Posted on 12/22/2010 8:01:24 PM PST by Notary Sojac
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.
And he didn’t.
During the recess, Paul and defense attorney Martin Elison worked out a plea agreement. That was on Thursday.
On Friday, Cornell entered an Alford plea, in which he didn’t admit guilt. He briefly held his infant daughter in his manacled hands, and walked smiling out of the courtroom.
“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.
*****
“I think that’s outstanding,” John Masterson, who heads Montana NORML (National Organization for the Reform of Marijuana Laws), said when told of the incident. “The American populace over the last 10 years or so has begun to believe in a majority that assigning criminal penalties for the personal possession of marijuana is an unjust and a stupid use of government resources.”
Masterson is hardly an unbiased source.
On the other hand, prosecutor, defense attorney and judge all took note that some of the potential jurors expressed that same opinion.
“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?”
Although the potential jurors in the Cornell case quickly focused on the small amount of marijuana involved, the original allegations were more serious – that Cornell was dealing; hence, a felony charge of criminal distribution of dangerous drugs.
Because the case never went to trial, members of the jury pool didn’t know that Cornell’s neighbors had complained to police that he was dealing from his South 10th Street West four-plex, according to an affidavit in the case. After one neighbor reported witnessing an alleged transaction between Cornell and two people in a vehicle, marijuana was found in the vehicle in question.
The driver and passenger said they’d bought it from Cornell, the affidavit said. A subsequent search of his home turned up some burnt marijuana cigarettes, a pipe and some residue, as well as a shoulder holster for a handgun and 9mm ammunition. As a convicted felon, Cornell was prohibited from having firearms, the affidavit noted.
Cornell admitted distributing small amounts of marijuana and “referred to himself as a person who connected other dealers with customers,” it said. “He claimed his payment for arranging deals was usually a small amount of marijuana for himself.”
Potential jurors also couldn’t know about Cornell’s criminal history, which included eight felonies, most of them in and around Chicago several years ago. According to papers filed in connection with the plea agreement, Cornell said he moved to Missoula to “escape the criminal lifestyle he was leading,” but he’s had a number of brushes with the law here.
Those include misdemeanor convictions for driving while under the influence and driving with a suspended license, and a felony conviction in August of conspiracy to commit theft, involving an alleged plot last year to stage a theft at a business where a friend worked, the papers said. He was out on bail in that case when the drug charges were filed.
In sentencing him Friday, Deschamps referred to him as “an eight-time loser” and said, “I’m not convinced in any way that you don’t present an ongoing threat to the community.”
Deschamps also pronounced himself “appalled” at Cornell’s personal life, saying: “You’ve got no education, you’ve got no skills. Your life’s work seems to be going out and impregnating women and not supporting your children.”
The mother of one of those children, a 3-month-old named Joy who slept through Friday’s sentencing, was in the courtroom for Friday’s sentencing. Cornell sought and received permission to hug his daughter before heading back to jail.
Deschamps sentenced Cornell to 20 years, with 19 suspended, under Department of Corrections supervision, to run concurrently with his sentence in the theft case. He’ll get credit for the 200 days he’s already served. The judge also ordered Cornell to get a GED degree upon his release.
“Instead of being a lazy bum, you need to get an education so you can get a decent law-abiding job and start supporting your family,” he said.
Normally, Paul said after the sentencing, a case involving such a small amount of marijuana wouldn’t have gone this far through the court system except for the felony charge involved.
But the small detail in this case may end up being a big game-changer in future cases.
The reaction of potential jurors in this case, Paul said, “is going to be something we’re going to have to consider.”
I have often thought if I were called to testify to “the truth, the WHOLE truth, and nothing but the truth”, I would have to object when they would not allow me to tell the WHOLE truth as so often happens during trials.
I think you’re right, I see lots of marijuana users in treatment for other reasons, usually marijuana does not cause a person to commit serious crimes.
I think you’re right, I see lots of marijuana users in treatment for other addictions, usually marijuana does not cause a person to commit serious crimes.
Time for me to grow up some more?
Well, I'm afraid I've just gotten more conservative as I've grown older and I don't think that's going to change. The "buds" they found sound to me like dead plants. I guess if you want to see them as something more spiritual or cosmic, you have a right to your own personal view.
Anyway, the older I've gotten, the more clearly I've been able to see that we really need to get ahold of the size of government. This may be hard for you to believe, but our Founding Fathers did not prosecute eachother for possessing dead plants, even the ones called "buds."
I have no problem with prosecuting people for dangerous conduct and if this guy is guilty of some as yet unpunished dangerous conduct, then prosecute him for the dangerous conduct.
Just don't waste our time and money prosecuting people for having dead plants, cursing, not keeping their nails clipped, etc.
This is what juries need to start doing in firearms cases such as the one in NJ where the guy got 7 years for legally transporting firearms legally purchased.
How so? Jurors are never given the defendant's previous record. They are expected to decide each case on its own merits.
“It’s called jury nullification. Any juror can judge the law rather than the defendant if that’s what he/she decides to do.”
This is a really important point. Not sure if this situation is the same. Here they couldn’t seat a jury because no jurors were selected as they were up front and said no i wouldn’t convict.
Jury nullification as i understand it is that after jury is seated they refuse to convict on grounds that the law itself is not valid. Judges do not inform the jury that is a possible outcome.
I remember seeing flyers calling for “fully informed jury” amendment.
It may be a valuable tool in confronting a central government takeover. It is from English common law I believe and just somehow never got off the books. Most of the time judges are very intimidating to jurors in their jury instructions — about which many deals are made between counsel and court prior to jury instruction and retirement.
I remember a 40’s historical movie wherein the jurors refuse to convict and the judge locks them up WITHOUT TOBACCO and their retort: Are we not an English jury?
They were suckered because they let the drug dealing felon totally walk on their case, they didn’t care about Montana law.
The guy could not have asked for a better set of people to have shown up in his support.
I wonder what they look like.
Anyone who has committed eight felonies should never leave prison again, I don’t care if it was for tearing tags off mattresses. Or better yet, just hang him.
This was the state of Montana, fewer than a million people, these were their own drug laws.
I worked in the criminal justice system for 5 years.
The documentation is abundant.
I’ll put together a bibliography over the Xmas weekend and send it to you.
P.S. If you look a little deeper into the laws of Montana (or any state), you'll find that prosecutors are given discretion to prosecute or to abstain from prosecuting violations of law.
But, beyond all that, think about what Jefferson, Madison or Washington might have thought about searching one of their Virginia neighbor's farms and prosecuting him for having some disfavored dead plants on the farm. There is a reason that we have trouble imaigining them supporting such conduct. They really did believe in limited government and liberty. It wasn't just a lot of talk for them.
LOL, great, a pot head.
Something that always gets me about cases like this is the way one of the very first things that are brought up is the idea of “NULLIFICATION”.
Like that’s some kind of cosmic vampire or something.
That’s simply not true. There is a reason, and if a person thinks about it, it makes sense.
The founders didn’t get into the details of what constituted a “crime”, per se.
Instead, they left it to the jury. The legislature has the power to try to define crime, but it is still in the power of the jury.
If the jury cannot agree UNANIMOUSLY that a crime has been committed, then there can be no conviction. This is based on something I think the founders took as a truth, that THE PEOPLE ultimately knew how to govern themselves.
If unanimous agreement cannot be reached, then what we talking about is not so much FACT, as it is OPINION.
We each have an idea of what is right and wrong. In some cases we agree, in others we might disagree.
But as a protection of those accused of high crimes, we must ALL AGREE to get a conviction.
You know, it’s a pretty darn good setup!!
We can't afford any more big government baloney.
Buds! As I get older, it becomes easier to see just how much baloney there is in government.
At least you finally got into your drug agenda, who cares about Montana.
I don't know why you want to try to personalize this, but I can tell you that if you use any drugs or alcohol, you use more than me. I'm a teetotaler.
If I am guilty of having tried to push an agenda on you, it's an agenda of smaller government. I recognize that some folks don't feel the government is doing enough yet.
We're all different and that's what makes life so interesting, I guess. I'm not trying to make you feel guilty for your views. ;-)
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