Pubdate: Sun, 23 Sep 2012
Source: Union Leader (Manchester, NH)
Copyright: 2012 The Union Leader Corp.
Note: Out-of-state letters are seldom published.
Author: Shawne K. Wickham


Criminal defense attorneys predict New Hampshire jurors routinely 
will be told they have the right to find someone innocent even if the 
state proves its case because New Hampshire has passed what appears 
to be the nation's first "jury nullification" law.

Earlier this month, a Belknap County Superior Court jury found a 
Barnstead man innocent of felony drug charges after the judge 
instructed jurors they could decide that acquittal was "a fair 
result," even if the state had met the burden of proof.

It's a legal concept known as jury nullification, a power that 
experts say has resided in the U.S. Constitution since the nation 
began but is rarely applied in modern courtrooms.

And it's the basis for a new state law that permits the defense in 
all criminal cases "to inform the jury of its right to judge the 
facts and the application of the law in relation to the facts in controversy."

Chuck Temple is a professor at the University of New Hampshire School 
of Law, where he is director of the criminal practice clinic. In his 
27 years of practice, he said, he has always asked judges to instruct 
juries about nullification - but has never had a judge do so.

Temple said the new law, which takes effect Jan. 1, "changes the 
landscape of how criminal cases will be argued."

Before, he said, "in the vast majority of criminal cases, there would 
be no arguments regarding jury nullification. ... Now, it's going to 
be an everyday occurrence in criminal jury trials."

The language of the new law is "rather inartful," never actually 
mentioning nullification, Temple said. Still, he expects defense 
lawyers will start telling jurors about it right away; he plans to 
raise it in a trial set to start Monday in Merrimack County Superior Court.

"I wouldn't be doing my job if I didn't," he said. "It's just another 
seed I can plant in their minds in terms of what the fair thing to do 
is in a criminal case."

Attorney Mark Sisti, who represented the defendant in the Belknap 
County case, said the verdict was "an example of just how powerful 
jury nullification really is."

With the new law, Sisti said, he expects to see other acquittals come 
through jury nullification, in marijuana possession and statutory 
rape cases, for instance. And, he said, "I can envision scenarios 
even in murder cases...."

Judges have always had the discretion to give a jury nullification 
instructions, Sisti noted; "It's just that they have not done that."

Under the New Hampshire Bar Association's Criminal Jury Instruction 
guidelines, here's what judges may instruct jurors: "Even if you find 
that the State has proven each and every element of the offense 
charged beyond a reasonable doubt, you may still find the defendant 
not guilty if you have a conscientious feeling that a not guilty 
verdict would be a fair result in this case."

Jury nullification is "a historical prerogative of the jury," but 
that "does not mean that a jury must be informed by the judge of that 
power," the guidelines note. Such instruction is "best given only 
when it is requested by a defendant or when the nature of a 
particular case otherwise warrants it."

As of the new year, however, defense attorneys here can bring it up 
themselves. "It's a good tool, and it's been a long time coming," Sisti said.

In fact, the new law nearly died in committee shortly after it was 
first introduced in 2011.

The original language would have required the court in all 
proceedings to "instruct the jury of its inherent right to judge the 
law as well as the facts and to nullify any and all actions they find 
to be unjust."

The House Judiciary Committee unanimously voted the bill "inexpedient 
to legislate" on Feb. 16, 2011. Just three weeks later, however, the 
same committee voted, 17-1, to pass an amended version of the bill.

What happened in between?

"What changed was that somebody pointed out that it was in the 
Republican platform that we're for jury nullification," recalled Rep. 
Gregory Sorg, R-Easton, who was vice chairman of the committee at the 
time. "I guess it came down from Republican leadership they didn't 
like that result."

Sorg, who is a real estate lawyer, said he and other committee 
members thought existing jury instructions were sufficient. And he 
worried about the message that passing a nullification law would send 
to would-be jurors.

"We're inviting them to tell us we passed bad laws," he said. "We're 
inviting them to nullify the work we did, maybe on a whim. And that 
just doesn't sit right."

Still, Sorg ended up voting for the amended version that didn't 
mention nullification but required the court to "instruct the jury of 
its right to judge the facts and the application of the law in 
relationship to the facts in controversy."

By the time the Senate passed the measure the following January, the 
obligation had shifted from judges to the defense to inform the jury 
of that right. And a conference committee's final version, which Gov. 
John Lynch signed into law on June 18, applied it only to criminal cases.

Rep. Lucy Weber, D-Walpole, was the sole "no" vote when the House 
Judiciary Committee passed the bill the second time around.

"We are a nation of laws, and I think that the laws are there for all 
of us and I think they ought to be followed," she said. "And to 
encourage people to ignore the law, I think, is a dangerous thing."

"If we have laws that are unjust, either clearly unjust on their face 
or as they're applied, then you go to the Legislature and you change 
the law," Weber said. "You change it for everyone."

Dick Marple, a former Republican representative from Hooksett, is the 
state contact for the Fully Informed Jury Association, which promotes 
jury nullification.

Marple said New Hampshire is the first state to pass such a statute, 
a step he sees as "restoring a little justice to the system."

"Because the jury is the conscience of the community," he said.
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MAP posted-by: Jay Bergstrom