New Hampshire Jury Nullifies its First Felony Marijuana Case
A major victory is scored for jury nullification with the acquittal of felony marijuana charges – and it’s all thanks to a “straight-laced little old lady” juror and participant of the Free State Project
BARNSTEAD, NH — Doug Darrell beat the odds and walked home from his trial as a free man on Friday, a major win for the state’s new jury nullification law. Facing felony drug cultivation charges for growing marijuana plants behind his house, the 59-year-old Rastafarian saw all of the charges against him dropped after jurors in his trial successfully convinced their peers to nullify the case on the grounds that Darrell was simply trying to obey the customs of his religion.
“Many of us wondered what kind of precedent this would set,” said juror and FSP participant Cathleen Converse in an exclusive interview with Free Talk Live. “But after chewing on all of the possibilities and re-reading the definition of nullification, we all decided that the only fair thing to do was to vote with our consciences and acquit the defendant of all charges.”
Doug Darrell never had any run-ins with the law until 2009, when a National Guard helicopter flying below legal altitude while looking for drugs noticed that Darrell was growing marijuana in the back yard of his Barnstead home. Though the sighting could legally have been considered an invasion of privacy, federal drug authorities were notified anyway. Shortly thereafter, Darrell’s home was raided and the Rastafarian found himself staring down the barrel of a police assault rifle and facing multiple counts of felony possession of marijuana.
Darrell was offered several plea deals, including a final one that offered no jail time or fine in exchange for a guilty plea, but he refused to accept them on the grounds that doing so would be a sacrament of his religion.
Under the policy known as HB 146, the defense has a right to instruct the jury to nullify a guilty verdict if they conscientiously object to the punishment. Darrell’s attorney, Mark Sisti, based his defense around this new rule and, after the trial went to deliberation, persuaded the presiding judge to inform jurors of this power not once but twice. Given the circumstances of Darrell’s case, it took less than six hours for them to reach a unanimous verdict – not guilty on all counts.
“Mr. Darrell is a peaceful man,” said Converse, “he never deals with the darker elements of society and 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.”
Converse describes herself as a “straight-laced, little old lady” who moved to New Hampshire from South Carolina in June of 2004. In 2003 she joined the Free State Project because she felt that her family’s future “would be better spent among those who don’t think we’re strange for wanting to rely on ourselves, and to work together to bring more liberty into our lives sooner rather than later.”
It’s a groundbreaking win for the participants of the Free State Project who helped get HB 146 signed into law. As an organization, the Free State Project does not back any political candidates nor specific legislation. Founded in 2001 with the intent to attract 20,000 liberty-loving individuals to New Hampshire in order to restore the Constitutional principles of personal responsibility and freedom, members of the Free State Project have quickly grown into the most significant liberty-based activist group in the country.
“So far, over 12,750 participants have pledged to relocate to the state, and more than 1,000 have already moved, over a dozen of which are currently elected members of the New Hampshire House of Representatives,” said Free State Project President Carla Gericke. “Once here, participants are free to pursue their own causes and I’m excited to see that progress is being made.”
Just say no to marijuana convictions
Jury nullification is a constitutional doctrine that allows juries to acquit defendants who are technically guilty but who don't deserve punishment. As Paul Butler wrote recently in The New York Times, juries have the right and power to use jury nullification to protest unjust laws.
Mr. Butler points out that nullification was credited with ending our country's disastrous alcohol Prohibition as more and more jurors refused to send their neighbors to jail for a law they didn't believe in. He says we need to do the same with today's marijuana arrests.
There is growing recognition that today's drug laws are ineffective and unfair. For the first time, a recent Gallup Poll found that 50 percent of Americans want to legalize the use of marijuana. Despite half of our country wanting to end marijuana prohibition, the war on marijuana users is as vicious as ever. There were more than 750,000 arrests last year for possession. In New York City, marijuana possession was the No. 1 reason people were arrested last year, making up 15 percent of all arrests.
People hoping for change should not expect it to come from our "leaders" in Washington. While most of our elected officials know in their hearts that our drug war is an utter failure that fills our prisons while doing nothing to help people struggling with addiction, there is deafening silence when it comes to offering alternatives to the war on drugs. Democrats and Republicans are both cowardly and opportunistic and don't want to give up their "tough on crime" credentials.
Here is where jury nullification comes in. If our leaders aren't going to stop the madness, maybe it is up to our peers to say enough is enough.
In Montana last year, a group of five prospective jurors said they had a problem with someone receiving a felony for a small amount of marijuana. The prosecutors, freaked out about the "Mutiny in Montana," feared they would not be able convince 12 jurors in the state to convict. The judge was reported in the Times as saying, "I've never seen this large a number of people express this large a number of reservations," adding, "it does raise a question about the next case."
Perhaps the highest-profile call for jury nullification for drug offenses is from the creators of the HBO hit series "The Wire." Former Baltimore Sun reporter David Simon and the other creators of "The Wire" wrote a passionate piece in Time magazine in which they called on Americans to join them in the use of jury nullification as a strategy to slow the drug war machine. From the article:
"'A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,' wrote Thomas Paine when he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. … It doesn't resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.
"If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens."
Forty years after President Richard Nixon launched the "war on drugs" the casualties continue to mount with no end in sight. We need to step up our efforts to end this war at home and stop sending our loved ones to cages because they have a drug problem. We have more power than we realize. If the people lead, the leaders will follow.