Pubdate: Sat, 25 Dec 2010
Source: Los Angeles Times (CA)
Page: Front Page, continued on page A21
Copyright: 2010 Los Angeles Times
Author: Kim Murphy, Reporting from Seattle


In Cases Involving Small Amounts, Some People Aren't Willing to 
Follow the Law in Court.

It seemed a straightforward case: A man with a string of convictions 
and a reputation as a drug dealer was going on trial in Montana for 
distributing a small amount of marijuana found in his home -- if only 
the court could find jurors willing to send someone to jail for 
selling a few marijuana buds.

The problem began during jury selection last week in Missoula, when a 
potential juror said she would have a "real problem" convicting 
someone for selling such a small amount. But she would follow the law 
if she had to, she said.

A woman behind her was adamant. "I can't do it," she said, prompting 
Judge Robert L. Deschamps III to excuse her. Another juror raised a 
hand, the judge recalled, "and said, 'I was convicted of marijuana 
possession a few years ago, and it ruined my life.'" Excused.

"Then one of the people in the jury box said, 'Tell me, how much 
marijuana are we talking about? ... If it was a pound or a truckload 
or something like that, OK, but I'm not going to convict someone of a 
sale with two or three buds,'" the judge said. "And at that point, 
four or five additional jurors spontaneously raised their hands and 
said, 'Me too.'"

By that time, Deschamps knew he had a jury problem.

"I was thinking, maybe I'll have to call a mistrial," he said. "We've 
got a lot of citizens obviously that are not willing to hold people 
accountable for sales in small amounts, or at least have some deep 
misgivings about it. And I think if I excuse a quarter or a third of 
a jury panel just to get people who are willing to convict, is that 
really a fair representation of the community? I mean, people are 
supposed to be tried by a jury of their peers."

The Missoula court's dilemma was unusual, yet it reflects a 
phenomenon that prosecutors say they are increasingly mindful of as 
marijuana use wins growing legal and public tolerance: Some jurors 
may be reluctant to convict for an offense many people no longer 
regard as serious.

"It's not on a level where it's become a problem. But we'll hear, 'I 
think marijuana should be legal, I'm not going to follow the law,'" 
said Mark Lindquist, prosecuting attorney in Pierce County, Wash. "We 
tell them, 'We're not here to debate the laws. We're here to decide 
whether or not somebody broke the law.'"

Twelve states plus the District of Columbia have decriminalized 
possession of small quantities of marijuana. Led by California in 
1996, 17 states have laws that allow medical use of marijuana.

But federal authorities have continued to pursue prosecutions in 
those states, prompting increasing calls among drug-law reform 
advocates for juries to follow their consciences and refuse to 
convict -- a legal concept known as jury nullification, widely used 
during Prohibition and in the Jim Crow-era South.

"This is one of the first times in a number of years there's a 
general discussion around this powerful but rarely used jury tool," 
said Allen St. Pierre, executive director of the National 
Organization for the Reform of Marijuana Laws. "But going back 20 
years plus, there's been some tumult in the courts where the issue is 
cannabis and the person being prosecuted wants to turn to the jury 
and say, 'Yes, I am guilty, and here's why.'"

The phenomenon is difficult to measure, St. Pierre and several others 
said, because the term "jury nullification" is rarely invoked; 
defendants with substantial evidence against them are simply 
acquitted, or juries deadlock.

"Sometimes, we're not told what the reason was, whether it was 
nullification or they just had a factual question about the case; we 
just don't know," said Ian Goodhew, deputy chief of staff for the 
King County prosecutor's office in Seattle.

"Some [prospective] jurors will honestly tell us that they don't 
think they can follow the law because they think the law's wrong and 
should be changed. At that point, we ask the judge to consider 
dismissing them," he said. "As attitudes change more and more, that's 
a problem we could face in trying cases to a jury. You could have 
that issue trying before a judge too if a judge has a strong opinion 
on the validity and necessity of those kinds of laws."

St. Pierre said he was convinced that was what happened in the case 
of Northern California pot activist Ed Rosenthal, whose conviction on 
federal charges in 2003 prompted prosecutors to seek a 61/2-year 
sentence. Rosenthal instead was sentenced by U.S. District Judge 
Charles Breyer to a single day -- in part reflecting the dismay of 
eight jurors who said after the trial that they would have voted to 
acquit Rosenthal had they known his pot was intended for medicinal use.

"The judge nullified the law," St. Pierre said. "He totally ignored 
the sentencing guidelines."

Last year in Illinois, which has no medical marijuana law, Vietnam 
veteran Loren Swift, who says he uses marijuana to relieve pain and 
post-traumatic stress, was charged in LaSalle County after police 
found 25 pounds of marijuana and 50 pounds of marijuana plants in his 
home. He was acquitted after only two hours of jury deliberations.

"Some of the jurors got up and they started hugging the guy," said 
Peter Siena, the deputy prosecutor who tried the case.

"It's becoming an increasing problem. People just don't seem to care 
about marijuana cases anymore," said Brian Towne, the LaSalle County 
prosecuting attorney.

The issue is ripe in Montana, which is home to the headquarters of 
the Fully Informed Jury Assn., a national group that encourages 
jurors to nullify laws they believe are unjust.

Jury nullification never became an issue in the Missoula drug case; 
there was never a jury. While Deschamps was wrestling with what to do 
during a recess, the defendant, Touray Cornell, agreed to accept a 
conviction on a felony count of distribution of his one-sixteenth of 
an ounce of dangerous drugs. He was sentenced to 20 years, with 19 
years suspended to run concurrently with the sentence on another 
conviction for conspiring to stage a set-up robbery at a casino.

The prosecutor, Andrew Paul, declined to discuss the case, except to 
say that Cornell's neighbors had been "complaining about his brazen 
drug dealing."

"The jury of course knew none of that stuff," Deschamps said. "What 
they knew was some guy here was charged with criminal sale of a very 
small amount of marijuana. Were they going to hang him for that?"

The judge, a former prosecutor, said he voted for Montana's medical 
marijuana initiative in 2004, which has become highly controversial 
in part because its beneficiaries have become so numerous: More than 
12,000 residents hold cards entitling them to use the drug for 
sometimes doubtful medicinal purposes.

"My personal view, I think for the most part we should legalize 
marijuana and be done with it. Because I think it's created way more 
havoc and trouble than it's worth," Deschamps said. "But when you get 
some guy [like Cornell] that just comes and rubs it in your face...."
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