Criminal Justice

New Hampshire Jury Acquits Pot-Growing Rastafarian


A few months ago, New Hampshire Gov. John Lynch signed 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."

[Thanks to Jason and Jared Bedrick for the tip.]

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  1. Wow. There is hope.

    1. Yes, there is. Hopefully this will begin to spread among other states much like ‘shall issue’ CCW has.

  2. This is totally awesome. I can’t believe how good the New Hampshire law is on this.

    In the excessively optimistic view, this could end the drug war from the bottom up.

    I live in Texas, where the task is much harder, but I mention this idea to anyone I know who has a jury summons. The key is to get through voir dire without perjuring yourself.

    1. The key is to get through voir direthe trial without perjuring yourself. getting convicted of perjury.

      The current system does all it can to deny accused of a fair trial. So I don’t have any moral problem with lying. Just don’t get caught.

      1. C’mon!

        Do you think the police and prosecutor would go through the trouble and expense if the accused wasn’t guilty?

        The trial is just a formality. You know, like the guy at the car dealership letting you talk him down a couple hundred bucks.

        Everyone is guilty until proven innocent.

  3. [OT] I have an unusual amount of ads on here for “Fluke” tools.

    Could this be because of the many mentions of Sandra Fluke at the Democratic suck fest?

    That just seems funny to me.

  4. Nice. Glad to see that law making a difference.

  5. Please let this be a trend and not an aberration.

  6. The jury, which deliberated for six hours on Wednesday afternoon and Thursday morning, twice asked to hear the instruction again.

    That’s what I find the most stunning part of this report. It’s like everybody thinks legalistically now, and when given an instruction that says they can use their conscience, they start to pick at that to decide, “Hmmm…exactly what does that mean?” It’s like you tell your barber, “Give me a haircut that makes me look like something halfway between Mitt Romney and Al Sharpton, or, if you can’t do that, whatever you think would look good.”, and then the barber asks you to repeat that instruction twice.

    1. “What? Legislation isn’t magic? Someone can be guilty as sin, but we can find him not guilty because while he disobeyed legislation we don’t believe he committed a crime? I thought the definition of a crime was disobeying the government, even if it didn’t affect anyone else. Can you repeat the instructions please?”

  7. This is about giving the power back to the people!

    Congratulations to New Hampshire!

    If you are a libertarian, who believes New Hampshire is going the right direction, then you should look into the “Free State Project”.

    The “Free State Project” is an effort to move people who believe in Liberty to New Hampshire. If I wasn’t a Mad Idaho Man, I would be moving there myself right now!

  8. This is proof that the NH Free State Project is working.

    If you love liberty, you should really take a serious look at

    We’re concentrating thousands of liberty-loving activists all in one geographic location and already (with only 1,000+ here) are making an impact.

  9. If you sincerely believe that prohibition is a dangerous and counter-productive policy then you can stop helping to enforce it. You are entitled?required even?to act according to your conscience!

    * It only takes one juror to prevent a guilty verdict.
    * You are not lawfully required to disclose your voting intention before taking your seat on a jury.
    * You are also not required to give a reason to the other jurors on your position when voting. Simply state that you find the accused not guilty!
    * Jurors must understand that it is their opinion, their vote. If the Judge and the other jurors disapprove, too bad. There is no punishment for having a dissenting opinion.

    “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.” ?John Adams

    We must create what we can no longer afford to wait for: PLEASE VOTE TO ACQUIT!

  10. Jury nullification was originally part of our legal heritage from England. It started to erode when abolitionist juries would not find people guilty who helped runaway slaves. The final nails in the J.N. coffin came with the prohibition of alcohol, as many juries would not find local moonshiners and rum-runners guilty. That really P.O.’d the government forces. How dare the people not bow down to the law as written.

    Justice and legality are often not equal.

    As to the religious aspect of this case, the whole war on drugs is based upon certain religious groups lobbying Congress to get their version of religion (drug use is immoral therefore it should be illegal) put into secular federal law, the Harrison Narcotics Act of 1914. That seems to me to be a direct violation of the First Amendment’s “establishment” clause.

    According to Joseph D. McNamara of the Hoover Institution, before the Harrison Narcotics Act there was no criminal justice problems associated with drug manufacture, sales, or use … excpet for alcohol, of course. Now, with the anti-drug laws in their 10th decade, America is the number one jailer in the world due to these religious-based, anti-inalienable rights laws.

    Yes, in America we are free … free to do whatever the government allows us to do.

  11. Thus is totally wrong, how can a Judge inform a Jury before taking action? this is not how the court is suppose to run the room, justice must previal!

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