Mutiny In Montana

The Missoulian reports on a marijuana case in Montana that went bad for the prosecution. They couldn't seat a jury.

A funny thing happened on the way to a trial in Missoula County District Court last week.

Jurors – well, potential jurors – staged a revolt.

They took the law into their own hands, as it were, and made it clear they weren’t about to convict anybody for having a couple of buds of marijuana. Never mind that the defendant in question also faced a felony charge of criminal distribution of dangerous drugs.

The tiny amount of marijuana police found while searching Touray Cornell’s home on April 23 became a huge issue for some members of the jury panel.

No, they said, one after the other. No way would they convict somebody for having a 16th of an ounce.

In fact, one juror wondered why the county was wasting time and money prosecuting the case at all, said a flummoxed Deputy Missoula County Attorney Andrew Paul.

District Judge Dusty Deschamps took a quick poll as to who might agree. Of the 27 potential jurors before him, maybe five raised their hands. A couple of others had already been excused because of their philosophical objections.

“I thought, ‘Geez, I don’t know if we can seat a jury,’ ” said Deschamps, who called a recess.

No jury was seated.

Evidently public opinion in the matter of marijuana prohibition is changing.

“Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges on Dec. 16, 2010, is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances,” according to the plea memorandum filed by his attorney.

“A mutiny,” said Paul.

“Bizarre,” the defense attorney called it.

In his nearly 30 years as a prosecutor and judge, Deschamps said he’s never seen anything like it.

The question of course is an interesting one. If juries are empaneled only with people who support the marijuana laws are you really getting a jury of your peers? It does look as if that question may be becoming moot.

And who was in the jury pool that forced this action?

“I think it’s going to become increasingly difficult to seat a jury in marijuana cases, at least the ones involving a small amount,” Deschamps said.

The attorneys and the judge all noted Missoula County’s approval in 2006 of Initiative 2, which required law enforcement to treat marijuana crimes as their lowest priority – and also of the 2004 approval of a statewide medical marijuana ballot initiative.

And all three noticed the age of the members of the jury pool who objected. A couple looked to be in their 20s. A couple in their 40s. But one of the most vocal was in her 60s.

“It’s kind of a reflection of society as a whole on the issue,” said Deschamps.

Which begs a question, he said.

Given the fact that marijuana use became widespread in the 1960s, most of those early users are now in late middle age and fast approaching elderly.

Is it fair, Deschamps wondered, in such cases to insist upon impaneling a jury of “hardliners” who object to all drug use, including marijuana?

“I think that poses a real challenge in proceeding,” he said. “Are we really seating a jury of their peers if we just leave people on who are militant on the subject?”

Jury nullification has a long tradition. It is one of the last recourses of the people from a legislature intent on making bad law. There is in fact an organization devoted to it. FIJA - Fully Informed Jury Association. And there are books. This one got a 5 star rating.

Jury Nullification: The Evolution of a Doctrine

From the product description:

Juries have been delivering independent verdicts in the interest of justice for over 800 years, and many legal historians and scholars believe the value of juries is their power to act as the "conscience of the community," serving as the final check and balance on government in the moment of truth. If juries are nothing more than rubber stamps, they are no limit on government's power to pass unjust, immoral, or oppressive laws, and citizens are entirely at the mercy of sometimes jaded or corrupt courts and legislatures. This was what the Founding Fathers feared, and this is the reason why they guaranteed trial by jury three times in the Constitution -- more than any other right.

In Jury Nullification, author Clay Conrad examines the history, the law, and the practical and political implications of jury independence, examining in depth the role of nullification in capital punishment law, the dark side of jury nullification in Southern lynching and civil rights cases, and the purpose and legal effect of the juror's oath. The book concludes with an examination of what trial lawyers can do when nullification is the best available defense.

Yesterday I got an e-mail from a prof. of law (ret.) which speaks to the issue. I quote it here with permission.

In 1970 when I was a baby lawyer, the MINIMUM sentence for possession of any "useable amount" of marijuana in Texas was 2 years in prison. I started practicing in Lubbock -- then, as now, one of the most conservative parts of the state.

Judges would normally summon a panel of 30-40 veniremen to get a jury of 12 for a felony trial. But the early 70s, they were summoning panels of 150 in marijuana cases, and even then they often could not find 12 people willing to send someone to prison for 2 years for marijuana possession.

By the mid-70s, the Criminal Code was changed, reducing marijuana possession to a Class B misdemeanor.

This is jury nullification at its finest.

The times they are a changin'.

Cross Posted at Classical Values