All we do is look back on the cool cases," he said. "We don't
look back at the cases where juries refused to convict the killers of
Native Americans."

Indeed, said David A. Pepper, who has written on the history of jury
nullification, the American experience with the phenomenon has been
decidedly mixed. Juries have acquitted people who harbored fugitive slaves
and members of mobs that lynched black men. They have gone easy on people
prosecuted on alcohol charges during Prohibition and on men accused of
domestic violence.

More recently, 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 Second Circuit, in New York, wrote in 1997.

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

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

Mr. Moran, who represented Mr. 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?"