Prosecutorial Discretion

http://legalinsurrection.com/2013/01/david-gregory-will-not-be-prosecuted/

Mandatory Minimums

A recent interview with NH Public Radio

http://nhpr.org/post/nh-lawmakers-consider-repealing-mandatory-minimum-sentences-some-crimes

Jury Nullification in NH

POWER TO THE PEOPLE!

A jury is probably the most democratic form of a decision making body that exists in the United States. A group of randomly selected citizens from voting lists and driver's licenses will form a jury in NH to decide the fate of a fellow citizen.  This group decides if a crime has been committed and neither the executive branch (police and prosecutors) nor the judiciary (judges) are able to force them to make a finding.

These 12 jurors will hear evidence and vote directly on whether a person is guilty or not guilty based on the evidence presented and their moral conscience.  NH is unique in that the legislature has passed a law which allows defense lawyers to explain jury nullification.   RSA 519:23-a Right of Accused. – 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.

NH has implicitly allowed for jury nullification and courts have long given an instruction which is referred to as a Wentworth instruction, where a judge tells the jury the following:

"If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. State v. Wentworth, 118 N.H. 832, 839 (1978)."

In 2014, the NH Supreme Court largely attempted to gut the power of defense lawyers from making jury nullification arguments.  The court ruled that the defense may argue for nullification but that the court is not required to give any instruction regarding nullification.  State v. Paul.  In that case the NH Supreme Court ruled:

"that RSA 519:23-a represents simply a codification of pre-existing law regarding the function of the jury in criminal cases, we briefly summarize that law. It is well established that jury nullification is neither a right of the defendant nor a defense recognized by law. State v. Sanchez, 152 N.H. 625, 629 (2005). Rather, jury nullification is the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. Id.; see also State v. Mayo, 125 N.H. 200, 203 (1984) (recognizing jury nullification to be “an historical prerogative of the jury” (quotation omitted)). The trial court ordinarily gives the Wentworth instruction, which is the equivalent of a jury nullification instruction. Sanchez, 152 N.H. at 629. The defendant is not entitled to a more specific jury nullification instruction, and the decision to give such an instruction, when requested, lies within the sound discretion of the trial court depending on the facts of a particular case. State v. Bonacorsi, 139 N.H. 28, 31 (1994); State v. Brown, 132 N.H. 520, 527 (1989). Here, the court gave the Wentworth instruction, and, as discussed above, nothing in RSA 519:23-a required the court to do anything more. 

In conclusion, although RSA 519:23-a requires the trial court to allow the defendant “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 does not require the court to allow the defendant to inform the jury that it has the right to judge the law or the right to ignore the law. In other words, it is not a jury nullification statute. Further, it is of no moment that the court’s instructions may have contravened or undermined the defendant’s jury nullification argument because the statute gave the defendant no right to make such an argument." 

Jury nullification has a long history in the United States, which includes famous cases involving sedition, slavery and prohibition.  Increasingly courts have attempted to restrict this awesome power to acquit by restricting or denying the right to even inform a juror of this power.

Recently the NH House has passed a bill that would require courts to provide a jury nullification instruction.  This bill is headed to the senate and governor.  If this bill became law, it seems very likely that the NH Supreme Court will be asked to determine if jury nullification is constitutional.  The future of jury nullification is uncertain.

I had a jury trial this past week where I argued for jury nullification because the police had enforced a law in a draconian manner against any sense of normal enforcement.  I don't know if the jury decided my client was not guilty based on nullification, but having the power to explain it is essential to putting check on police powers.

All jury deliberations are secret so I may never know the reasoning of the jury, but having the ability to tell a jury to do the right thing is very powerful and in the right case, essential.  I know that my client and I felt empowered by arguing jury nullification.  The fact that the jury took less than 20 minutes to vote not guilty may have had everything or nothing to do with nullification.  However, being able to inform the jury about their power to vote their conscience even if you they believe the state has proven each element provides another level of protection for american citizens accused of committing a crime.  In my opinion, it is important that a jury be given the knowledge that even when a law may be broken there exists a way to reign in strict enforcement that would be immoral.

Questioning the War on Drugs

Huffington Post Article

http://www.huffingtonpost.com/johann-hari/7-facts-about-drugs-that-will-make-you-question-everything_b_9484744.html?section=politics

New Hampshire Jury Nullification

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/14/jury-nullification-instructions-coming-to-new-hampshire/

Bill Maher Lights One Up

http://www.alternet.org/media/bill-maher-lights-one-during-impassioned-new-rules-advocating-national-pot-legalization

Post Conviction Exonerations Highest Ever

Homicides make up high number of record exonerations:

http://www.cbsnews.com/news/us-exonerations-2015-record-number-new-report/


A bedrock principle of criminal law is often referred to as Blackstone's formulation (Blackstone's ratio or the Blackstone ratio) this is principle states:

"It is better that ten guilty persons escape than that one innocent suffer",

...as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.  Uber-Founding Father Benjamin Franklin took this one step further and said that "… it is better one hundred guilty Persons should escape than that one innocent Person should suffer."
 
The message to government and the courts is that justice must err on the side of innocence.  I work hard on a daily basis to exude the ideals of professionalism, courtesy and respect but most importantly justice.  Our entire system of justice depends on a presumption of innocence and requiring the government to prove a case beyond a reasonable doubt.

This story by CBS showing a high number of falsely convicted murderers and rapists who were later exonerated means our system of justice is flawed.  The fact that the American justice system is convicting citizens wrongly is simply unacceptable morally and ethically.   It means that we as a country have to work harder to ensure that truly innocent people are not convicted.  It also means that we have to examine our roles in the problem.



I as an attorney have taken an oath to diligently defend the US and NH Constitutions and each one of my clients. RSA 311:6.  This oath means that I must "do no falsehood, nor consent that any be done in the court.. and will act in the office of an attorney within the court according to the best of my learning and discretion, and with all good fidelity as well to the court as to your client."  I also take pride in knowing the law, rules, procedures and effectively defending each citizen to the best of my training, ability using my experience.

I am very proud to work as a defense attorney for over 20 years serving Northern NH.  I pride myself on helping citizens accused defend themselves against criminal charges.  I have a history of representing citizens charged with serious felonies such as: murder, manslaughter, sexual assaults, first degree assaults, drug charges to DWI, hunting violations and motor vehicle violations.  I believe every citizen deserves a defense and aggressively, passionately and diligently defend each of my clients.  If you are facing a NH criminal case contact me.  I am available 24 hours a day, 7 days a week.