Monday, December 20, 2010

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.


  1. 1) The real problem here is that there are only 11 potential jurors in the entire state of Montana. And they are spread out all over the state.

    2) Since when do jurors blurt out things like "Why is the state wasting its resources on a case like this?" during voir dire? Where I come from, that's a sign that a judge is not in control of the courtroom.

    3) Something is not right when the consensus among all the lawyers in the courtroom is that it will be impossible to assemble a fair jury, and yet the defense and prosecution agree to a plea deal which leads to a 20-year sentence. I see that 19 of the years are suspended, and that he's already served 200 days. But this is just laziness. Call more prospective jurors! Try the case! Do your jobs!

    4) As to your specific question about the judge's musings.... I agree with you. Fact: prospective jurors will say things to get out of jury duty if they get a whiff that there are things they can say to get out of jury duty. Allowing such odors to linger is, once again, bad courtroom management by the judge. If judges are stern about the juror's duty, and about their oath, the jurors invariably rise to the challenge. They do the right thing, if you let them. Saying, "ah, geez, daggone jurors ain't right these days" doesn't cut it.

    5) You have hit the nail on the head in pointing out the illogic in the judge's conception of what "a jury of one's peers means." It doesn't mean "a jury of folks who condone the conduct one is accused of but nevertheless are willing to punish it." It just means "a jury of ordinary Janes and Joes."

  2. Lawyers....the reason why we need justice.

    So, exactly why is cannabis illegal? Was the AMA for it? Was there a panel of doctors or scientists that recommended cannabis be made illegal because of its harm on society?

    I also heard that Nixon ordered a report, the Shafer Report. What did that report suggest we do with cannabis?

    So, are laws for the people or just to keep lawyers busy?

    This is a court of law, young man, not a court of justice. ~Oliver Wendell Holmes, Jr.

  3. So many questions, anonymous! Here are the answers, in order:

    1) "exactly why is cannibis illegal?" For a primer on the complicated process of making laws, see this instructional video.

    2) "was the AMA for it"? Not sure, but probably.

    3) "Was there a panel of doctors..." Please see answer to question number 1.

    4) "What did that report suggest we do with cannibis?" (a) steal it, then (b) smoke it.

    5) "Are laws for the people or just to keep lawyers busy?" Trick question: both.

  4. Clarification on answer #5: this is because lawyers are people too.

  5. I think the real point here is; The public VOTED to make marijuans possession the least priority. The jury pool comes from the regestered VOTERS. When the VOTERS don't get what they VOTED for, .... This is what you get. I mean, come on... Isn't really about what the VOTERS want?

  6. Odd ruling by the Judge. Quash the panel and seat a new one. It is not uncommon to get done with voir dire and then not have enough eligible jurors. I am somewhat surprised the Judge didn't rehabilitate the jurors and get them to recite the stock phrase: I can be fair and impartial.

    Interesting story, however.

  7. UPDATE: Not even Pat Robinson would be able to serve on this jury! Link.

  8. "Something is not right when the consensus among all the lawyers in the courtroom is that it will be impossible to assemble a fair jury, and yet the defense and prosecution agree to a plea deal which leads to a 20-year sentence."

    Seriously. Can you claim ineffective assistance of counsel on a plea deal?

  9. no kidding on the plea deal--what gives?? I think the real issue is that the judge's first name is Dusty.


  10. "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:"

    This author misunderstands the jury selection process. You don't take the oath until voir dire has finished - that's the point of voir dire to remove people who have a bias and cannot execute the oath faithfully. If the author were right than everyone would be required to sit on the jury because the oath compels them to act impartially no matter what they really think. The judge was correct here.


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