Criminal Justice

Free Stater Who Helped Acquit N.H. Pot Grower: Jurors Were Thinking About Nullification 'From the Beginning'


The week before last, I noted that Doug Darrell, a 59-year-old Rastafarian who admitted growing marijuana at his home in Barnstead, New Hampshire, had been found not guility of manufacturing a controlled drug after jurors received instructions about their power to acquit even if the prosecution has met its burden of proof. Although Darrell emphasized that he used mariuana as a sacrament and a medicine, one of the jurors recently told the Manchester Union Leader his religion was not a factor in the verdict:

"It was the fact that the system was coming down on a peaceful man, and it wasn't right," said Cathleen Converse, a 57-year-old retired accountant and grandmother who moved to New Hampshire with her husband in 2004 in the first wave of the Free State Project.

Converse was one of eight women on the jury that on Sept. 13 used a legal concept known as jury nullification to acquit Darrell, who is 59.

What disturbed jurors most was testimony that a Massachusetts National Guard helicopter hovering over Darrell's Barnstead home in 2009 had discovered the marijuana plants he was growing for what was described as religious and medicinal use, said Converse, who also lives in Barnstead.

"I was actually appalled," she said. "Because I live nearby, and a military helicopter over his house is over my house, as well."

She said nullification "was in everyone's mind from the beginning."…

As a Free Stater, Converse said, she was familiar with jury nullification and "gave a rundown" on the issue.

In an interview with Free Talk Live shortly after the verdict, Converse said:

Mr. Darrell is a peaceful man. He grows for his own personal religious and medicinal use. I knew that my community would be poorer rather than better off had he been convicted.

The rarely heard jury instruction that Converse and her fellow jurors received, which Belknap County Judge James O'Neill gave after Darrell's attorney, Mark Sisti, raised the issue of nullification, goes like this: "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." Sisti says he hopes the instruction will become more common as a result of a new law, taking effect in January, that explicitly allows a defendant to inform the jury about "its right to judge the facts and the application of the law in relation to the facts in controversy."

State legislators who support legalizing marijuana argue that the Darrell case should help their cause. "It's going to be slow and take a long time," Rep. Timothy Comerford (R-Fremont) told the Union Leader, "but I think eventually our laws are going to catch up with the public's view on this issue." Rep. Mark Warden (R-Goffstown) likewise said the acquittal "shows we need to start being more open-minded and start reflecting the ideas of our constituents." Sisti noted that widespread jury nullification during alcohol prohibition was a harbinger of repeal as "people decided not to be hypocrites anymore."

[Thanks to Richard Feldman for the link to the second Union Leader story.]

NEXT: N.J. Court Reaffirms Right To Record Cops

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  1. And people said the Free State Project would never achieve anything.

    1. The FSP has made great strides in the last 5 years. About 1/4 of the state legislature now consists of libertarian-learners, which is unheard of in modern U.S. politics.

      The real question is WTF was a Massachusetts National Guard helicopter doing not only looking for pot plants, but doing so 50+ miles north of the MA border. I guess little things like “jurisdiction” go by the wayside when fighting the evil herb.

      1. It sounds like they were there at the request of authorities in NH. You know, the ones who prosecuted this guy.

        1. They didnt say “Fuck off hampsherites”?

        2. i haven’t seen any confirmation of this, but i agree it’s almost certainly the case. iow, some sort of mutual aid request.

          it is not at all uncommon for resources to be shared in this manner.

          1. Mutual aid? Like Mutualists? Fucking commies!

      2. The Fourth Amendment’s corpse says “hello.”

      3. Thats part of the “Counterdrug” work the Guard has had some AV assets join in.

        I #$%ing; hate that shite and were I CinC I would nuke that program so fast the National Guard Bureau would think they had been car bombed.

      4. Now they need to turn attention to the BAD THINGS this family is doing.

    2. And people said the Free State Project would never achieve anything.

      I have to admit I’m impressed. Although when you compare it to the state our nation is in aggregate, it’s kind of a fart in a hailstorm.

      But it’s a good thing nonetheless.

      1. So why are they not helping the other Ron Paul supporters at the tea party to fight Agenda 21 and the efforst of CELDF? Is freaking’ pot the only issue they care about????? Seems so. NH is about to be taken over by Agenda 21 and Gail Darrell is a key player in this.

  2. In a world full of bad news for liberty, this feels pretty damned good.

  3. I note this is not April 1, so good for this jury and for this man!

    But I know you’re setting us up for the big nut punch later this week to make up for this story, right, Reason?

    I thought so….

    1. Hold your dogs tight, folks!

      1. Colonel: You better get your head and your ass wired together or I will take a giant shit on you.
        Joker: Yes, sir.
        Colonel: Now answer my question or you’ll be standing tall before the man.
        Joker: I think I was trying to suggest something about the duality of man, sir.
        Colonel: The what?
        Joker: The duality of man. The Jungian thing, sir.
        Colonel: Who’s side are you on, son?
        Joker: Our side, sir.
        Colonel: Don’t you love your country?
        Joker: Yes, sir.
        Colonel: So how about getting with the program? Why don’t you jump on the team and come on in for the big win NUT PUNCH?

  4. You haven’t lived until you’ve seen a Blackhawk hovering over your field.

    1. “How can you shoot [dogs] and [cattle]?”

      –“That’s easy, just lead them a little [more]”

      1. What about womp rats back home?

        1. they’re not much bigger than two meters

    2. Fortunately we had planted clover- and nothing else.

      1. Thing is you can find pot in any middle school, these assholes were out looking for farms to seize.

    3. I’ve seen Marine One over my house, though not hovering. I once smoked weed as they flew over and blew the smoke in their general direction. Though that was during Boooooosh!

  5. Jury nullification is a double edged sword. I bet those Jim Crow South juries felt that a not guilty verdict for a guy who killed a black man was a more fair outcome too. Likewise for the jury in the Rodney King case.

    1. That’s a lot of sand, Tulpa. A lot of sand.

    2. Sigh….

      We have covered this before, they werent practicing nullification because they werent saying the law against murder was wrong, they were just finding a guilty man innocent.

      Jury nullification != rogue jury.

      Jury nullification only occurs in the specific case that a guilty person is found innocent because the law has been judged to be invalid by the jury.

      The judge actually misdescribed jury nullification in his orders.

      1. The judge actually misdescribed jury nullification in his orders

        I wondered about that too. It seemed like an odd turn-a-phrase (turn-of-phrase?) in the way it was worded above. I would think you just have to say, “If you think the law is unjust, and you are not able to find a man guilty because of this, jury nullification.”

      2. You’re misdescribing jury nullification.

        According to the doctrine the jury need not consider the law inherently unjust in all cases, they only need to feel that the application of the law to this case is unjust.

        So there really is no logical difference between the Rodney King jury and this nullifying jury in NH.

        1. can you clarify this for me?

          are you saying the 2nd rodney king (federal trial) nullified ? iow, they found the guys guilty, regardless of evidence because they feared more riots, murders etc.

          or are you saying the first trial (simi valley) was nullification and if so why?

          i’m not sure which point you are making (and it may not be either of these)


      3. Jury nullification only occurs in the specific case that a guilty person is found innocent because the law has been judged to be invalid by the jury.

        That jury that time. So the result is the same, even if the mindset of the jury is different.

        Marijuana prosections will continue in New Hampshire.

        For Jury nullification to be effective, it has to be ongoing and widespread.

    3. We have this argument every time someone gets shot and the Brady Bunch comes out crying for gun control/bans. An instrument, tool, object, or process has no moral agency, a human does.

      Just because One-Tooth Willie and his neighbor/cousins abused jury nullification to free their father/uncle for killing a black man is not an indictment of jury nullification, just the jurors who misused it.

      1. And it’s not Jared Lee Loughner’s guns’ fault that a mentally ill person used them to kill people.

        However, this does not mean we should allow mentally ill people to have guns as our policy.

        1. the issue is WHAT threshold of mental illness should vitiate the right to keep and bear arms, and to what extent does the person’s medical privacy trump the state’s right to know in regards to firearms apps, etc.

          iirc, loughner was never “invol’d” as a danger to self or others. iirc, he was basically saying some weird stuff that made some campus people “concerned” etc.

          plenty of mentally ill people have and should have guns. depression is a mental illness. in and of itself, it shouldn’t mean one can’t keep and bear arms

          this is really one area of the law that is just TOTALLY messed up. i am saying this from personal experience. the different agencies (mental health, dept. of licensing (handle firearms permits) etc. don’t communicate stuff. most states aren’t any better

          so are you saying ALL mentally ill people, or do you have some kind of threshold and if so where?

    4. That may be true, but nullification is a power that juries have always had, whether or not the law explicitly allows it. I think it is good on balance.

      1. All power can be abused. However, nullification serves as a useful check on government. It would work even better if the government weren’t trying to destroy the doctrine.

        1. exactly. those in power, especially “credentialed classes” will fight the right of the “common man” to exert their influence.

          the credentialed classes, attorneys, judges, etc…. many of them believe that only THEY have the understanding and thus the authoritah to decide if laws are invalid or not. they act much like the catholic church that didn’t even want the bible translated into the common language. interpretation belonged solely to the credentialed class (the priests). those priests are much like the “priests” in today’s criminal justice system. after all, nobody in our society is more godlike in power than a judge in his courtroom.

          this is clearly a step in the right direction. that they were actually given instructions that included their right to jury nullification is awesome. consider not too long ago there was a case where a guy was prosecuted for handing out info on jury nullification outside a courtroom (iirc, he was prosecuted for some form of jury tampering).

        2. Seriously, you guys make it sound like the govt is forcing the drug war on an unwilling populace. It is popular as heck.

          If you can reliably get 12 randomly selected people to agree that a law is unjust, you should be able to get rid of it via the democratic process.

          1. i make this point frequently. the war on drugs (apart from MJ) is POPULAR. how many people here attend community meetings? i do, both as a resident where i live, and as a cop, where i work. people are REALLY pissed off about “the drug house on the corner”. if they had their way, we’d be busting in those doors willy nilly and carting those MF’ers off.

            fortunately, the public is coming around to the understanding that MJ is benign ENOUGH (note: it is hardly harmless) that the war on MJ causes significantly more harm than MJ would if we simply left people alone to smoke it.

            plus, they see the revenue possibilities in MJ and considering the amount of money taken in in liquor taxes, that’s understandable.

            a substantial # of the drug incidents we deal with, and incidents in general are called in by homeowners and renters in neighborhoods complainign/reporting on suspected drug activity whether through a longterm basis (we refer to those as narcotics activity reports) and something in progress.

            1. fwiw, our drug unit just made a bust on a huge grow op. a substantial amount of the intel they got, and stuff that established where to look, who to look at, etc. etc. all came from “civilians” in the neighborhood. people would record license plates and times, they would use their iphones etc. to get it on tape (much better proof than he said she said)

              ime, suburban especially homeowners on the whole have FAR from a live and let live attitude when it comes to dopers (and again i am talking about dealers of MJ and all drugs, and user of all drugs. most aren’t super concerned about user of MJ)

          2. You only need 1 of 12 to nullify.

            8% doesnt change many laws.

            For a supposed math guy, you suck at it.

      2. AFAIK in nearly all jury cases the judge specifically instructs the juror against the use of nullification. Telling them to judge the facts of the case, not the merit of the law. That’s what makes what’s happening in NH so remarkable.

        1. At one time, Chief Justice Jay threw out a case because the judge failed to give nullification instructions. Sigh…now one doing it is a pleasant surprise.

    5. I agree with you – I could only justify jury nullification for victimless crimes.

      1. how about in “victim” crimes where the penalty is draconian?

        iow, let’s say WA passed a law that said that if you commit shoplift, it’s a mandatory minimum 5 yrs in prison.

        would that law justify a jury nullifying a shoplift case?

        i would argue yes. even though THERE IS a victim.

        imo, one of the clearest justifications for nullification is when a penalty is grossly disproportionate to the crime

        1. Of course, that would still qualify as a Constitutional violation.

          1. i agree. but given a case where judicial review didn’t find it to be unconstitutional, imo it’s the job of the jury , through nullification to nullify. just giving an example where a REAL crime (vs.a victimless crime) could justify nullifcation, as a counterpoint to Proprietist’s point made above: “I could only justify jury nullification for victimless crimes”

            but i think we’re basically on the same page.

        2. Does the jury even know what the penalty is during the trial? I don’t think they allow that to be brought up by the defense, do they?

          1. That is one of the anti-nullification trends that has happened over the years.

            Some of the earlier English nullification cases were due to penalties being too harsh.

        3. I’m sure the retail stores would be tickled pink that your conscience demands that you let people steal their wares and get off scot free.

          1. i don’t get this threading. is this in response to me?

            fwiw, stores often will NOT call us in “minor” theft cases and/or where a person appears truly destitute etc. and stealing baby formula or something like that.

            in fact, i’ve never even had a shoplift detail assigned where it was baby formula or stuff like that.

            iow, they exercise discretion and they DO have a heart.

            granted, many stores in my jurisdictions we have trained to completely handle the investigation and report themselves. iow, they arrest the person, write the report, get the confession, etc. and send THEIR report to the prosecutor’s office. we need not even respond. which is good, in terms of resource allocation.

            but i would think most retailers don’t want to see somebody get 5 yrs in prison for stealing some cheezy poofs.

        4. Hell, I could find somebody guilty of shoplifting if the penalty was crucifixion in the Walmart parking lot.

    6. Almost any right or system can be described as a double-edged sword, particularly any criminal justice system.

      Prosecutorial discretion, for example. Judge investigators, or separation of investigation and judges.

      It’s all a choice of which sort of errors do you want to allow.

    7. I agree. When the jury votes for injustice, it is unjust. When they vote for justice, it is just.

      I still think they should vote for justice, even when the law is unjust though. Fuck “double edge sword” doubts.

  6. “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.”

    Holy shit. I think I just got a hard-on. For justice.

    1. She is one sexy lady!

  7. jury nullification most definitely IS a two edged sword. however, that’s true of pretty much everything in the criminal justice system. it’s always about tradeoffs, balancing tests, etc.

    that being said, this man is a true patriot. the jury *is* the ultimate “decider”. as much as the credentialed class – attorneys, judges, etc. want to believe otherwise, our system was designed such that ULTIMATELY, when push comes to shove, it is the job of the jury to be both the finder of fact AND the finder of law.

    in cases where laws are just egregious, like this case, imo it’s not merely the right of the jury, it’s the DUTY of the jury to nullify, assuming they feel the same way. clearly this jury did. jury nullification, much like state’s rights has a checkered past. it absolutely is true that juries in the deep south at times may have nullified and facts be damned, they were going to let their racial animus rule. there’s no “easy” answer to that.

    it’s astounding that the jury INSTRUCTIONS were given so as to include mention of jury nullification. that’s awesome

    contrary to what people say here in this thread and in others, there ARE plenty of examples of liberty expanding, and govt. power shrinking in various states, etc. due to case law, legislation (initiatives mostly) etc. don’t let the spotlight fallacy fool you.

    1. for example, in WA state, state power has been severely curtailed in the last decade. cops have lost the authoritah to search a vehicle “incident to arrest’ which was always, imo, a bogus fishing expedition and problematic under the 4th amendment. it used to be OK. it is no longer. ditto for pretext stops.

      iow, it works both ways – due to the war on terra, the war on drugs and the war on domestic violence, we have seen SOME rights erode. otoh, in the same time period, we have seen other rights substantially expanded – a clear example being the right to keep and bear arms.

      1. Cool story, bro

        1. I thought it was pretty cool. Governments losing power is pretty cool if you ask me.

          1. Brevity is cool, bro

          2. it IS pretty cool. don’t let the trolls convince you otherwise. govt. has WAY too much power. when compared to other countries (especially europe) we are way better off, but there has been a lot of slow, steady creep erosion of rights (as well as to some extent expansion of rights, – like the right to keep and bear arms over the last few years)

            every time you read about some fucked up prosecution, it pays to bear in mind that it could NOT have happened without the jury (all of them) “going along” with it.

            and they don’t have to

            THEY have the ultimate power. statists don’t want to even admit that, let alone “encourage it” by giving jury instructions as to nullification.

            huge props to new hampshire.

      2. You still “inventory” the arrestee’s car before having it towed don’t you? The passenger’s compartment is always up for grabs by the arresting coppers. Granted you might not be able to go through the trunk but in many jurisdictions they even do that too all in the name of just taking an inventory. That happens something like to ten people every minute in America, right?

        1. i live and work in WA. we have a right to privacy under our state constitution. we do not search the motor vehicles prior to calling a tow truck. we will ask the person if there are any valuables they want secured.

          having a right to privacy in our constitution, and a state supreme court that doesn’t ignore it, means that in many cases, cops in WA are not doing the kinds of searches that are routine in other states

          1. What, no furtive movements on a man with a gun in a car type calls or such, or maybe possible open containers within the driver’s reach on say a DUI arrest? Come on Dunph, get real.

            And no a”uthoritah” to make “pretext stops” like stopping a suspect with a a dead license plate light in order to get a closer look at what’s going on with him and in his car?

            Please dunph, cut the BS. How long do you claim to have been in the saddle? You aren’t really a mall security guard or such are you?

            1. Searches made “incident to arrest” went out of the cop vernacular decades ago as being constitutionally questionable, dunph. Always work arounds and I bet plenty are pretty regularly used even in your beloved WA (unfortunately).

  8. So, when does the DoJ file federal charges?

  9. I don’t have a problem with them using MJ, but I have a bigger problem with their activism in town meetings where they are pushing for “collective rights and the rights of nature” on behalf of the group called

    Seems that Mrs. Darrell is an activist for CELDF, a law firm that promotes Agenda 21 style ordinances on towns and in new laws in the legislature, propping up HUD grants that would have unelected bureaucrats impose these rules upon us.

    Mark Sisti is a lefty lawyer who I am not surprised defended Mr. Darrell.

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