JURIES ARE GIVING POT DEFENDANTS A PASS

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...."