INITIATIVE PUTS SOUTH DAKOTA LAW ON TRIAL

By JESS BRAVIN Staff Reporter of THE WALL STREET JOURNAL

SIOUX FALLS, S.D. -- Matthew Ducheneaux goes on trial here Tuesday for
marijuana possession, but the jury's verdict could do more than decide
whether the 38-year-old quadriplegic is fined or sent to jail.

Win or lose, his trial will showcase a ballot initiative that could spark a
revolution in South Dakota's criminal laws -- something far beyond measures
authorizing the medical use of marijuana adopted by nine states since 1996.

South Dakota courts barred Mr. Ducheneaux from arguing that his medical
condition, which he says is helped by smoking marijuana, justified breaking
the law. That has made him, supporters say, the "poster child" for
Constitutional Amendment A, a voter initiative on the Nov. 5 ballot that
would authorize every criminal defendant in the state to challenge "the
merits, validity and applicability of the law, including the sentencing laws."

South Dakota is home to only 0.3% of the U.S. population, or 757,000
people. Still, should the measure pass, proponents predict a wave of
similar measures in other states where zero-tolerance law enforcement and
harsh mandatory-sentencing rules have bred distrust of the justice system.

"There are only a few acts that can really be considered criminal," says
Amendment A's chief proponent, Bob Newland, a free-lance
writer-photographer and Libertarian candidate for state attorney general.
Mr. Newland, who has had his own scrapes with the law over drunken-driving
and marijuana possession, envisions defendants telling juries, "'Yes, I did
what they say I did, but I didn't hurt anybody and this is a stupid law.'
If juries are allowed to hear this evidence, then they will refuse to
convict and people will be allowed to go free."

South Dakota's legal and political leadership, fearing that very outcome,
opposes Amendment A. The ballot measure "amounts to anarchy," warns Jim
Abbott, president of the University of South Dakota and the Democratic
gubernatorial nominee. Veteran prosecutor Larry Long, the Republican
candidate for attorney general, calls the proposal "nuts."

While some dismiss the 15-word measure as a long shot, its fate is far from
certain. "In South Dakota, you never can tell," says Frank Pommersheim, a
University of South Dakota law professor. A key factor, he predicts, is
Native Americans, "who often feel they get railroaded" by the justice
system. They are 8.3% of the state's population, but 24.5% of its prison
inmates.

Mr. Ducheneaux, a Minniconjou Sioux who lives on the Cheyenne River Indian
Reservation, was arrested in Yankton Trail Park here two years ago, when a
police officer spotted him smoking pot near a jazz concert.

Confined to a wheelchair since a 1985 car accident ended his hopes of a
rodeo career, Mr. Ducheneaux says conventional medicines were useless in
controlling his muscle spasms. Without marijuana, "my muscles tense up so
bad ... it's like those anacondas that squeeze the air out of your lungs,"
he says.

Mr. Ducheneaux got permission to smoke pot through a federal research
program, but he couldn't find a pharmacy willing to undertake the stringent
procedures required to dispense marijuana through the federal program.

A trial magistrate authorized Mr. Ducheneaux's public defender, Chris
Moran, to mount a "necessity defense," asserting that his client acted to
avoid "imminent or emergent bodily harm," the legal standard in South Dakota.

Prosecutor Matthew Theophilus objected, however, and an appeals court
blocked Mr. Moran from making that argument since the state Legislature
hasn't authorized the medical use of marijuana. Mr. Ducheneaux "is a very
sympathetic defendant," says Mr. Theophilus. But "as South Dakota
prosecutors, it's our duty to uphold South Dakota law as it currently
stands." The misdemeanor carries a maximum penalty of one year in jail and
a $1,000 fine.

Mr. Moran and Mr. Theophilus agree that Amendment A would all but assure
Mr. Ducheneaux's acquittal. And they estimate Amendment A could be invoked
in anywhere from a quarter to half of all criminal prosecutions. In
addition to drug, prostitution and other vice cases, they predict
successful arguments that penalties for domestic assault, a big part of
South Dakota's criminal docket, are too strict.

Currently in all states plus the federal court system, judges tell juries
the bounds of their deliberations. While jurors weigh "facts," they are
sternly warned, as the South Dakota rules say in capital letters, that the
judge "AT ALL TIMES DETERMINES THE LAW."

Except, that isn't precisely so. Even if the accused obviously is guilty,
jurors can acquit, and a judge can't stop it. That's known as "jury
nullification," whereby a jury refuses to convict a defendant of a crime he
or she clearly committed. As Supreme Court Justice Joseph Story wrote in
1835, though jurors lack the "moral right" to do so, they hold the
"physical power to disregard the law ... according to their own notions, or
pleasure."

At times, a wave of jury nullifications has signaled a change in social
attitudes, presaging repeal of unpopular laws. Before the Civil War, juries
in New England refused to convict people who harbored runaway slaves.
Moonshiners were acquitted during Prohibition, as were draft resisters
during the Vietnam War. Jury nullification is appropriate when "a
defendant's conduct is 'unlawful' but not blameworthy," Chief Judge David
Bazelon of the U.S. Court of Appeals in Washington wrote in a 1972 dissent.

Amendment A sprang from a conversation Mr. Newland, 54, had with Larry
Dodge, a co-founder of the Fully Informed Jury Association, which has
unsuccessfully pushed legislation around the U.S. to advise jurors of their
power to ignore the law. Noting that South Dakota required only 26,019
signatures, or 10% of the turnout in the previous gubernatorial election,
to place a constitutional amendment on the ballot, Mr. Newland says, they
tapped a network of antigovernment believers across the U.S. to raise
$65,000 for a petition drive. The odds looked good; since 1972, when South
Dakota first allowed voter initiatives to amend the state constitution, 10
measures have qualified for the ballot, and half have passed.

In recent years, financier George Soros and others have bankrolled
initiatives to decriminalize the medical use of marijuana. Ethan Nadelmann,
an adviser to Mr. Soros and executive director of the Drug Policy Alliance
in New York, says jury-nullification initiatives may offer another
approach. But he worries that Amendment A could encourage disregard of laws
he supports, such as environmental regulations.

Indeed, Amendment A's appeal is hard to characterize as liberal or
conservative. "The jury-selection process tends to eliminate knowledgeable
jurors in favor of ignorant jurors," Rich Weixel, a 51-year-old Sioux Falls
electrician and a Democrat, told Mr. Newland at a campaign stop. Mr. Weixel
believes "right-wing racists" would take advantage of Amendment A to evade
taxes, firearms restrictions and antidiscrimination laws.

Adam Zobel, 24, a Republican and student at South Dakota State University,
says Amendment A could prove a remedy to overzealous law enforcement in his
hometown of Forestburg. If farmers there "shoot a deer for getting into the
crops, they get prosecuted for poaching," he says, with a hint of outrage.