Understanding Jury Nullification

Juries can deliver a message to the court about unpopular laws



Illustration by Brittany Inglese

A New Orleans mayor famously warned federal officials after they closed down several well-established houses of prostitution that “you can make it illegal, but you can’t make it unpopular.” Well, in New Hampshire and around the country, that forecast may well be applied to marijuana.

The times are changing. Polls consistently show a growing majority of people support marijuana legalization. The New Hampshire House of Representatives recently made history by becoming the first legislative body in the country to endorse legalizing possession of small amounts of cannabis. Colorado and Washington did the same thing by voter referendum. But don’t light up that joint quite yet. The bill faces another House vote, a tough fight in the Senate and a veto by Gov. Maggie Hassan.

This leaves New Hampshire in a bit of legal quandary. Is growing popular support running headlong into the region’s toughest marijuana prohibition laws? It begs the basic question: Are widely unpopular laws enforceable?

The question is both theoretical and practical. Will growing grassroots support for changing cannabis laws have more influence over politicians or the judiciary? Will a new state law that permits explicit instruction to juries that they have the right to thumb their noses at the evidence if the law itself is unjust render the state’s marijuana possession laws meaningless? And, are these laws going to be heaped on the dump pile of unenforceable, antiquated laws that ban things like adultery?

But laws themselves may not be that relevant because by and large lawyers and prosecutors admit that the state’s maximum marijuana sentencing laws are routinely ignored. It is in part because New Hampshire has such harsh laws — possession of any amount of pot is a Class A misdemeanor punishable by as much as one year in jail and $2,000 fine, and possession of less than one ounce with the intent to sell is a felony and carries a maximum sentence of three years and $25,000 fine. Neighboring New England states have decriminalized possession of small amounts of cannabis.

In the fall of 2013, Belknap County brought felony drug manufacturing charges against a piano-tuner and subsistence farmer from Barnstead. Courtly and without a prior record, Douglas Darrell, a practicing Rastafarian, openly admitted on the stand to growing and using marijuana for religious and medicinal purposes. The case was a slam dunk on the facts, but Darrell’s attorney, Mark Sisti, argued the case was about justice, not law. His defense caused the judge to remind the jury of their right to acquit the defendant by “nullifying” the law. “Getting jury instruction was key,” Sisti says, so it “was not hypothetical.” It wasn’t — it was central to the case and the jury acquitted Darrell.

"It begs the basic question: Are wildly unpopular laws enforceable?"

The jury’s indisputable power to decide cases is an age-old principle dating back to the 1600s when a Colonial judge jailed an entire jury for not convicting William Penn for preaching Quakerism. Eventually the jury prevailed and the legal authority permanently shifted to the jury. They became the final arbiter of cases, relying on their conscience, not just the law. And while the Supreme Court recognized this as a “historical prerogative of the jury,” there was no responsibility — and some cases a flat-out prohibition — of the court to inform the jury of this right.

The defense was used in the north in the years leading up to the Civil War to make a mockery of the Fugitive Slave Act and more recently when an anti-nuclear power activist was charged and then acquitted of littering while handing out pamphlets. Jury nullification cases are rare and mostly about First Amendment issues with political overtones, says Concord Attorney Chuck Douglas, a former state Supreme Court judge. It occurs when “the facts and law don’t line up,” he says, that there “are gray areas of public acceptance.”

And this division is often reflected in the jury. And that’s what Sisti was literally counting on — with six out of every 10 people supporting legalization of marijuana, it is mathematically difficult to get a conviction from a jury on a sympathetic marijuana case. “It’s de facto decriminalization,” he says, or more pointedly, “sentence nullification.”

With Douglas Darrell,  a non-violent, first offender growing for personal use,  Sisti had a good case with, as he calls it, “a perfect client, perfect case and perfect jury.”

"Nullification is usually a second tier defense: the defendant did it, but finding him or her guilty would be unfair."

Months later, New Hampshire became the first state to pass a law that “permits the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” It is a watered-down version of what many Libertarian-leaning so-called Free Staters want — a requirement to instruct, not just permit that jurors be informed of their powers.

Still the law, which went into effect in January, concerns Deputy Attorney General Ann Rice. “The debate about the meaning [of this law] has already begun,” she wrote in the New Hampshire Bar Association publication last year. Further instruction could lead to juror rejection of such fundamental judicial elements as presumption of innocence, the right to remain silent and the state’s burden of proof. “The NH Legislature, not the jury,” Rice continued, “is responsible for establishing the law … And, once passed, there is a common understanding that the law will apply equally to all.”

Defense attorneys like Richard Samdperil, of Exeter, don’t see much change in the landscape of New Hampshire criminal prosecutions. “Given the choice, defense lawyers still prefer to argue the merits,” he says. “Nullification is usually a second-tier defense: the defendant did it, but finding him or her guilty would be unfair.”

The changes may be more subtle. Sisti says prosecutors will be reluctant to bring morally flimsy charges. Lebanon attorney Rick St. Hilaire, a former Grafton County Attorney, says this balance is always at work. The present grand and petit jury system, he notes, creates a “relationship between the prosecution and the community,” with both learning from each other.

“In most cases, jurors are just like everyone else,” Samdperil says. “If a person breaks the law, the jury wants that person to be punished unless, of course, the jurors themselves can identify with the defendant.”

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