Pot Pass

Jury nullification

A New Hampshire law that takes effect this January allows a defense attorney to "inform the jury of its right to judge the facts and the application of the law in relation to the facts." In September a Belknap County jury illustrated the importance of the nullification power recognized by that provision when it acquitted a marijuana grower of growing marijuana.

Doug Darrell was arrested in 2009 after police spotted his plants from a helicopter flying over his home in Barnstead. The Belknap County Attorney's Office, evidently eager to get rid of a case involving just 15 pot plants and no distribution, offered Darrell a series of increasingly lenient plea deals, culminating in an offer of no jail time or fine in exchange for pleading guilty to a misdemeanor. Darrell's lawyer, Mark Sisti, says the 59-year-old Rastafarian turned all the offers down because "he didn't think he was guilty of anything; it's a sacrament in his religion."

So Darrell 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. Sisti argued that punishing Darrell would be unjust in light of the fact that he was growing cannabis for his own religious and medicinal use. Not surprisingly, the prosecution disagreed. 

To clarify the law, Judge James O'Neill read New Hampshire's rarely heard model jury instruction regarding nullification: "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."

The jury, which deliberated for six hours, asked to hear that instruction again on two occasions before unanimously declaring Darrell not guilty. Cathleen Converse, a 57-year-old accountant who moved to New Hampshire in 2004 as part of the Free State Project, told the Manchester Union Leader she and her fellow jurors objected to "the fact that the system was coming down on a peaceful man, and it wasn't right."

Sisti, who has been practicing law for more than three decades, 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.