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PLN mentioned in article re Missouri jury nullification case

Missoulian, Jan. 1, 2011.
PLN mentioned in article re Missouri jury nullification case - Missoulian 2011

Pot case ‘mutiny’ leaves ripples for other drug cases

By GWEN FLORIO of the Missoulian
Posted: Saturday, January 1, 2011 11:45 pm

Call it the Pot Shot Heard 'Round the World.

Oh, wait. Somebody already did that.

The Examiner online news site - one of many news organizations that picked up on the story of a Missoula jury pool that dug in its heels last month at the prospect of trying a case involving "a couple of buds" of marijuana - put a variation of that headline on its story.

Others likewise had fun with it. "The Great Montana Marijuana Mutiny," the Wall Street Journal's legal blog termed it.

"Where There's Smoke, There's Change," pronounced the Toronto Star.

And Huffington Post declared in a possible first that "Sanity Broke Out in Missoula, Montana, Today."

Headline hijinks aside, the jury pool's action - and the reaction to it - has serious ramifications for continued prosecution of low-level nonviolent drug crimes, not just in Missoula County but around the country.

"It was almost like a slap in the face to the system," said John Zeimet, of the moment on Dec. 16 when he watched his fellow prospective jurors, one after another, tell Missoula County District Judge Dusty Deschamps that not only were they disinclined to convict, but wondered aloud why taxpayer money was being wasted on the case.

"The people stood up and spoke out."

The story "hit a nerve" around the country, said Ethan Nadelmann, executive director of the national Drug Policy Alliance that advocates drug law reform.

"It shows the emperor-has-no-clothes dimension to what happened. It's an expression of what many people feel - that marijuana possession should no longer be illegal," he said.

A Gallup Poll released Oct. 28 showed 46 percent of all Americans favor legalizing marijuana use. "A new high," Gallup called it, representing a huge generational shift from the 1960s and '70s, when 8 in 10 people queried by Gallup opposed its legalization.

In the 2010 poll,

58 percent of those in the western United States support legalization. The poll has a margin of error of 4 percentage points.

Count Deschamps among that 58 percent.

The judge and former Missoula County attorney said he's "more or less" convinced that marijuana should be legalized in some form, despite being "much alarmed at what I consider to be rampant abuse of what I think was a well-intentioned initiative" - that being the 2004 statewide voter initiative that legalized medical marijuana in Montana. Deschamps also voted for that initiative.

"We've seen some downside in the medical marijuana thing, but I'm reasonably convinced that, over the years, I haven't seen very many criminals go out and commit horrible crimes under the influence of marijuana. Alcohol is 10 times the problem marijuana is, a hundred times."

Zeimet, a 53-year-old truck driver from Huson, also thinks marijuana ought to be legalized, and - like many other members of the Dec. 16 jury pool - objected to the expense of trying Teuray Cornell on a drug possession charge.

"It upset a lot of people," he said. "You're wasting the people's time and the city's time and money to do something silly and stupid like this."


Lost in the national hullabaloo about the Missoula jury pool was the fact that Cornell also was being tried on a felony charge of drug distribution.

However, potential jurors never got around to that aspect of the case, getting hung up almost immediately on the possession issue.

"I think if it had gone to trial, I would have been able to convict the young man" on the felony charge, said Brad Hege, 49, of Missoula, another member of the jury pool.

But when it came to the possession charge, Hege - he, too, thinks marijuana should be legalized - said "the jury almost went crazy. It was like, ‘Holy cow, are you kidding me?' when they said just two buds."

So many objected to the possession charge that Deschamps called a recess.

"The Court advised of its concern with some of the potential jurors' perspectives regarding the Defendant's charges against him and is inclined to call a mistrial," according to court papers filed in the case.

During the recess, Cornell agreed to an Alford plea, in which he didn't admit guilt, on the felony charge. His plea agreement called for a 20-year sentence, with 19 suspended, to run concurrently with a previous sentence on a felony charge of conspiracy to commit theft. The misdemeanor possession charge was dropped.

"After the judge brought everybody back in," said Zeimet, "he said: ‘This is going to set a precedent on future things.' "


Missoula County Attorney Fred Van Valkenburg declined to comment on the effect, if any, of the incident on future prosecutions.

But what happened so publicly in Missoula has been going on quietly in black communities for years, according to Paul Butler, a former federal prosecutor who is a professor and associate dean at Georgetown University's School of Law.

"It happens all of the time in the Bronx, the District of Columbia, Oakland - mostly in districts with a majority of people of color," said Butler, who explored the issue in his book, "Let's Get Free: A Hip-Hop Theory of Justice," and on a "60 Minutes" interview last year.

"We (as prosecutors) were told that jurors thought drug cases were selectively prosecuted against blacks and didn't want to send another black man to jail," especially for minor offenses, said Butler.

U.S. Justice Department statistics show that nationwide in 2008, nearly 22 percent of prisoners under state jurisdiction for drug crimes were black, compared to only

14 percent who were white. Drug offenses comprised the largest category for which African-Americans were incarcerated, as opposed to property crimes such as burglary and fraud for white people.

"Martin Luther King" jurors, Butler calls those who nullify cases. "They would engage in strategic jury nullification designed to safely reduce the number of people in prison for non-violent drug crimes, and to send the message that ‘we the people' ain't gonna take it anymore," Butler wrote in Prison Legal News last year.

Jury nullification - when a jury opts for acquittal regardless of evidence - isn't quite what happened here because the jury hadn't actually been seated.

Still, Butler said what happened in Missoula fits into what he calls "Nullification 2.0," when such protests move beyond race into larger philosophical disagreements with the law.

"One of the most common questions I'd get would be from white people wondering, ‘Why can't white people use nullification?' " said Butler. "When I heard about this case in Missoula, I thought, ‘This is exactly what I was talking about.' "

Cornell, the defendant in the Missoula case, is black; members of the jury pool were white.

Iloilo Marguerite Jones, executive director of the Montana-based national Fully Informed Jury Association, a jury empowerment group, called the Missoula jury pool's action "elegant, honest and forthright."

"I hope that there will be a blossoming, a fluorescence of awareness that our government officials must prioritize how they spend our tax dollars," she said.

Deschamps, who was quoted on the case in both the New York Times and Los Angeles Times, said he's still hearing from people who are either furious with him over Cornell's 20-year sentence on the felony charge - "these callers are going to mount a campaign to have me de-robed or at least defeated" - or "who thought I looked like a real greenie."

The only likely fallout he foresees is that "the county attorney's office is going to look real carefully at future cases involving the sale of marijuana, at least the sale of small amounts. ... Hopefully the other feature won't be that I'll be run out of office in the next election."