Jury revolt.

December 22, 2010 10:21 AM

Missoula District Court: Jury pool in marijuana case stages ‘mutiny’. '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.'
posted by VikingSword (48 comments total)

Good on them. It's kind of an edge case, though, as most charges for small amounts of weed never make it anywhere close to an actual jury trial. This one was piggy backed on some felonies.
posted by Burhanistan at 10:27 AM on December 22, 2010

Jury nullification. That would be a great campaign for NORML or whoever. The American people just en masse refuse to convict anyone for simple possession of marijuana as a form of civil disobedience.
posted by ND¢ at 10:27 AM on December 22, 2010 [16 favorites]

Sell tiny amount of cannabis in Montana: Felon.
Sell massive amounts of cannabis in California: Upstanding member of the community and compassionate caregiver.
posted by mullingitover at 10:30 AM on December 22, 2010 [3 favorites]

most charges for small amounts of weed never make it anywhere close to an actual jury trial

Oh, but they will, if this sort of thing becomes common. It'll go a long way towards deflating the threats DAs use to get plea deals.
posted by ryanrs at 10:33 AM on December 22, 2010 [3 favorites]

> Sell tiny amount of cannabis in Montana: Felon.

The pot charge wasn't a felony here, he was up for other charges (and had a history of felony convictions that the jury wasn't allowed to be presented about).
posted by Burhanistan at 10:33 AM on December 22, 2010

Oh, and c'mon Montana jurors, don't show your hand until the trial is over and you're deliberating.
posted by mullingitover at 10:34 AM on December 22, 2010 [7 favorites]

> Oh, but they will, if this sort of thing becomes common. It'll go a long way towards deflating the threats DAs use to get plea deals.

IANAL, but I'm pretty sure DAs would simply include questions like "do you believe in upholding our drug laws?" in jury screening. This story seems kind of like a freak of nature.
posted by Burhanistan at 10:35 AM on December 22, 2010

Fuck that.

It doesn't need to be a campaign, it's what we as human beings should be doing every day, regardless. When we're asked by our superiors to do something that conflicts with sound morals or the basic human rights of others, it our duty to say NO and accept the consequences.

Whenever there's oppression in the world, it's always the same thing: One small group of assholes calling the shots, and a whole population "just doing [their] job," or trying not to be the nail that sticks out.

"What is a rebel? A man who says 'No.'" - Albert Camus
posted by Bathtub Bobsled at 10:36 AM on December 22, 2010 [27 favorites]

Oh, and c'mon Montana jurors, don't show your hand until the trial is over and you're deliberating.

Unless they don't so much support legalization as oppose jury duty.
posted by DU at 10:37 AM on December 22, 2010 [2 favorites]

Burhanistan - the article addressed that - one attorney wondered, if, say, 90% of the potential jurors disagrees with drug laws, if throwing them out and filling the jury with the 10% hardliners can really be said to be a jury of peers.
posted by Pickman's Next Top Model at 10:41 AM on December 22, 2010 [12 favorites]

Jury nullification.

Fuckin' Tea-baggers.
posted by ZenMasterThis at 10:47 AM on December 22, 2010

Just say "no".
posted by mmrtnt at 10:49 AM on December 22, 2010 [8 favorites]

I'm not understanding you Mr. Bobsled. Are you saying that rather than an organization in favor of a change to marijuana laws encouraging legal and what may be effective civil disobedience . . . what? All of humanity should on their own recognize their inherent duty to refuse to enforce laws you don't agree with? Good luck with that.
posted by ND¢ at 10:50 AM on December 22, 2010 [2 favorites]

Burhanistan - the article addressed that - one attorney wondered, if, say, 90% of the potential jurors disagrees with drug laws, if throwing them out and filling the jury with the 10% hardliners can really be said to be a jury of peers.


But that sends us on another tangent. If you recall several high profile police brutality cases during the mid-late 90's, there was the issue of when defense attorney's asked "have you ever experienced what you believed to be police discrimination, first hand?" and, ironically, thanks to prevalent shady police tactics in the area, they were able to eliminate every African-American from the jury pool.

Or, remember how many times every literate citizen was eliminated from the pool by answering "Yes, I read newspaper accounts of the incident."

Any good attorney knows an "impartial" jury is the one most skewed.
posted by Bathtub Bobsled at 10:56 AM on December 22, 2010 [9 favorites]

Just say "no".

Wow, turning that slogan on its head in a campaign for jury nullification would be genius.
posted by callmejay at 10:59 AM on December 22, 2010 [28 favorites]

I think we may be finally getting there, sanity-wise. It's going to take a while. But it's worth noting we went from "I did not inhale" in 1992, to George W. and Obama both admitting cocaine use as young men, and it being a total non-issue.
posted by drjimmy11 at 11:00 AM on December 22, 2010

"have you ever experienced what you believed to be police discrimination, first hand?" and, ironically, thanks to prevalent shady police tactics in the area, they were able to eliminate every African-American from the jury pool.

That's not how it works, as far as I know. The defense and prosecution take turns eliminating people based on their responses to questions. The defense wouldn't want to eliminate those people, unless the judge made them for some reason.
posted by drjimmy11 at 11:02 AM on December 22, 2010

I was called for jury duty recently and during the discussion of qualifications to serve, this exact example (disagreeing with the marijuana laws) came up. The term jury nullification didn't come up, but it was what the judge's speech was squarely aimed at. He asked those of us who could not fairly adjudicate the case according to the law to speak to him, and effectively to admit to being disqualified. Disliking the law wasn't the only reason for disqualifying yourself, but it was clear the judge--who was retiring and at the right kind of age for it--felt it was one that would resonate for an Austin-area jury.

As it turned out, I did have to disqualify myself from the case (indictment on four counts including aggravated sexual assault and attempted capital murder) because the defense attorney made it clear he was going to impeach the victim's credibility over prior consent. One strategy he beta-tested during voir dire was that the injuries that nearly killed the victim were suffered during a consensual encounter that got out of hand. Just hearing this in voir dire was upsetting enough that I knew I wouldn't make it through the trial. I was upfront with the judge about how a rape case of this sort that turned into he-said-she-said meant that I would always ALWAYS believe the woman, and I was struck, presumably over that.

There were 85 potential jurors summoned for this case and my husband (summoned on the same day to the same court!) was juror #82. Juror #80 was empaneled as the last of the 12+1 alternate, and we were pretty sure 81 and at least one or two of the last three were also going to be disqualified. They almost couldn't get a jury out of 85 people, and my husband and I spent some time afterwards talking about what it was going to mean when they couldn't find a jury that would presume innocence, as required by law, for a he-said-she-said rape case. I'm not surprised, but I am pleased, to see that they're running into that problem for attempts to prosecute marijuana possession.

It's a real problem for the legal system when people just don't agree with the law. This isn't nullification, but I think it's a good thing and a sign to legislators that the pot laws need to change.
posted by immlass at 11:03 AM on December 22, 2010 [8 favorites]

I'm not understanding you Mr. Bobsled.

I realize that how I said it could be interpreted differently than I intended.

Basically, NORML has been encouraging civil disobedience and lawful methods to change a remarkably unjust set of laws. This is what they've been pushing all along, so this example is just another link on their front page (one I visit regularly).

My assertion is that too many people have failed to act in accordance to their morals in many areas, especially this one. During the run up to Prop-9, it was reported that law enforcement in California favored the measure. Sorta true. The majority of those people were former law enforcement personnel.

I agree, it would be mildly ignorant of me to expect humanity to act in strict accordance to their principles. I myself make compromises from time to time. But it should not be as muted as it is today.

If you recall, Nixon had quite a political machine going. But one night everyone finally said "Fuck you, Dick."

Same here. It shouldn't be a NORML campaign, it should be general collective response.
If you categorize the principle of CD with a specific interest group, those who happen to be against marijuana legalization may be for gay marriage, and they'll be hesitant to walk in the same parade.

We should be pushing it as an American value: "Fuck you, dicks."
posted by Bathtub Bobsled at 11:15 AM on December 22, 2010 [1 favorite]

But it's worth noting we went from "I did not inhale" in 1992, to George W. and Obama both admitting cocaine use as young men

As far as I know, the former did not outrightly admit it, on record. He refused to deny it, and angrily derided the guys who publicized it.
posted by Bathtub Bobsled at 11:18 AM on December 22, 2010

On second thought "Just say 'no'" works better than my suggestion.
posted by Bathtub Bobsled at 11:22 AM on December 22, 2010

I think "I would prefer not to" is better than "no". Worked for Bartleby.
posted by spicynuts at 11:42 AM on December 22, 2010

"Fuck you, dicks."

< Obligatory "Team America World Police" link >
posted by mmrtnt at 11:44 AM on December 22, 2010 [1 favorite]

IANAL, but I'm pretty sure DAs would simply include questions like "do you believe in upholding our drug laws?" in jury screening

As immlass says, this is already more or less covered. It's been a while since I was sat on a jury but I recall the question being something on the order of whether I had any issues or beliefs or preconceptions that would prevent me from "rendering a verdict on the charges at hand" (emphasis mine). It was clear from that and the surrounding description that we were being asked whether we would/could examine the facts presented (and no others) and render a yea/nay decision on that question and that question alone.

I suspect this'll get worse before it'll get better. The stories of near-unbelievable judicial/prosecutorail misconduct aren't hard to come by, as this Balko piece about an activist being muzzled can attest. Do you for a second think that these sorts of people wouldn't go after a juror who they felt disregarded their responsibility?

I'd wager that someone who would suppress someone's first amendment rights wouldn't hesitate to hold a juror in contempt.
posted by phearlez at 11:46 AM on December 22, 2010 [2 favorites]

Yeah, just plain old jury nullification ... but before the fact? WTF, jurors?

That would be a great campaign for NORML or whoever.

It's actually a contentious topic in the legal industry, although my friend who defends medical marijuana clients has no qualms pushing it.

When the judge doesn't allow the jury to know that the marijuana is medicinal and legal, then well, whatever works to get the right decision is OK with me.

Sell tiny amount of cannabis in Montana: Felon.
Sell massive amounts of cannabis in California: Upstanding member of the community and compassionate caregiver.

Marijuana Arrests in California Remain at Record Highs

Oh, and c'mon Montana jurors, don't show your hand until the trial is over and you're deliberating.

Seriously. This is why lawyers need to have more outreach and explain jury nullification. I realize it's a slippery slope, but don't hide from it.
posted by mrgrimm at 11:58 AM on December 22, 2010 [2 favorites]

Man, I get called for jury duty all the time, and never, in my mumblemumble years of being a registered voter, have I have gotten to actually serve. But if they did let me serve, I would be in total favor of nullification for stupid laws. (Which is probably why they don't let me serve. Also...philosophy degrees; apparently that's a problem for DAs.)
posted by dejah420 at 12:01 PM on December 22, 2010 [3 favorites]

Montana has a had a Medical Marijuana law since 2004.
posted by 445supermag at 12:04 PM on December 22, 2010

And yet the man still got 20 years. As far as I'm concerned, the potential jurors did the guy no favours. And, yes, it was a bs prosecution based on really sloppy police work.
posted by QIbHom at 12:09 PM on December 22, 2010

It's a sad coincidence that just after I learned about the concept of jury nullification, I stopped getting summons. Because I would nullify the fuck out of a pot case.
posted by quin at 12:24 PM on December 22, 2010 [1 favorite]

And yet the man still got 20 years.

Well, 19 of those years are suspended, and the 200 days he's already served count toward the one remaining year. If I had to bet on it, I'd guess that he'll violate parole at some point in 19 years and be put back in prison as a result, but he's not currently sentenced to 20 years in prison.
posted by Marla Singer at 12:24 PM on December 22, 2010

My assertion is that too many people have failed to act in accordance to their morals in many areas

This. I'm going to quote Howard Zinn for the second time in about as many days: "Our problem is civil obedience."
posted by Marla Singer at 12:28 PM on December 22, 2010 [2 favorites]

Every drug case I have tried has resulted in one or two jurors being removed because they disagree with the drug laws as they are written. This does indeed mean that the jury is going to be more likely to convict than a group of twelve random people would be. But that is not too much of a problem, really, compared to another situation.

My state has the death penalty. There are a lot of people who are opposed to the death penalty. If a potential juror states that she is opposed to the death penalty, then she will be removed. The percentage of people who are opposed to the death penalty -- and get removed -- is close to fifty percent. This means that any trial for capital murder is going to begin with a jury that is already pro-death penalty. I think it would be fair to say that this group is much more likely to convict in the first place -- much less sentence someone to death.

It is funny to me that so many people think that we "coddle criminals" or that "criminals have more rights than victims" when the reality is that the deck is completely stacked against criminal defendants every single step of the way.
posted by flarbuse at 12:29 PM on December 22, 2010 [17 favorites]

The percentage of people who are opposed to the death penalty -- and get removed -- is close to fifty percent.

Removing fifty percent of the jury pool for their political beliefs? Wow, that's a problem alright. That's just wrong.
posted by Marla Singer at 12:42 PM on December 22, 2010 [2 favorites]

The percentage of people who are opposed to the death penalty -- and get removed -- is close to fifty percent. This means that any trial for capital murder is going to begin with a jury that is already pro-death penalty. I think it would be fair to say that this group is much more likely to convict in the first place -- much less sentence someone to death.

I grew up in Harris County (Houston) Texas, which used to send phenomenal numbers of people to the death chamber at Huntsville. It's an open operating assumption that the DA's office used (and may still use) capital murder charges to pick a jury more likely to convict.
posted by immlass at 12:52 PM on December 22, 2010 [1 favorite]

The death penalty issue is not strictly whether someone is opposed or not, it's whether they are *so* opposed that they wouldn't be able to apply the law to the case and facts at hand. The voir dire question is "Are you so opposed to the death penalty that you would refuse to sentence someone to death regardless of how heinous the crime is?"

This results in some odd back and forth in jury selection. The defence, who probably wants people who're opposed, will come up with more and more outlandish hypotheticals ("Would you sentence a murderer of innocent children to death? Hitler?") in an attempt to get the desired jury member to indicate that he or she *does* have a threshold, beyond which they would sentence someone to death (I.e., they *can* apply the law). Once that's established, the prosecution has to use one of their preemptory challenges to get the juror excused, instead of being able to use a cause challenge.
posted by jasper411 at 1:00 PM on December 22, 2010 [1 favorite]

WERES YOUR DEMOCRACY NOW!
posted by clavdivs at 1:25 PM on December 22, 2010

Ideally they would have waited for the judge to ask for their verdict, then all stood with matching pipes and simultaneously fired up the bowls.
posted by mannequito at 1:38 PM on December 22, 2010

The death penalty issue is not strictly whether someone is opposed or not, it's whether they are *so* opposed that they wouldn't be able to apply the law to the case and facts at hand. The voir dire question is "Are you so opposed to the death penalty that you would refuse to sentence someone to death regardless of how heinous the crime is?" [snipped]

OK, but apparently 50 percent are meeting that standard because 50 percent are being dismissed, according to flarbuse. Do you not think that's a problem?
posted by Marla Singer at 1:46 PM on December 22, 2010

> WERES YOUR DEMOCRACY NOW!

ERE
posted by mmrtnt at 1:56 PM on December 22, 2010 [4 favorites]

A similar thing happened to me while sitting as a potential juror at selection. Four or five of us were asked questions about marijuana law, and we stated our disagreement with current legislation.

Unfortunately, I don't think we had anything to do with the reason the judge threw out the pool. It probably had more to do with the seven or eight people who had quite a lot to say about their feelings on illegal immigration.
posted by Room 101 at 1:59 PM on December 22, 2010 [1 favorite]

I was on a jury about a year ago for a drug case, too. During selection, the prosecutor asked us if we were for legalization of drugs and/or would have a problem convicting someone for drugs. Almost everyone said they were for legalization. I was glowing with Portland, OR pride.

We were all less-sure about crack/cocaine legalization when queried about that specifically, but not hardline against it.

No one was dismissed. The case turned out to be about crack posession and we found him not guilty. But based on the merits of the case (or lack thereof), not nullification.
posted by mrnutty at 2:28 PM on December 22, 2010

I wonder how many of these people declaring their disagreement with the current law when called to jury duty are also lobbying their legislators to get the law changed.

There are a couple of problems with this sort of "activism" (so to speak), and one is the suspect motive. Okay, so you genuinely object to the law. But how much do you object to it? Are you willing to sacrifice your time by writing letters or visiting your legislators to voice your objection? Are you willing to donate money to political campaigns, letting candidates know that as a supporting contributor, you want to see the law changed? Because objecting when it excuses you from doing something that lots of people try to get out of is not an especially moving demonstration.
posted by cribcage at 6:13 PM on December 22, 2010 [1 favorite]

But how much do you object to it? Are you willing to sacrifice your time by writing letters or visiting your legislators to voice your objection? Are you willing to donate money to political campaigns, letting candidates know that as a supporting contributor, you want to see the law changed?

I wouid gladly explain to my legislators (Sens. Cornyn and Hutchinson and Rep. Doggett nationally, Gov. Perry, plus the statehouse folks) that I object to their stance on marijuana legalization, but I have to admit it's pretty low on the list of reasons I want to throw the bastards I want gone out of office. I wish that I had the luxury of picking my elected officials on their stance on drug legalization and not on things like whether they think we should secede from the union again. Governor Goodhair, in fact, is one of the reasons I'm skeptical of nullification: the laws he'd like to nullify give me plenty of qualms on the subject of nullification.
posted by immlass at 6:20 PM on December 22, 2010

I was in the pool for a drug related case in LA recently. A woman before me in the questioning said she couldn't give someone jail time for a drug offense, and the judge somewhat angrily sent her to a civil pool the next day.

I answered all of the questions honestly, which included my belief that all drugs should be legal and regulated, and "yes"s to "have you seen an undercover arrest", "have you seen drugs", "have you seen drugs sold", and "do you know anyone that was convicted of a drug offense"

Unshockingly, I was the first preemptory challenge.

I'm pretty torn on the nullification thing. Sure, drug laws are stupid, but I'm sure there are people who think laws that prevent someone from beating a black man who whistles at their white girlfriend are stupid, too.

(I'm sure there are more contemporary examples I could come up with, but I think that illustrates the point well enough)
posted by flaterik at 8:26 PM on December 22, 2010

I'm pretty torn on the nullification thing. Sure, drug laws are stupid, but I'm sure there are people who think laws that prevent someone from beating a black man who whistles at their white girlfriend are stupid, too.

Sure, and that's the problem. Racist jurors refused to convict white men of lynchings in the South, and that's obviously awful. But, and I've said this in previous MeFi discussions on the subject, complaining about jury nullification is like complaining about the weather because it's an inherent part of the jury system. We take steps to try to prevent it (e.g. juror oaths, prohibiting lawyers from arguing nullification, questions about biases during voir dire, etc...), but fundamentally, the jury system is about assigning the role of adjudication of disputed facts to juries. Short of taking that role away from the jury, there's no stopping a juror from insisting that they don't believe the evidence meets the state's burden. As soon as you start telling jurors "no, you're wrong" when you disagree with them, you don't have a jury system anymore.
posted by zachlipton at 8:44 PM on December 22, 2010

As much as I disagree with overzealous drug laws, I find it very troubling that so many people are supportive of this type of activism by jurors. There are legitimate ways to effect the legislative process, and that would be a more appropriate response than simply refusing the apply the laws of the state when one has been empanelled for that very purpose. If you don't feel that you can consider a case on its merits, according to the current laws, you shouldn't agree to sit in the jury box.

Just because we agree with the jurors about these particular laws doesn't mean the practice itself is defensible.
posted by Pomo at 12:41 PM on December 23, 2010

Pomo, this is part of the design of the jury based system. Baxi's concept of the juror as an active participant, a "strategic critic and subverter...resisting, ambushing, waylaying, disorientating, the mega-structures[1]" is precisely celebrating this.

Forsyth also talks about this in the context of the old currency fraud laws where the only punishment was death. Juries just refused to convict. As he put it, "Thus it is that the power which juries possess of refusing to put the law in force has, in the words of Lord John Russell, `been the cause of amending many bad laws which the judges would have administered with professional bigotry, and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made, can not long prevail in England.'"[2]

It's not indefensible activism, it's how the system is designed to work. It is *explicitly* to protect against injustice.

[1] Glenn, HP (2005) On Common Laws pp.66
[2] Forsyth, W (1971) History of Trial by Jury pp.367-368
posted by jaduncan at 2:19 PM on December 23, 2010 [1 favorite]

And yes, part of me is slightly embarrassed to have used citations in a Mefi comment. ;)
posted by jaduncan at 2:20 PM on December 23, 2010