- The Washington Times - Tuesday, October 22, 2002

In contrast to Newton's Laws of Motion, every legal misstep creates an overreaction fraught with greater peril. Watergate begot the monstrous independent counsel statute. O.J. Simpson's murder acquittals occasioned clamor for non-unanimous jury verdicts. And in South Dakota, a few questionable prosecutions have sparked Amendment A, an initiative up for popular approval in November that would crown juries with a right to acquit for any reason irrespective of the evidence. In other words, criminals could go free because the jury despised their victims or sympathized with their motivations, no matter how ugly.

Bob Newland, the Libertarian candidate for attorney general of South Dakota, is the Amendment's chief exponent. But his reasons are unconvincing and worrisome. As quoted in the New York Times (Sept. 22, 2002), Mr. Newland laments: "I'm concerned with the increasing criminalization of more and more behavior, of things that merely annoy other people." Those laws, however, were passed by elected majorities according to democratic methods.

Opponents were free to oppose. They may seek repeal through the legislature or popular referenda. But until the likes of Mr. Newland succeed in capturing the majority, the rule of law cannot tolerate the pardoning of law violations by the law's opponents through jury acquittals.

To do so would be to deny the right of the majority to pass laws binding on dissenters, and each man would become a law unto himself.

It speaks volumes that the prime champions of jury supremacy over the law are groups that have suffered political defeats. This odd tableau features drug legalization proponents, gun control detractors, pro-life organizations, and, defenders of a pristine environment from the onslaughts of civilization. But suppose the law prohibited all abortions, would Operation Rescue urge jury nullification to pardon abortion providers?

Suppose the law prohibited restricting the sale of handguns. Do you think the National Rifle Association would celebrate jury nullification for members of Handgun Control Inc. to pardon attacks on firearms dealers? If marijuana were legalized, who believes NORMAL would applaud jury pardons of anti-drug zealots who vandalized marijuana shops like Carrie A. Nation's took the hatchet to saloons? The questions answer themselves, and strongly suggest that Amendment A is largely a circumvention of democracy by ideological groups momentarily frustrated at their inability to persuade the majority.

Mr. Newland summons in his defense of jury nullification what he characterizes as misguided prosecutions for unblameworthy conduct: a conviction for cruelty to animals based on caning an attacking dog; and, a child pornography guilty verdict based on parental photos of their nude toddler in the tub. According to Newland, the defendants in both cases should have been permitted to urge the jury to acquit by ignoring the law and invoking their personal sense of justice and equity. But the pardon power of South Dakota's politically accountable executive is designed to cure miscarriages of justice. Juries, in contrast, speak for only themselves, act in secrecy, and are not required to justify their verdicts to the public.

The marquee prosecution that begot Amendment A concerned the ailing Mathhew Ducheneaux, a quadriplegic beset by leg spasms. He was convicted of smoking marijuana, which he maintained was medically appropriate to alleviate pain. His sentence was milder than Sancho Panza's simulated flagellations: a suspended sentence of five days in jail. And Mr. Ducheneaux is entitled to seek a pardon. Where is the monumental injustice in his case that cries out for jury nullification?

Amendment A, moreover, is not confined to petty offenses. Juries could acquit for vile crimes, like the despicable murder of young Emmett Till by white racists or the mob killing of Leo Frank. The worst prejudices would be exploited by defendants to triumph over justice.

Jurors who would categorically refuse to consider a defendant's plea for nullification authorized by law would be excluded, just as categorical opponents of the death penalty cannot sit in capital cases. Qualified jurors would thus be inclined toward sympathy for the defense. Suppose in the immediate aftermath of Pearl Harbor, a Californian man was accused of torching the home of a citizen of Japanese ancestry. Jury nullification would have permitted the defendant to urge a not-guilty verdict to avenge the "date which will live in infamy," or to prevent a dilution of Anglo-Saxon blood, or to retaliate for the imagined disloyalty of the victim or his race. The pro-defense jury would probably have acquitted, and sent an official message that havoc against Japanese-Americans risked no punishment.

Jury nullification enthusiasts retort that juries de facto enjoy that power, despite instructions to follow the law, because their deliberations are secret and acquittals are final under the double jeopardy clause of the Fifth Amendment. The antisocial ramifications of unauthorized jury bigotry, while deplorable, are nevertheless confined because the voice of the law still condemns the not guilty verdicts. Amendment A, in contrast, gives government sanction to loathsome jury instincts and lawlessness. By sponsoring lawbreaking, government would invite a breakdown of the social order. Nothing in contemporary prosecutorial excesses comes close to justifying this grim peril of jury nullification.

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