South Dakota rarely makes the news, but a proposed "jury nullification" amendment to the state's constitution currently features in national headlines. The long debate over the role of juries in the courtroom has grown increasingly heated in recent years, with some judges ejecting and even jailing jurors who show too much independence. The South Dakota proposal, while branded as radical in many news reports, evokes an established but neglected legal principle in an effort to settle the debate once and for all.

Jury nullification occurs when jurors refuse to convict a defendant who has violated the law, because they find the law unjust or inappropriate for the circumstances. The practice is sometimes called the "jury veto," since it acts as the people's final check over bad laws. The South Dakota proposal would allow defendants to ask juries to exercise their veto power.

In American history, the most-often cited case of jury nullification was that of John Peter Zenger, who was arrested in 1734 for "seditious libel" against the colonial governor of New York at a time when criticizing politicians was illegal. Despite the defendant's obvious violation of the law, the jury found him not guilty.

The Cato Institute's Clay S. Conrad, who penned the definitive 1998 book "Jury Nullification: The Evolution of a Doctrine," wrote that, "[j]urors in early America knew that if a criminal law was unjust, they could — and should — refuse to enforce it. They could vote their conscience, and as free citizens they were expected to do so."

Conrad quotes John Adams to the effect that, "It is not only [the juror's] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

Since Adams' day, juries have used their power to free people who helped blacks escape slavery, bootleggers who defied Prohibition and young Americans who resisted conscription into the Vietnam War.

But, since the end of the 19th century, judges have taken increasingly strong steps to reign in rebellious jurors, and even to deny that their long-standing authority exists. In an article for Litigation magazine, Prof. James Joseph Duane of Regent University said, "[j]udicial hostility to jury nullification goes well beyond the stone wall of silence erected around the jury box. Case after case has approved jury instructions actually designed to imply that jurors do not have such power at all."

Since Prof. Deane wrote his article, efforts to rein in juries have grown more draconian. In a much-publicized case in Colorado, Laura Kriho, a juror who raised the issue of jury nullification during deliberations in a drug case, was prosecuted for contempt of court. Kriho was eventually cleared, but the ordeal was a shot across the bow to potential jurors everywhere.

Just recently, a Michigan judge sentenced a juror to community service simply for voicing doubts about the credibility of police testimony. Since punishment can't actually prevent jurors from harboring such doubts, it seems intended simply as an exercise in judicial muscle-flexing to show juries who runs the courtroom.

Opponents of jury nullification insist that their position is based in concerns about justice and due process. They charge that independent juries have an unsavory history. "We don't look back at the cases where juries refused to convict the killers of Native Americans," Prof. Andrew D. Leipold of the University of Illinois warned the New York Times.

But Clay Conrad addressed just such concerns in his history of jury nullification. After surveying court cases from even the most racially troubled periods in this country, he concluded, "Historically, independent juries have more often been agents of change opposed to racism than the tools of racists." While conceding that biased jurors have certainly been seated, he found more problems with corrupt police and prosecutors and juries that had been deliberately stacked by the authorities during voir dire proceedings to achieve a predetermined outcome.

After years of attacks from judges and other officials, jury advocates are fighting back. South Dakota's jury nullification ballot measure is primarily a local cause — it was inspired by the conviction of Matthew Ducheneaux, a quadriplegic who smokes marijuana to ease muscle spasms. Even the prosecutor in the case admitted that he had "never seen a defendant more sympathetic than Matthew Ducheneaux." But South Dakota activists drew from ideas and activists assembled by a national movement spearheaded by the Fully Informed Jury Association.

While FIJA helps with efforts to require that juries be informed of their rights, much of its mission is educational. FIJA activists spend a large portion of their time leafleting courthouses. They know that even a single holdout juror out of 12 can save a defendant from a criminal record and prison time. As a result, they're drawing enthusiastic support from the ranks of people who oppose drug prohibition, firearms restrictions, stiff sentencing laws and the rest of the legal spider web that increasingly ensnares American life.

So, whether or not South Dakota voters approve their jury rights measure this fall, backers of the proposed amendment may have already won their battle. The high-profile debate has drawn wide publicity — and the attention of a vast pool of people who will be sitting onjuries in the near future.

J.D. Tuccille is a Flagstaff-based senior editor of The Henry Hazlitt Foundation's Free-Market.Net (http://www.free-market.net/).

— Arizona Daily Sun

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