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staff reporter A new hampshire bill that would have required judges to instruct juries that they have the right to acquit a defendant even if the prosecution has met its evidentiary burden-in effect codifying jury nullification-was voted down last week in the state Senate Judiciary Committee. The 3-2 vote came as a surprise because three of the five committee members had sponsored the bill and the house had passed it overwhelmingly by a vote of 220-149. In New Hampshire, every bill is entitled to a full floor vote. It is scheduled to go to the full Senate May 29, but its sponsor is not hopeful of approval. New Hampshire juries already are implicitly instructed that they have the right to nullify a law if they think a defendant does not warrant punishment. The legislation would have made that option direct and clear, and apparently too explicit for those who opposed it. While jury nullification in the United States predates the American Revolution, and all juries have this power, courts are loath to allow attorneys to argue to jurors that they are the final arbiters of community standards. Even in Indiana and Maryland, the two states where constitutions give juries the right to decide the law and the facts of a case, explicit jury nullification instructions are not given. House Bill 122 had passed the New Hampshire House on March 25. It was an identical bill that was voted down right after a public airing before the judiciary committee. Tony Soltani, a Republican sponsor of the House bill, and an attorney in Epsom, N.H.’s Soltani Mosca, thinks the jury instruction now in use, known as the “ Wentworth instruction,” is too subtle. Under Wentworth, a jury is instructed that it “must” acquit if it has a reasonable doubt that an element of a crime has been proved. But if the prosecution has proved all elements beyond a reasonable doubt, then the jury “should” convict. ‘Sea of flannel’ Soltani, from a rural county, thinks it’s only the college-educated, urban jurors who understand the flexibility Wentworth allows. “The ‘sea of flannel’ juries in the rest of the state don’t understand,” he said before the Senate committee vote, describing working-class, rural jurors who often dress in flannels when they come to court. “So we think there’s a disparity that we want to correct by making the right explicit.” But New Hampshire Attorney General Peter Heed disagreed, saying that “my experience is different.” He asserted that he had seen juries nullify laws throughout the state. Soltani, a former police officer and local prosecutor, thinks that jury nullification is a safety valve against overzealous prosecutors who charge people for victimless crimes. As examples, he cited gambling, liquor violations and strict enforcement of marijuana laws. “In Massachusetts, jury nullification was used to acquit people charged under the Fugitive Slave Act,” he said. But he also acknowledged that those who lynched African-Americans also won acquittals when juries nullified laws. “It’s politically and racially neutral,” Soltani said. “Sometimes it protects bad people, but more likely it will protect people who need that protection. No one’s going to nullify a child molester.” Major opposition came from the attorney general, the New Hampshire Bar Association, county attorneys, police and sheriffs, said Soltani. The proposed controversial addition to Wentworth was: “I emphasize the word ‘should’ because you as jurors have the absolute right to decline to enter a verdict which could do violence to your conscience, even if you find that the state has proven its case beyond a reasonable doubt.” “It goes over the top,” Heed asserted before the bill went down. “It actively urges and encourages each and every jury to make a determination of the fairness and reasonableness of the laws associated with a case,” Heed said. “It turns each trial into a mini-referendum.” Heed said he’d never seen a bill unanimously passed by the Legislature, so how could one expect juror unanimity on any given law? He added that “[i]t would just take one juror who disagreed to hang a jury. It opens a hornet’s nest of issues. Where do you draw the line? What if a juror disagreed with the law that a defendant has the right to remain silent? Its practical effect would be devastating.” Post’s e-mail address is

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