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September 20, 2012

New Hampshire jury nullifies felony marijuana charges against 59-year-old Rastafarian

The state motto for New Hampshire is "Live Free or Die," and I joked in this June post that the state's Governor seemed to pick the opposite of live free when he vetoed a medical marijuana bill.  This fascinating new local story, however, suggests that jurors in New Hampshire are still inclined to go with live free despite the state's marijuana laws.  The piece is headlined "Jury clears NH man of felony pot charge, use was part of Rastafarian religion," and here are excerpts:

A Belknap County Superior Court jury cleared a Barnstead resident of a felony drug charge last week, siding with a defense lawyer who encouraged the jury to nullify the verdict on the grounds that the marijuana use was part of his Rastafarian religion.  The decision on Thursday cleared Doug Darrell, 59, a piano tuner and woodworker, of manufacture of marijuana, a Class B felony that carries a maximum prison sentence of 3.5 to seven years.

Under the principle of jury nullification, a jury can find a defendant innocent, even if prosecutors have proved guilt beyond a reasonable doubt. “It's a really important development,” said Concord defense lawyer Mark Sisti, who represented Darrell. Legislatures around the country are rethinking marijuana laws, and most New Hampshire residents have no problem with moderate use of the drug by responsible adults, he said.

“We're moving along a path we should have been on years ago,” he said. Key to the case was a decision by Superior Court Judge James O'Neill to instruct the jury about nullification, he said....

Juror Cathleen Converse of Barnstead said several members of the jury were uncomfortable with the case. “Mr. Darrell seemed to be the only victim here,” said Converse, a retiree who moved to New Hampshire in 2004 from South Carolina. “Almost everyone said this just shouldn't have happened to these peaceful people.”

Rastafarianism is closely associated with reggae music, dreadlocks and Caribbean culture. According to the website rastafarian.com, it arose in Jamaica in the 1930s and promotes the spiritual use of marijuana and the rejection of Western society. A Rastafarian since the 1980s, Darrell has no criminal history and has been married to his wife for 38 years, Sisti said. They have four grown children who are successful in their fields.

The couple use the marijuana plant more often for tea and medicinal rubs than to smoke it, he said. “This is the real deal here. This isn't some kid who listened to Bob Marley last week and decided to be Rastafarian,” Sisti said. Darrell refused several plea bargains because they would require him to plead guilty to something his religions deems as sacramental, Sisti said.

He said Darrell was arrested after a National Guard helicopter, working on a grid with New Hampshire State Police, spotted 15 marijuana plants in July 2009....

Belknap County Attorney Melissa Countway Guldbrandsen said she brought the charge against Darrell because he was breaking the law. It wouldn't matter whether a defendant were an active drug dealer or someone like Darrell, Guldbrandsen would still bring the charge, she said.

Like Sisti, she said a key to the case was the judge's decision to instruct the jury about nullification. She was surprised that Judge O'Neill gave the instruction, which lent credence to Sisti's argument in favor of jury nullification. “I don't see it as being that significant in changing our practice and the practice of the court,” Guldbrandsen said about the verdict. In January, a new law goes into effect that codifies current practice, which permits a lawyer to argue for nullification.

September 20, 2012 at 10:35 AM | Permalink


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Jury nullification should be legally considered to be evidence of a per se deviation from professional standard of due care by the prosecutor. This is especially true after those judge instructions addressing nullification. It is almost as if the legal expert, the judge, was instructing the jury to end the case.

A constitutional amendment will be required to end all prosecutorial immunities from tort liability for both wrongful prosecution and wrongful discretionary failure to prosecute. The Supreme Court has dealt the profession absolute tort immunity. Not only is this unhealthy, because the prosecution business is so incompetent and damaging, but it fully justified violence against prosecutors in formal logic, ethics, and policy.

Posted by: Supremacy Claus | Sep 20, 2012 12:27:18 PM

"siding with a defense lawyer… part of his Rastafarian religion."
"Rastafarianism…promotes…the rejection of Western society."

He and his family are mighty selective in their rejection of the West, e.g.:

\\ "a Barnstead (NH, USA) resident"
\\ "four grown children who are successful in their fields."
\\ listed on "pianoacoustics.com"

Posted by: Adamakis | Sep 20, 2012 1:24:29 PM

"The couple use the marijuana plant more often for tea and medicinal rubs than to smoke it, he said."

So they're tea party members?

Posted by: Adamakis | Sep 20, 2012 1:25:09 PM

The smartest jury I have read about in a long time! Thumbs up to New Hampshire.

Posted by: Anon | Sep 20, 2012 7:11:34 PM

Nullification has a rich history in New Hampshire. The standard New Hampshire model jury instructions, passed in 1984, included a model nullification instruction. It was rarely given, but its existence showed that in New Hampshire nullification was more than a problematic side-effect of the fact that the prosecution cannot appeal a verdict of not guilty. Then in 2010 the Tea Party and Free Staters had a substantial victory at the polls. They passed a law explicitly enshrining a nullification instruction.

Judge O'Neil is not a free stater or a Tea Party judge. New Hampshire does not elect judges. I think O'Neil was nominated in the mid 90's by then-governor Steve Merrill, who is as establishment New England Republican as you get. (John Sununu is the best national example I can think of, for people who don't know New Hampshire). O'Neil is not a radical and not a product of any recent election. He probably gave a nullification instruction because the law allows it, he follows the law and he is a fair trial judge.

Posted by: Paul | Sep 21, 2012 12:00:53 AM

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