According to Reason magazine, a New Hampshire officials arrested a 59 year old man and charged him with felony drug manufacturing after they discovered he was growing marijuana for personal medical and religious use. They report that he nonetheless escaped jail time because his attorney convinced the jury to nullify the charges against him:
A jury unanimously acquitted Doug Darrell, a 59-year-old Rastafarian charged with marijuana cultivation, after his lawyer, Mark Sisti, argued that a conviction would be unjust in light of the fact that Darrell was growing cannabis for his own religious and medicinal use. More remarkably, Judge James O’Neill instructed the jury that “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.”
That is New Hampshire’s model jury instruction on the nullification issue, but each judge has discretion whether to give it. In this case, since Sisti argued in favor of nullification and the prosecutor, Stacey Kaelin, argued against it, O’Neill agreed to clarify the law by giving an explicit instruction. The jury, which deliberated for six hours on Wednesday afternoon and Thursday morning, twice asked to hear the instruction again. Sisti, who has been practicing law for 33 years, says this is the first time he has persuaded a judge to tell jurors they have the power to vote their consciences.
Reason and other libertarian groups are hailing this verdict as a major victory, but it highlights more than anything the sheer randomness of jury nullification. Darrell won the lottery when he drew an unusual judge that was willing to give a nullification instruction and and equally unusual jury that was willing to nullify, but as Darrell’s own attorney points out, that does not happen very often.
Moreover, while jury nullification may seem a wonderful thing when, as here, it rescues a man from conviction for engaging in an action that most Americans believe should be legal, there is a very dark side to allowing twelve randomly selected individuals to decide whether they want the law to apply or not. As one of the minority of American judges who have endorsed jury nullification warned 40 years ago, such nullification can come at a very high price: “One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks.”