JURY POOL IN MARIJUANA CASE STAGES 'MUTINY'

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.

"A mutiny," said Paul.

"Bizarre," the defense attorney called it.

In his nearly 30 years as a prosecutor and judge, Deschamps said he's
never seen anything like it.

"I think that's outstanding," John Masterson, who heads Montana NORML
(National Organization for the Reform of Marijuana Laws), said when
told of the incident. "The American populace over the last 10 years
or so has begun to believe in a majority that assigning criminal
penalties for the personal possession of marijuana is an unjust and a
stupid use of government resources."

Masterson is hardly an unbiased source.

On the other hand, prosecutor, defense attorney and judge all took
note that some of the potential jurors expressed that same opinion.

"I think it's going to become increasingly difficult to seat a jury
in marijuana cases, at least the ones involving a small amount,"
Deschamps said.

The attorneys and the judge all noted Missoula County's approval in
2006 of Initiative 2, which required law enforcement to treat
marijuana crimes as their lowest priority -- and also of the 2004
approval of a statewide medical marijuana ballot initiative.

And all three noticed the age of the members of the jury pool who
objected. A couple looked to be in their 20s. A couple in their 40s.
But one of the most vocal was in her 60s.

"It's kind of a reflection of society as a whole on the issue," said Deschamps.

Which begs a question, he said.

Given the fact that marijuana use became widespread in the 1960s,
most of those early users are now in late middle age and fast
approaching elderly.

Is it fair, Deschamps wondered, in such cases to insist upon
impaneling a jury of "hardliners" who object to all drug use,
including marijuana?

"I think that poses a real challenge in proceeding," he said. "Are we
really seating a jury of their peers if we just leave people on who
are militant on the subject?"

Although the potential jurors in the Cornell case quickly focused on
the small amount of marijuana involved, the original allegations were
more serious -- that Cornell was dealing; hence, a felony charge of
criminal distribution of dangerous drugs.

Because the case never went to trial, members of the jury pool didn't
know that Cornell's neighbors had complained to police that he was
dealing from his South 10th Street West four-plex, according to an
affidavit in the case. After one neighbor reported witnessing an
alleged transaction between Cornell and two people in a vehicle,
marijuana was found in the vehicle in question.

The driver and passenger said they'd bought it from Cornell, the
affidavit said. A subsequent search of his home turned up some burnt
marijuana cigarettes, a pipe and some residue, as well as a shoulder
holster for a handgun and 9mm ammunition. As a convicted felon,
Cornell was prohibited from having firearms, the affidavit noted.

Cornell admitted distributing small amounts of marijuana and
"referred to himself as a person who connected other dealers with
customers," it said. "He claimed his payment for arranging deals was
usually a small amount of marijuana for himself."

Potential jurors also couldn't know about Cornell's criminal history,
which included eight felonies, most of them in and around Chicago
several years ago. According to papers filed in connection with the
plea agreement, Cornell said he moved to Missoula to "escape the
criminal lifestyle he was leading," but he's had a number of brushes
with the law here.

Those include 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.

In sentencing him Friday, Deschamps referred to him as "an eight-time
loser" and said, "I'm not convinced in any way that you don't present
an ongoing threat to the community."

Deschamps also pronounced himself "appalled" at Cornell's personal
life, saying: "You've got no education, you've got no skills. Your
life's work seems to be going out and impregnating women and not
supporting your children."

The mother of one of those children, a 3-month-old named Joy who
slept through Friday's sentencing, was in the courtroom for Friday's
sentencing. Cornell sought and received permission to hug his
daughter before heading back to jail.

Deschamps sentenced Cornell to 20 years, with 19 suspended, under
Department of Corrections supervision, to run concurrently with his
sentence in the theft case. He'll get credit for the 200 days he's
already served. The judge also ordered Cornell to get a GED degree
upon his release.

"Instead of being a lazy bum, you need to get an education so you can
get a decent law-abiding job and start supporting your family," he said.

Normally, Paul said after the sentencing, a case involving such a
small amount of marijuana wouldn't have gone this far through the
court system except for the felony charge involved.

But the small detail in this case may end up being a big game-changer
in future cases.

The reaction of potential jurors in this case, Paul said, "is going
to be something we're going to have to consider."