"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."
In a case in Illinois:
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.
As more states legalize small amounts of marijuana for recreational or medical use, this could become more of an issue.
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.
The Montana judge says:
"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."
So what happened to the defendant in the Montana case? The jury never got chosen. During a recess, the defendant, charged with distributing 1/16 ounce of pot found in his house, pleaded guilty.
[T]he 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.
More on the Montana case here and here.
When a law allows a defendant, no matter how many strikes he has, to be sentenced to 20 years for 1/16 of an ounce of any drug, the problem is the law, not the jurors. If prosecutors want to avoid jurors refusing to serve and jury nullification issues when they do get seated, they should be more selective in their charging decisions.
Eliminating jurors who don't believe marijuana should be a jailable offense is not the answer. We'll end up with a skewed system like we have now in death cases, where only death-qualified people (those who state during jury selection they are willing to impose the death penalty) can serve. Death-qualified jurors are more likely to return a guilty verdict. And with more than half the country now preferring alternative punishments to the death penalty, being tried by a death-qualified jury is not a jury of one's peers. By the same token, I would expect that those who say they are willing to send someone to jail over 1/16 of an ounce of pot are probably more likely to return a guilty verdict, and with 46% of Americans favoring legalization of marijuana, such a composition is unlikely to meet the standard of a jury of one's peers.
(Background graphic via Mgnonline, text added.)
