Jury Nullification Law Gutted by New Hampshire Supreme Court

Insisting “It is well established that jury
nullification is neither a right of the defendant nor a defense
recognized by law,” the New Hampshire Supreme Court this morning
eviscerated a law
that was openly intended and
widely interpreted as a
shot in the arm for the right of jurors to consider the law as
well as the facts in criminal cases. It did nothing of the sort,
the court sniffed. It just codified existing law allowing the jury
to give some thought to the way in which laws are applied.

Yeah. That’s why legislators battled and prosecutors fretted
over the law’s passage.

In the case at hand,
The State of New Hampshire v. Richard Paul. Richard
Paul was convicted of selling marijuana and LSD. During closing
arguments, his attorney urged nullification. By the court’s
description, the prosecutor acknowledged the jury’s nullification
role, but argued that the jurors should convict based the law—an
understandable back and forth between prosecution and defense.

Then, the judge issued “jury instructions that effectively
contravened his ‘jury nullification defense.'” Paul appealed his
subsequent conviction.

Honestly, the law had been watered down in the course of its
passage through the New Hampshire legislature, from a version that,
the court concedes, instructed the jury to “judge the law” and
“nullify any and all actions [the jurors] find to be unjust.” The
enacted
version reads, instead, “In all criminal proceedings the court
shall permit the defense to inform the jury of its right to judge
the facts and the application of the law in relation to the facts
in controversy.”

At the time of passage in 2012, Tim Lynch of the Cato Institute
said it was “definitely a step forward,” but he was
worried about the dilution the measure had suffered.

I am concerned, however,  that this language does not go
far enough.   We don’t know how much pressure trial
judges will exert on defense counsel.  As noted above, if the
attorney’s argument is “too strenuous,” the judge may reprimand the
attorney in some way or deliver his own strenuous instruction about
how the jurors must ultimately accept the law as described by
the court, not the defense.  I’m also
afraid what the jurors hear will too often depend on the
particular judge and, then, what that judge wants to do in a
particular case.

That’s pretty much exactly what happened here. Insisting “Were
[the law] interpreted to grant juries the right to judge or nullify
the law, there would be a significant question as to its
constitutionality,” the New Hampshire Supreme Court said Paul got
more than he was entitled to when the judge in his case allowed his
attorney to mention nullification before issuing contrary
instructions.

So Paul is out of luck. And defendants in the state can no
longer rely on the state’s jury nullification law, because the
state’s highest court says that law doesn’t mean what everybody
knew it meant.

Below, Reason TV on a happier outcome from a jury.

HT: Kirsten Tynan