Jury Nullification In Action: Montana Jury Pool Refuses To Convict For Marijuana Possession

A case in Montana brings to the forefront a power most prospective jurors aren't aware they have.

Doug Mataconis · · 18 comments

An interesting legal tale from Billings, Montana:

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.

It’s called jury nullification, the idea that jurors have the right to refuse to find a defendant guilty because they believe the underlying law is unjust, or because the conduct of law enforcement in the case was unjust in some manner even if the Court didn’t find that it violated the Defendant’s rights. Its been part of the American jury system from the beginning, and has often been a valuable tool in protecting people from overreaching by the state and law enforcement. For example in 1969, the 4th Circuit Court of Appeals said the following:

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

More recently, Courts have resisted jury nullification and the efforts of activists like the Fully Informed Jury Association to inform jury of their long standing common law rights, this general principle still stands, and it’s essentially what happened in this case. As Daniel Mitchell notes, the outcome of the Billings case is also a good sign that the American public is still able to think for itself:

The good people of western Montana certainly have the right attitude about victimless crimes. A jury pool in Missoula County basically told a court that they would not be willing to convict a defendant for possessing a tiny amount of marijuana. Wouldn’t it be wonderful if this happened all over the country and politicians were forced to stop the war on drugs? That would be a Christmas present for the entire nation.

Indeed it would.