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Come November, South Dakota voters will make known their views on an issue that the legal profession has long been loath to look squarely in the face: jury nullification. To date, the debate over Amendment A seems to have generated more heat than light, with members of the South Dakota bar painting the proposal as one step removed from anarchy and accusing its principal backer, Bob Newland, the Libertarian candidate for state attorney general, of attempting to defraud the public. Newland, whose missteps have made him an easy target, has lobbed back fraud accusations of his own — and then some. South Dakota juries, like all juries in state and federal courts, already have the power of nullification. That is, they can acquit a criminal defendant even in the face of overwhelming evidence that he violated the letter of the law. But if the amendment passes, juries in South Dakota can be told that they have the power to ignore the law. Amendment A would allow a criminal defendant to ask the jury for an acquittal on the ground that a mechanical application of the law to his case would result in an injustice. It does that by adding a phrase to the state constitution stating that “the accused shall have the right … to argue the merits, validity, and applicability of the law, including the sentencing laws.” Nullification raises a number of questions. Is it a jury’s right, or merely something that can’t be prevented? Is instructing jurors about nullification “like telling children not to put beans in their noses?” U.S. District Judge Jack B. Weinstein of the Eastern District of New York once quipped in a 1993 article. “Most of them would not have thought of it had it not been suggested,” he wrote. Or is keeping jurors in the dark “like trying to keep teenagers from finding out about sex?” — a question posed by attorney Clay S. Conrad of Houston’s Lamson & Looney in his 1998 book “Jury Nullification.” “If they do not learn about it from a responsible source,” Conrad went on, “they are likely to learn about it on the streets.” Is nullification democracy in action, giving the community a check on the power of legislatures and prosecutors? Or is it anti-democratic, allowing a handful of individuals to negate the work of legislators elected by the multitude? Because those questions remain unsettled in the law, Andrew D. Leipold, a law professor at the University of Illinois who generally is leery of jury nullification, nonetheless admires South Dakota for bringing the issue out into the open. The way the debate has played out, however, is arguably less than admirable. THE ADVOCATE Newland, 54, who makes his living as a free-lance ad writer and photographer, heads the South Dakota chapter of the National Organization for the Reform of Marijuana Laws and has run for several statewide offices on the Libertarian ticket. Despite a letter from a state official to the contrary, he insists that he need not be an attorney to serve as attorney general. In any event, he has no illusions about his chances, seeing his candidacy as a platform for Amendment A. A September poll by the Sioux Falls Argus Leader put his support at 2 percent; no polls have been conducted on Amendment A. Newland claims to have more than 35,000 signatures in support of the amendment. That represents about 11 percent of the South Dakotans who voted in the 2000 election. The secretary of state confirms that he has at least 26,019, but stopped counting once that minimum requirement was reached. Asked why Amendment A is necessary, Newland points to the conviction of Matthew Ducheneaux, a quadriplegic arrested in 2000 for possession of marijuana. A South Dakota magistrate recommended that he be allowed to present medical testimony that marijuana is the only effective treatment for his muscle spasms. A trial judge disagreed, preventing Ducheneaux from offering his medical justification. Ducheneaux was convicted of a misdemeanor in August. Ducheneaux may not make the ideal Amendment A poster child, however. Matthew Theophilus, the Minnehaha County state’s attorney, said that he felt compelled to prosecute because a police officer witnessed Ducheneaux sharing a joint with a friend at a crowded outdoor jazz festival and in the presence of the friend’s minor child. Because the arrest drew a lot of attention, dropping the charges would have sent a public message that a medical condition could serve as a “get out of jail free” card, he said. Theophilus says the justice system took account of Ducheneaux’s special circumstances in sentencing. Prosecutors stipulated to much of Ducheneaux’s medical evidence and did not ask for jail time. Though Ducheneaux faced a maximum of one year’s incarceration and a $1,000 fine, he got a five-day suspended sentence. THE OPPOSITION Whatever weaknesses the Ducheneaux case may have had, at least it actually happened. Thomas Barnett, executive director of the State Bar of South Dakota, says that many of the injustices cited by Newland are nowhere to be found or are distorted beyond recognition. On his Web site, in statements to the press and in a state-sponsored informational pamphlet, Newland has focused on three cases (to quote from the pamphlet): “an elderly man convicted of ‘cruelty to animals’ after using his cane in defense against an attacking dog; parents convicted of ‘child pornography’ after taking family photos of their toddler in the tub; a lady convicted under the ‘open container’ law after collecting empty beer cans along the road to use in making novelty hats.” Barnett says that the child-pornography and open-container cases are “not reported anywhere in the world.” Barnett says that Newland was able to put his finger on a South Dakota animal cruelty prosecution, but the defendant, who brandished a hockey stick and not a cane, was the attacker and not the victim. Newland says he learned of the cases by word of mouth and still believes in them despite his inability to supply details about any but the animal-cruelty case. According to Barnett, the state Bar and all reputable legal organizations in South Dakota, including the criminal defense bar, oppose Amendment A. FIRING BACK Newland has fired back with accusations of his own. In September, he sued Secretary of State Joyce Hazeltine, asking that she be ordered to retract the informational pamphlet because of falsehoods in the “con” statement, particularly the claim that under Amendment A, “a jury could … impose a trivial fine for murder.” For good measure, Newland filed a bar complaint against the author of the statement, attorney Robert B. Freiberg. Newland acknowledges that nothing in Amendment A would prevent a murder defendant from invoking it. Even so, he thinks that Freiberg’s statement is false because judges impose sentence in South Dakota, not juries. He concedes that the amendment would allow defendants to challenge sentencing laws before the jury. Still, he maintains that language does not put sentencing power in the jury’s hands, but means only that a jury could acquit because a sentence is too harsh or because the cost to taxpayers of incarceration is not merited by the offense. Newland meets objections by hammering home a central theme: However much defendants may try to abuse Amendment A, we can still be sure that justice will be done because juries can be trusted. If the Amendment A debate were more elevated, what arguments might we hear? For one thing, Conrad, the lawyer-author, has marshalled evidence suggesting that Newland may be right to have trust in juries. Critics of nullification often point to Southern juries who acquitted lynch-mob leaders and the murderers of civil rights activists. Conrad doesn’t defend those verdicts in his book but thinks the blame lies mostly with biased judges and half-hearted prosecutors. He notes, for instance, that federal prosecutors were sometimes able to make charges stick where their state counterparts had failed, even though the federal courts drew jurors from the same communities. Leipold opposes jury nullification because he isn’t sure if juries use it more often to correct injustices or to give vent to racial and other biases. Moreover, even if juries rarely nullify, he thinks, nullification exacerbates a deleterious and largely unacknowledged effect on criminal justice, putting a large class of cases — criminal acquittals — beyond appellate error-correction. He rejects the conventional view that the double-jeopardy clause requires that acquittals be final and argues that what’s really at work is the judiciary’s reluctance to invade the jury’s nullification prerogative. For Leipold, whatever Amendment A’s shortcomings, it helps bring nullification’s unacknowledged effects to light.

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