Jury pool "mutiny" in marijuana case

A jury pool in Missoula, Montana staged a "mutiny" last week when asked if they'd be willing to convict someone for possession of 1/16 ounce of marijuana. The vast majority of jurors agreed that the case was ridiculous. From Billings Gazette:
“I thought, ‘Geez, I don’t know if we can seat a jury,’ ” said (district Judge Dusty) Deschamps, who called a recess.

And he didn’t.

During the recess, (Deputy Missoula County Attorney Andrew Paul) 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.

"Missoula District Court: Jury pool in marijuana case stages ‘mutiny’" (Thanks, Ed Szylko!)


  1. I like how they discarded the jury for being too pro-marijuana, but would have seated them if they were strictly anti-marijuana.

    How is it then a jury of your peers, if you have to go out of your way to find jury members that support a fringe stance like that? I thought a jury was supposed to be a random sampling, representative of the population as a whole. If that’s the stance of the average person, why can a judge cherry pick people with an unpopular opinion?

  2. Interesting: according to the article the defendant in question also faced a felony charge of criminal distribution of dangerous drugs. It looks like the prosecution had it out this guy for the other things they think he’s guilty of so they used the ridiculous charge over this 1/16th of an ounce to get him on whatever they could.

    No excuse, of course- anyone who supports a law that would take a parent away from a child over a tiny amount of a relatively harmless drug needs to have their head examined.

    1. Brainspore, you are through no fault of your own an innocent who is unfamiliar with the reality of the police/court mindfuck.

      Police commonly charge people with felonies that they do not deserve and that are not even a tiny bit applicable to the actual incident. I presume they do this so that the smaller charge will stick. Sadly, I know this from personal experience. The DA pushes the charges through full throttle with no regard for the reality of what occurred or did not occur. They only read a very biased police report and accept blatant falsehoods as truth. It is only at the pretrial that the defendant can even begin to be heard in any teeny tiny way and even then the judge can be capricious and unaware of the specifics of the actual laws in question.

      So this person my not be guilty of something bigger as you imply. My bet is that they are not.

  3. The problem with this case is that the accused had priors, which included “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.”

    This wasn’t some innocent college kid who got busted in the parking lot with a couple of joints. This guy is a career bad dude, and he got to walk away from this one.

    1. “this one” absolutely should not be a crime, regardless of any other charges or history. I hope you’re not in any way associated with our fine legal “system”.

    2. He was charged with 1/16 oz pot. He wasn’t on trial for having a shady background. A person’s background is only supposed to come up during sentencing, not during a guilt/innocence determination. A person is supposed to be tried on the merits of the evidence only.

    3. Priors don’t mean shit, either this case in front of court is sound and just or it isn’t, or we’re just telling all criminals that they’ve been declared enemies of humanity and that crime is the only way left for them to prosper. I’m all for taking the Don down for tax evasion, but this is a case of a law that shouldn’t exist, certainly not a crime punishable by prison time.

      @bkad, yes, maybe zero cases isn’t a smart goal, but as long as there are more than zero, the smart goal is always:

      1. Less than there are now
      2. A large enough reduction to give a meaningful aspirational target
      3. A small enough reduction for police to still take seriously as achievable.

      While it may not be a big problem for you, I live in the UK and I hear about abuses in the US a lot more than I hear about ones over here, far beyond the amount I’d expect from population difference. Then again, the police here aren’t armed outside of units that deal with firearms offences, so the fear of armed gangs roaming the streets picking off kids smoking a little weed or pulling people over for DWB doesn’t apply.

    4. Guess what. Nobody’s squeaky clean. That Miranda warning we all hold near and dear didn’t come about because Ernesto Miranda was a good person with a clean record. Likewise the commonly recognized right to counsel didn’t evolve to be so all encompassing because Clarence Earl Gideon was a /GOOD/ person. These things evolved because the general idea is that we need to protect everyone, including the unpopular folk.

      FWIW, I was called for jury duty a while back. The case in question was simple possession of meth, the witnesses were predominantly (if not exclusively) police officers. The questions being asked were designed to eliminate potential jurors with knowledge of how the legal system worked, with drug experience, who knew people with drug experience, didn’t like police officers, and so-on.

      Given that this was in San Francisco, I pointed out how little I trusted the DA’s office, how disgusted I was by her actions, and was excused post haste. The sitting DA (soon to be state attorney general, save us all…) became embroiled in a big scandal about her failure to disclose pertinent information (criminal convictions, police misconduct, etc) about the witnesses her office called. Her office was also accused of turning a blind eye to corruption in the crime lab (regarding the handling/use of drugs/evidence no less). The case really made me wonder what else was going on or who the accused had pissed off.

  4. See also: Jury Nullification

    How many years before they can’t seat a jury to prosecute somebody for making illegal copies of music and movies?

    1. I think there have been cases where the judge did not permit jury nullification asking for a retrial. What average person that is normal enough to not get bumped knows about that legal relic anymore. In addition what jury is activist enough as a group to be willing to go down for contempt by violating the judges instructions.

      1. In addition what jury is activist enough as a group to be willing to go down for contempt by violating the judges instructions.

        It’s only contempt if the judge finds out about it. The good thing about jury nullification is that you don’t have to state that you’re doing it. In its most basic form you can just vote “no” for conviction.

      2. It is unlawful to prosecute a jury for the verdict it reaches.

        The judge could hold them in contempt, but it wouldn’t stick when they challenged it.

        Also, there is no such thing as an appeal of a not guilty verdict, regardless of the facts of the case.

        Then again, it sounds like this isn’t about jury nullification, but about seating a jury in the first place.

    2. I heartily approve of this ‘failure’ of the ‘justice’ system.

      This wasn’t some innocent college kid who got busted in the parking lot with a couple of joints. This guy is a career bad dude, and he got to walk away from this one.

      And so he should. If the guy should be locked up, then he should be locked up on the basis that he’s been proved guilty of something worth locking somebody up for.

  5. What should happen: end marijuana prohibition.

    What will happen: it will become more difficult for a defendant to get a jury trial.

    1. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

      I’m sorry, Mark, could you please clarify your statement in light of the Sixth Amendment?

      1. The Bill of Rights has been gutted. They really should just burn the parchment at this point. It’s embarrassing to keep it on display now that it no longer has any meaning.

        1. It’s interesting to me that so many threads get comments saying, “That couldn’t possibly have happened because the law says blah, blah, blah.” Don’t we constantly post stories about governments, police, etc. breaking their own laws? The suspension of habeas corpus yanked us back to the first decades of the 13th century. It can certainly get worse, but it can’t really get more shocking.

          1. It can certainly get worse, but it can’t really get more shocking.

            I’m not one of the skeptics you are complaining about so I can’t defend them too strongly.

            But I do defend them in spirit, if only so the position is easier to understand. At least my spin. I don’t think is so noteworthy that people would have a “it’s not all that bad” response to these stories. I can say the legal/enforcement system mostly works for me, in that I go through my life neither harassed by criminals nor harassed by the police. That’s certainly a self-centered line of thinking, and intellectually I realize BAD THINGS HAPPEN, AND WITH SOME FREQUENCY, and morally I know I MUST PAY ATTENTION. But my emotional bias is that cops and lawyers and judges are associated only with good things, like helping me out after my car accident, giving me directions to an awesome desert restaurant, keeping new year’s eve in times square safe, and arresting the wife-beater across the street.

            If others are like me, than there are people who are balancing horror stories like these with their much more benign personal and social experience. Also, Boing Boing news tends toward the singularly unpleasant and sensational (that’s not a bad thing: it is an activist blog). It’s hard to know how representative these stories are. And then is the question, what is an achievable of system breakdown? For example, I would say ‘zero cases of overzealous police’ is not a smart goal in country of 309 million people. (Unachievable, probably; not worth the needed time and money, certainly.) What is the right number?

        2. I’m not the only one among my friends who wonders if we’ll just end up emigrating in disgust before we reach old age.

          Unfortunately, this is probably a human problem rather than a US problem, so moving around to avoid it isn’t a winning strategy in the long run.

    2. Mark, if as you suggest, it becomes more difficult for a defendant to get a jury trial, do you suppose that will result in more defendants being tried without a jury, or in more cases being dropped?

  6. My understanding is that such outcomes were why a jury of peers concept was enshrined in American Justice.

    The concept of “Jury Nullification” is thought to have been envisioned by our founding fathers expressly *FOR* such cases where law was potentially unjust in it’s application. There’s a further VERY controversial implication to cases like the Missoula MT one. Under one theory of law-a case of Jury Nullification would henceforth become precedent for pleadings in similar case law. Like law on pamphlet handouts being currently often wickedly misapplied. It’s only thru the efforts of folks like that Missoula jury that we have a chance of retaining our freedoms. Or a jury potentially siding with the rights of FIJA to pamphleteer on public properties.


    The rationale for that was taught to me as being inherent in another aspect of Juries weighing verdict upon a law’s Prima Facie validity. Forgive me in advance if the exact Juris Latin etc is slightly inaccurate. Anyone having more accurate or topical information, do please educate us.

  7. A jury doesn’t simply vote on the outcome of the case. It has to deliberate until it reaches a unanimous verdict. In the jury room, a single vote of “not guilty” might attract a few grumblings from the other jurors until they can be persuaded to also vote that way. In the courtroom, a single dissent is likely to attract unwanted attention from the judge.

    1. That’s only the case for death penalty cases (I don’t know if there are others), but most cases only require a vote.

      1. That’s only the case for death penalty cases (I don’t know if there are others), but most cases only require a vote.

        I was going to tell you were outright wrong, but maybe it varies by juristiction. In my state, NJ, the jury must be unanimous in its decision for all criminal trials. (http://www.judiciary.state.nj).

    2. A jury doesn’t simply vote on the outcome of the case. It has to deliberate until it reaches a unanimous verdict. In the jury room, a single vote of “not guilty” might attract a few grumblings from the other jurors until they can be persuaded to also vote that way. In the courtroom, a single dissent is likely to attract unwanted attention from the judge.

      I am pretty fucking sure I can find it in me to take a few mean glares by people I will never see again if it spares tossing someone in jail for something that no sane society should consider a crime. There is no precedence for any juror getting into legal trouble for refusing to convict based upon the fact that they feel the law is crap. It would take a pretty supreme act of cowardice to condemn someone to have their liberty stolen from them by the state for something that is clearly unjust to save yourself harmless anger from judges and jurors you will never need to see again.

  8. I became interested in jury nullification through Robert Anton Wilson (Praise “Bob”!). His article “Jury Nullification: Freedom’s Last Chance” is a must-read.

    “Similarly, the present idiotic “war” on drugs will continue indefinitely, at a cost of billions, with further erosion of the Constitution, and with no tangible good results credible to anyone with more than half an inch of forehead. But an informed juror can again cause a mistrial. Certainly, the anti-pot law, the silliest of our drug laws, could not survive, in a nation with at least 70 million pot-heads, if juries knew they had the right of nullification.”


  9. I’m happy to say that I’m not really surprised that this would happen in Missoula, Montana. Montana is often characterized as a very conservative state, but really it is just very libertarian and isolationist. From my experience growing up there, people really don’t care for stupid laws and they aren’t cowed by prosecutors or judges saying what the law is. And considering that this is Missoula, probably a quarter of the jury pool (or more) consisted of pot smokers anyways.

  10. Non of the press reports get too specific, but I think that one prospective juror took a stand and spoke her mind, giving courage to the other prospective jurors.


    Jury Nullification can be argued by neither the prosecutor nor defense – cannot even be mentioned – else there would be miscarriages of justice such as juries refusing to convict a white man for lynching a black man.

    The concept of Jury Nullification also encourages juries and jury members to follow antiquated and unjust morals rather than the law, it encourages them to rule for the simplest and seemingly-most-elegant argument in cases that are necessarily complex (the “I’m tired of thinking” effect) and in a most extreme phenomenon, can cause the nullification through case law or overturning through legislation of laws that are correct and necessary;

    the slippery slope is that it leads to the rule of the mob, instead of the rule of law. Therefore Jury Nullification ought never be argued, never be advocated for, never be touted as a tool easily reached for.

    Neither ought it be outside of the education and awareness of every citizen.

    “I never told my religion, nor scrutinized that of another. I never attempted to make a convert, nor wished to change another’s creed. I have judged others’ religions by their lives, for it is from our lives and not our words that our religions must be read.” — Thomas Jefferson

    As for the availability of jury trials – if I ask for a jury trial and a jury cannot be convened, the court has two options: Drop the case or change venue.

    1. Anecdotes like the one you brought up, the jury not convicting a white man for lynching a black man, have been brought up often as a reason to fear jury nullification. It’s worth considering, although that specific scenario is probably not going to happen today. We can now see that many laws were not “correct and necessary”, as much as they seemed so at the time. In the mid 1800s jurors were refusing to convict abolitionists who violated the Fugitive Slave Law.

      “Modern treatments of abolitionism praise these jury-nullification verdicts for the role they played in helping the anti-slavery cause – rather than condemning them for “undermining” the rule of law and the uniformity of justice.”

      Which “slippery slope” is more slippery? I’m not sure, but it seems like we are better off with the option.

      “In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of government; for there are no oppressions which the government may not authorize by law.” (Lysander Spooner,”Jury Power” by L. & J. Osburn)


  12. I am ambivalent on the whole notion of “jury nullification”. In some cases, like this one, it seems to work. But let’s not forget why jury nullification became verbotten in the legal system in the first place. For almost 100 years, if you were black in the South and a white person committed a crime against you, it didn’t matter how many witnesses there were to the crime — the all-white jury would automatically aquit. In short, jury nullification made a travesty of the notion of justice for minorities.

    Of course, the current system doesn’t seem to be doing much better there…

  13. I’d just like to highlight the word unbiased here.

    A jury of your peers is not supposed to be unbiased–it is supposed to represent the bias of the area where the crime and trial took place. These people clearly did.

  14. Thing is, funksg, we live in a democracy. Every single law was made by people *we* elected, with the exception of the Bill of Rights which gets legacy treatment. If a law is truly unjust, the answer is to elect legislators who will repeal it, not to simply say “I don’t like the law so I’m going to ignore it.” We’ve already tried that alternative and while yes it corrected the occasional injustice, by and large the outcomes were far less happy — jury nullification was the tool via which apartheid was maintained in the South, via voter suppression efforts against blacks (because only registered voters are in jury pools in the South) and all-white juries blatantly ignoring the law to further the oppression of blacks in the South. Only in Libertopia, where all people are a nice shade of beige, minorities don’t exist, juries are fair and unbiased and unicorns are pink and cotton candy grows on trees, does jury nullification work consistently for the common good. In *this* reality, on the other hand, it is often just another tool used to oppress minorities.

    1. While change via the electoral system might work in the long run, is our devotion to electoral change worth risking 10 or 100 convictions under bad laws (like this one)?

      To put it another way, would you trade X dumb marijuana convictions for Y acquittals based on racism?

      I think the answer, in the abstract, comes from Blackstone’s formulation: Better that 10 men escape than that one innocent suffer. Unless there are a huge number of crimes against African-Americans going unprosecuted, the necessity of jury nullification in cases like these is probably going to win the day.

      (And it’s not like jury-nullification-less courts are all that just wrt race. Death penalty issues, for instance.)

    2. Thing is, funksg, we live in a democracy. Every single law was made by people *we* elected, with the exception of the Bill of Rights which gets legacy treatment. If a law is truly unjust, the answer is to elect legislators who will repeal it, not to simply say “I don’t like the law so I’m going to ignore it.”

      Frankly, fuck democracy. 51% of the population saying something is so wrong doesn’t make it wrong. People keep bringing up jury nullification as an instrument of oppression against blacks in the south, but that was small beans next to fucking laws voted in by democratically elected officials that codified discrimination.

      Democracy sucks. It sucks less than the alternatives, but it still sucks. Pot laws are a great example. Here you have a law that if tomorrow all Americans were suddenly forced to pay in full for their ‘crimes’ over their lifetimes, we would literally have half of the nation in jail, many for life. What kind of worthless fucked up system of law do you have when where if the law was actually fully enforced, three out of our last three presidents would be in fucking jail, along with the half of the population. If the laws our great democracy were fully enforced, most Slashdotters would owe the RIAA literally BILLIONS of dollars each for ‘piracy’. Hell, fully enforce copyright law and we would ALL owe billions in potential fines.

      Democracy blows. The best thing about American government are the parts that are not democratic. The Bill of Rights, is one of the best thing about American “democracy”, and it is a document that lays out exactly that people CAN’T have democratically. It is a list of “no matter how bad the dumb masses want it, the answer is NO!”. It is a pretty wonderful document.

      I’ll be all for calling jury nullification a violation of “rule by law” when the law is equally applied to all citizens. Start by dragging off half of the population for drug crimes and then whacking the rest with copyright laws and traffic violations (yes, 1 MPH over the speed limit is illegal), and then I’ll believe this really is a nation of laws that a juror needs to respect even when it defies all common sense. Until then, if I ever find myself on a jury where someone is being prosecuted for a non-violent drug possession charge, I’ll make like a DA that doesn’t toss the entire population of Vermont into the slammer for drug law violations and refuse to prosecute with an entirely clear conscience. If no one wants to toss Bush or Obama into the slammer for breaking drug laws, I am not about to be a party to tossing someone in jail over a stupid law that the 90% of the people I know have also violated.

      Whining that the juries must follow the letter of the law is stupid when we merrily ignore the majority of the nation committing “crimes” and selectively toss in jail only a few. The problem is too many fucking stupid laws brought about by the extreme stupid of democratic decision making. Better than the alternative, but one look at the endless tombs of laws, 99% of which are only selectively enforced, should be evidence to anyone that democracy is hardly the end all and be all.

      1. Well put. The way I see it, nothing can ever stop you having to decide, for yourself, what is just. No god, king, guru or electoral majority can take that responsibility off your shoulders. If you condemn somebody for something harmless, you have abandoned any claims to be a worthwhile, moral human being, and no authority can excuse your failure.

        In addition – these stupid laws often prevent their victims from being able to vote in the future, so if you uphold the law, and do your supposed duty as a juror, you help ensure that future governments reflect the will of the people even less than they do now.

  15. Yes, we live in a democracy. Sometimes the law is so at odds with the popular sentiment of the governed that jury nullification occurs as a result; in lynching cases injustice resulted, in this case, not so much.

    I take this as an interesting example begging the question of the purpose of law. If it is to serve as the community’s covenant, the rules by which the community agrees to live, then perhaps jury nullification should inform the law rather than juries following laws that they no longer wish to enforce. I think that in this case if the outcome is the decriminalization of marijuana, then justice and commonsense will have prevailed.

  16. Thing is, funksg, we live in a democracy. Every single law was made by people *we* elected, with the exception of the Bill of Rights which gets legacy treatment. If a law is truly unjust, the answer is to elect legislators who will repeal it…

    I generally agree, and to that further that end, I think laws should be enforced aggressively and consistently, especially those laws which are currently only enforced when a cop wants to remove you (for either legitimate or illegitimate reasons) but are otherwise ignored. That way, people would be more likely to know what the law is, and therefore more likely to make it a political issue. The huge side benefit is more fairness; it’s not supposed to be law enforcement’s job to consider the details of the circumstances (that’s the judiciary) or how the law should apply.

    Frankly, most legal stupidity is invisible to me, because I’ve never been harassed by the police or know anyone who has (and there’s plenty of pot smokers among the people I know). If my friends and I were getting pulled in for every little thing, however, I think we’d take notice pretty quickly.

  17. Some of you may be interested to know that an Australian jury has refused to find guilt in a clear-cut violation of state abortion laws (although no one uses the term jury nullification over here). I hope this helps a little, America:

    For what its worth, as someone who, when growing up, came within a hair’s breadth of being put into foster care by the operation of the drug laws, I can’t accept the idea that in a democracy, we all deserve what gets made law. I can’t accept that people can be destroyed by these laws because, eventually, the majority may vote for better laws. To many families and lives are destroyed while the political process discovers good sense – IF it ever does.

    I can’t accept the divine right of kings, or its modern counterpart, the divine right of majorities. Many issues ought to be off-limits to the criminal system no matter how large the mandate of those enacting the laws. This is why, after all, the Bill of Rights exists, if I’m not mistaken.

    Its wonderful to see the public abandon these vicious puritanical laws (and sad to see that politicians are still in thrall to vicious puritans), but to me, negative freedom trumps majoritarianism anyway. Why should a majority, say, have to agree you can abort a child, smoke a joint or marry a gay lover? They have no stake in what you do, and thus, no valid thing to say about what you do.

  18. The bill of rights is not the basis for civil rights as many believe, it is just a few statements that are based on preexisting human rights for free people. We have now clarified in law that anyone over 18 is a freeman even women and minorities.

    Just remember that the government believes that your first amendment rights stop at their convenience, anything beyond that is “Shouting fire in a theater” https://secure.wikimedia.org/wikipedia/en/wiki/Shouting_fire_in_a_crowded_theater
    You might interfere with the recruitment of WW-I soldiers with your pamphlets that point out that there is actually a danger threatening the occupants of the democracy theater.

  19. I haven’t been seated as a juror in about thirty years, even though I’m regularly summoned.

    Every time I am called, I wind up having a judge ask me under oath whether there is any conceivable circumstance under which I would not apply the law as instructed. My reply, since I will not lie under oath, is to ask, “May I clarify the question, Your Honour? Are you asking whether I would convict William Penn when ordered to do so if I had been in Edward Bushell’s seat as jury foreman?”

    I’m always excused at that point. I think the situations under which I’d vote to nullify are vanishingly few: few defendants are William Penn. Nevertheless, I jealously guard my right as a juror to judge the law and the facts of the case.

    I do, however, draw the line short of falsely swearing that I am ignorant of the right – which is what judges appear to expect of me. I fully expect some day to be held in contempt for knowing about a juror’s right to vote his conscience.

  20. The two overarching to me aspects of true justice are if the defendant’s a danger to society- and the LAW being also examined is a danger to society. The mere “Rebellion against Authority’s Purview” was not IMHO the rationale for Nullification. Nor was/is there ever a reason to overlook the concept of if a PERSON is or is NOT a danger to society in the big picture.

    Whether it’s something socially prohibited or approved but legally prohibited also IMHO is not the primary ethical realm of nullification. The primary ethos for nullification’s to remedy injustice by adding one more layer of “checks and balances” to government’s operating procedures

    The last words on “why” we need to cherish our jury system’s enshrining nullification are liable to be heard by us shortly after we see flashing lights in our rear view mirror or are “Kettled” for using our now apparently deprecated right to assemble and petition for redress etc. And if we fail to remind our society of such reasons? We soon will have cause to hesitate before assembling in protest of anything. Or even more grim- we will be hesitant to post dissent in an online forum like this.

  21. This article doesn’t seem to support the spin that most people are putting on it. Or am I missing something?

    According to the linked article, five of the 27 potential jurors thought the case was a waste of time. First, 5 out of 27 is pretty far from a “vast majority” of the potential jurors (as David describes it in this post). Second, there were still 22 people remaining to make up a 12-person jury. The prosecutor had almost twice as many jurors as he needed – so what exactly was the problem?

  22. I’m not sure if it is clear to all posters that this was not a case of jury nullification, because there was no jury empaneled. That said, the discussion was quite interesting.

  23. Part of the original idea behind a jury system was that 12 men would be unlikely to agree to perpetrate government tyranny against a man who’d done no harm.

    Glad to see the system worked, despite the typical jury instructions that demand the jurist ignore his own conscious and decide the case solely on the facts and letter of the law.

Comments are closed.