September 23. 2012 12:12AM

Lawyers: 'Nullify' to be common refrain in criminal court cases

New Hampshire Sunday News

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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Shawne Wickham may be reached at