Last week, a New Hampshire jury nullified criminal charges brought against a 59 year-old Rastafarian accused of growing 15 marijuana plants near his home. The defendant, Doug Darrell, claimed that the marijuana was used as part of his religious practices. The defense attorney sought a jury nullification instruction and it was granted by Belknap County Superior Court Judge James O’Neill. According to one report, the judge gave the following instruction: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” The marijuana plants were spotted by a National Guard helicopter as part of a coordinated operation with NH State Police.
This case raises questions as to whether jury nullification is a viable way to protect the rights of religious minorities from criminal prosecution. Read one way, this case may suggest that jury nullification is a tool for local communities to protect the rights of such minorities from the unintended consequences of a generally applicable law. Rastafarianism is by no means a popular religion in the US (I daresay this is especially true in the Granite State), and I doubt that NH legislators had the religion in mind when they passed the law prohibiting marijuana possession. Yet a group of twelve citizens decided not to apply the neutral, generally applicable law (see Employment Division v. Smith) because it substantially burdened one adherent’s beliefs.
Read another way, jury nullification only worked here because of a number of other factors, unrelated to Mr. Darrell’s religion. In fact, one juror stated that Mr. Darrell’s religion had nothing to do with the jury’s decision. One cannot ignore, for example, the fact that this case involved a criminal act many people are familiar with and do not consider wrongful (i.e. growing marijuana for personal use). I wonder if the jury would have nullified had Mr. Darrell been a member of the Santeria religion charged with animal cruelty (see Church of Lukumi Babalu Aye v. City of Hialeah). Another aspect is the personal story involved. Mr. Darrell is a 59 year-old, mild-mannered man who has been married for 38 years and has 4 grown children, who are “successful in their fields.” Again, I wonder if the jury would have nullified had Mr. Darrell been a loud, unrepenting agitator, arrested while picketing military funerals (See Snyder v. Phelps).
Jury nullification, therefore, seems like one way to protect religious minorities from prosecution. However, whether a jury will actually do so depends much less on the lofty ideals of respect for religious freedom or diversity and more on the mundane issues of familiarity and likeability.