A few months ago, New Hampshire Gov. John Lync hsigned a bill declaring that “in all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” Although the new law does not take effect until next January, a case decided yesterday in Belknap County illustrates the importance of the nullification power it recognizes. 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. He hopes the new law will make such instructions more common, if not standard.
Darrell was arrested in 2009 after members of a marijuana eradication task force spotted his plants from a National Guard helicopter flying over his home in Barnstead. Sisti tried unsuccessfully to have the evidence suppressed, aguing that the aerial surveillance was illegal because the helicopter flew below what the Federal Aviation Administration considers a safe altitude, thereby violating Darrell’s reasonable expectation of privacy. The Belknap County Attorney’s Office, evidently eager to get rid of a case that involved just 15 plants and no distribution, offered Darrell a series of increasingly lenient plea deals, culminating in an offer that entailed a misdemeanor guilty plea with no jail time or fine. Darrell turned all the offers down, Sisti said, because “he didn’t think he was guilty of anything; it’s a sacrament in his religion.” Instead he went to trial on a charge of manufacturing a controlled drug, a Class B felony that carries a penalty of three and a half to seven years in prison. Darrell’s first trial ended in a mistrial last November due to prosecutorial error. His second trial ended in yesterday’s acquittal.
“Cases like this shouldn’t be brought,” Sisti says. “And when they are brought, I think that safety valve, that nullification safety valve, is very important. Other states had better start waking up, because without it, people are going to be convicted of very serious charges through hypocrisy. The jury’s going to think they can’t do anything else, and that’s wrong.”