Marijuana laws take a hit in Montana.

The war on drugs took an interesting turn in Montana this week. According to the Billings Gazette, members of a jury pool in a Missoula County District Court made it clear they would not convict someone for possessing a small amount of marijuana.

Touray Cornell, was charged with possession of marijuana and criminal distribution of dangerous drugs. The latter charge is a felony. However, the former charge, a misdemeanor, changed the complexion of the case. During voir dire, jurors repeatedly told the judge and lawyers that they would not vote to convict Mr. Cornell, or anyone, of possessing a 16th of an ounce of marijuana. When one juror wondered aloud why the county was wasting time and money prosecuting the case, the judge asked if others in the jury pool had the same question. Five additional jurors indicated they did. The objecting panel remembers covered a wide swath of ages; two were in their twenties, two were in their forties, and one was in her sixties. These responses caused the judge, Dusty Deschamps, to think, “Geez, I don’t know if we can seat jury,” and call a recess. During a recess, the prosecution and defense worked out a plea agreement. Judge Deschamps sentenced Cornell to twenty years in prison.

Cornell’s attorney wrote a plea memorandum. Part of it said:

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.

Judge Deschamps agreed, telling the Gazette that the panel’s actions were “kind of a reflection of society as a whole on the issue.” Judge Deschamps’s thoughts are echoed by the fact that, in 2006, Missoula County voters passed Initiative 2. The initiative required its law enforcement personal to give marijuana crimes their lowest priority. Judge Deschamps also said, “I think it’s going to become increasingly difficult to seat a jury in marijuana cases, at least the ones involving a small amount.”

The case leads Judge Deschamps to wonder if drug case juries will soon be comprised of only people who are “hardliners” who object to all drug use. He further wonders if such a jury can really be a jury of a defendant’s peers if they are opposed to drug use.

As to the first question, it seems to me that the judge has confused the identity of the hardliners. The hardliners were the folks that said they would refuse to convict a defendant even if they thought he had violated the law. This is contrary to the oath jurors take in Montana. That oath says:

By taking the Oath of Juror, you swear that you will try the mattes at issue and render a true verdict according to the evidence and the law as given. As a juror, you are the judge of all questions of fact. You must act fairly and impartially and are not free to act upon your own personal feelings and emotion.

Put another way, someone who opposes Montana’s drug laws and wants to be on a drug case jury simply has to agree to apply the law as instructed by the judge.

The judge’s second question is more interesting. The judge worries that people who believe drug use is wrong are not really peers of a person charged with a drug crime. What do you think, Mr. Torvik: should the term peer be defined that narrowly? The judge’s definition of peer becomes ludicrous if one substitutes any other crime, e.g., murder, rape, assault, for drug use.