Free and Nullify
by Carla Gericke
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.
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, ‘Uncle.’ 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, ‘Uncle.’ 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."
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.
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
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.
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
is Safer: So Why Are We Driving People to Drink? to the
jury without objection.)
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
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.
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.
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."
Gericke [send her
mail] is president of the Free
© 2011 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.