Live Free and Nullify

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Jury nullification plays a vital role in a healthy legal system. It allows people to vote their conscience and nullify bad laws, thus sending a strong message to legislators. This is how alcohol prohibition was overthrown. This is how marijuana prohibition will be overthrown.

On April 13, 2011, a jury in New Hampshire's Grafton County Superior Court brought residents one step closer to this reality. Bob Constantine, a fifty-two year old man with a bushy white moustache and the slow gait of a man with bad hips, was charged on September 4, 2009 with two felonies for "Manufacturing a Controlled Substance," and one misdemeanor count of marijuana possession.

"I don’t know how anyone could manufacture a plant, but that’s what the RSA under chapter 318 of the law says," Mr. Constantine said in a blog post soon after his arrest. "In my case it could carry a sentence of up to 7 years in prison and a $100,000 fine for growing a plant. I know that well over 90% of people in my situation take the plea. That’s what they want you to do. They just want you to bow down, tell them they’re right, put your tail between your legs, and say, u2018Uncle.' I almost did, but I can’t. They offered me a very nice plea. You know they were going to give me 60 days, a small fine, all I needed to do was say, u2018Uncle.' I almost did, but I couldn’t do it. I would have had to live with myself for the rest of my life. I know what they’re going to do to me is much greater that it would have been, but I’m a moral person, and I can’t give in to something that’s so wrong."

This principled individual chose to take the matter to trial, at great personal risk to himself. More than twenty local pro-liberty activists – many of whom do jury nullification outreach at New Hampshire courts on a regular basis – came to show their support. Outside, two cars with visible pro-jury-nullification posters were parked in front of the court house. People held signs saying: "7 Years For Gardening?" and "Good People Nullify Bad Laws."

On the first day, activists were forced through double security-theater proceedings, both at the main and court entrances. Bailiffs with handheld metal detectors refused to let in any cameras, cell phones or computers with cameras, by order of Judge Bornstein. Fortunately, a local activist, Jason Talley of Talley.TV had jumped through the necessary hoops and cameras were positioned in the courtroom, a round chamber with ornate wood panelling with recessed doors. Dropping from the ceiling was a giant round cement circle which looked like the cuff of a sleeve. I kept hoping a Monty-Pythonesque "Hand of God" would descend and smite the State.

During the three-day trial, Mr. Constantine represented himself, with a "public defender" at his side. In his eloquent opening statement, he appealed to the conscience of the jurors. During the trial, the persecutor – I mean, prosecutor, Melissa Pierce – made numerous objections – even objecting to the question "Do you believe in God?," which was especially galling since all witnesses swore an oath to God before testifying.

The trial was a text-book case of government overreach. "No victim, no crime" becomes more than a slogan when every single witness called by the state is – big surprise – a state employee. Three were undercover narcs who refused to testify on camera.

The entire case against Mr. Constantine hinged on an informant – cutely referred to by the prosecutor as a "concerned citizen." This is one of the most insidious aspects of the modern American legal system. It boils down to the state bribing one individual to roll on another in the hopes of some leniency for themselves.

So we have witnesses who are so proud of what they do professionally that they refuse to testify on camera. We have a snitch who pleads the fifth. We have objections to questions like "Do you believe in God?" But Mr. Constantine is on trial for growing a plant? He was also barred from mentioning anything about the medicinal benefits of marijuana. (Although he did manage to show the cover of a book entitled Marijuana is Safer: So Why Are We Driving People to Drink? to the jury without objection.)

During his closing remarks, Mr. Constantine argued:

  • Jurors are free to vote based on their conscience, and are the conscience of the community; they can vote not guilty if they feel the law is unjust, unfair, oppressive, or otherwise unacceptable;
  • Jurors do not have to come to a unanimous decision; any number of jurors who have reached a firm decision do not have to go with the majority, rather, they can hang the jury for retrial, or
  • Jurors can choose to convict for a lesser offence and/or a lesser punishment.

In the end, the jury did mostly the right thing: a hung jury on both felony counts, but they found Mr. Constantine guilty of misdemeanour possession. The judge sentenced him to 60 days and $1,000 fine, the same as the original plea deal.

What does this mean?

It means you should never take a plea (consider how much time and money the state wasted). It means the jury understood Mr. Constantine's possible felony sentences were Draconian and they could not in good conscience convict. It means jury nullification is a crucial tool in the fight against tyranny. It means outreach work by organizations like NH Jury and the Fully Informed Jury Association are making an impact and changing people's minds.

In addition, the New Hampshire's Senate is currently considering a House Bill to expressly allow jury nullification to be mentioned during a trial (removing judicial discretion): "In all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. The court shall permit the defendant or counsel for the defendant to explain this right to the jury." Next, I hope they introduce bills that define a crime as one with an actual human victim, and outlaw all plea offers.

Even though Mr. Constantine will be caged and fined, I chalk this up as a win. Whenever you encounter someone who has been called for jury duty, or someone who is being brutalized by the state for a victimless crime, tell them this story. Tell them about the brave jury that refused to convict. Tell them about the one man who said: "I’m a moral person, and I can’t give in to something that’s so wrong."

Carla Gericke [send her mail] is president of the Free State Project.

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