Understanding Jury Nullification
Juries can deliver a message to the court about unpopular laws
By Jeff Woodburn
http://www.nhmagazine.com/March-2014...Nullification/

It's a long magazine article. I took 3 sections of it and posted them here. Feel free to read the whole think at the above link.

A New Orleans mayor famously warned federal officials after they closed down several well-established houses of prostitution that “you can make it illegal, but you can’t make it unpopular.” Well, in New Hampshire and around the country, that forecast may well be applied to marijuana.

The times are changing. Polls consistently show a growing majority of people support marijuana legalization. The New Hampshire House of Representatives recently made history by becoming the first legislative body in the country to endorse legalizing possession of small amounts of cannabis. Colorado and Washington did the same thing by voter referendum. But don’t light up that joint quite yet. The bill faces another House vote, a tough fight in the Senate and a veto by Gov. Maggie Hassan.

This leaves New Hampshire in a bit of legal quandary. Is growing popular support running headlong into the region’s toughest marijuana prohibition laws? It begs the basic question: Are widely unpopular laws enforceable?
The jury’s indisputable power to decide cases is an age-old principle dating back to the 1600s when a Colonial judge jailed an entire jury for not convicting William Penn for preaching Quakerism. Eventually the jury prevailed and the legal authority permanently shifted to the jury. They became the final arbiter of cases, relying on their conscience, not just the law. And while the Supreme Court recognized this as a “historical prerogative of the jury,” there was no responsibility — and some cases a flat-out prohibition — of the court to inform the jury of this right.

The defense was used in the north in the years leading up to the Civil War to make a mockery of the Fugitive Slave Act and more recently when an anti-nuclear power activist was charged and then acquitted of littering while handing out pamphlets. Jury nullification cases are rare and mostly about First Amendment issues with political overtones, says Concord Attorney Chuck Douglas, a former state Supreme Court judge. It occurs when “the facts and law don’t line up,” he says, that there “are gray areas of public acceptance.”

And this division is often reflected in the jury. And that’s what Sisti was literally counting on — with six out of every 10 people supporting legalization of marijuana, it is mathematically difficult to get a conviction from a jury on a sympathetic marijuana case. “It’s de facto decriminalization,” he says, or more pointedly, “sentence nullification.”

With Douglas Darrell, a non-violent, first offender growing for personal use, Sisti had a good case with, as he calls it, “a perfect client, perfect case and perfect jury.”
Months later, New Hampshire became the first state to pass a law that “permits 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.” It is a watered-down version of what many Libertarian-leaning so-called Free Staters want — a requirement to instruct, not just permit that jurors be informed of their powers.