Pubdate: Thu, 21 Sep 2000
Source: Norman Transcript (OK)
Copyright: 2000 The Norman Transcript
Contact:  P.O. Drawer 1058, Norman, OK 73070.
Website: http://www.normantranscript.com/
Author: Jane Glenn Cannon, Transcript Staff Writer

MARIJUANA VIEW LEADS TO MISTRIAL

A juror who believes in the legalization of marijuana brought a Cleveland
County jury's deliberations to a halt Thursday in a case in which a
49-year-old Norman man was accused of possessing marijuana with intent to
distribute.

District Judge William Hetherington declared a mistrial in the case against
Clayton Milo Fox after jurors reported to him they were "hopelessly
deadlocked" at a vote of 11-1 because of one juror's opinion "on principle"
that the law should be changed.

"No amount of time will change that opinion," the jury foreman wrote in a
note to the judge after the six men and six women had been deliberating
about four hours. "We are hung up at a vote of 11-1."

Attached to the jury foreman's note was a copy of an article about "jury
nullification based on belief in a principle," that the juror who opposed
the marijuana law apparently had carried into the deliberations room with
him. The juror gave it to the foreman, who attached it to the note.

Hetherington questioned jurors in open court about the matter to determine
"if at any time they took a vote and agreed on the facts, before one of them
expressed a disagreement based on principle."

But each of the 12 told the judge "there was never an agreement on a
unanimous verdict ... (and) no amount of further deliberations" would do any
good.

"Then I don't see any alternative but to declare this a mistrial based on a
hung jury," Hetherington said.

Fox was also charged with a companion count of possession of a firearm while
in the commission of a felony, but jurors said they could reach no decision
on that count, either.

Hetherington refused to identify publicly which juror was the holdout,
although he did meet privately with the jurors for awhile before letting
them go home.

"I sympathize with the juror's beliefs," defense attorney Fred Shaeffer
said. "Apparently, this juror just refused to accept the fact that
possession of marijuana is a crime, and there are millions of people in the
U.S. who share that belief."

Shaeffer said that he found it sad "that an accused can't get a jury trial
of his peers, with people who can express their opinion that marijuana
should not be against the law, without it ending in a mistrial."

But Assistant District Attorney Scott Palk said he believed the juror's
action was wrong.

"This juror lied on voir dire. This juror was clearly untruthful. We asked
every juror if he or she would and could follow the law as it is written,
and all of them said they could."

Palk said he also asked potential jurors about their feelings on the
country's drug laws, "and no one expressed an opinion that they didn't
believe in them. Clearly, this juror had an agenda, and it wasn't shared
with us ahead of time."

The prosecutor added: "My feeling is this, if you don't like the law, write
your legislator. We tell jurors, specifically, 'don't try to rewrite the
laws' here. That's not what a jury trial is."

Palk said Fox faces a retrial now on the next docket on the same charges.
Fox also has other charges pending against him, including one count of
first-degree rape and one count of child pornography.

Fox testified that he never possessed the 11 baggies of marijuana that the
state alleged were his. The marijuana belonged to his former stepdaughter,
who came to him in the spring of 1999 and asked for a place to stay, he
said.

The then-16-year-old girl told him her mother had kicked her out and that
her husband was in jail, Fox testified. He said he told her she could stay
temporarily in a van he owned.

The girl was arrested on a felony charge on June 30, Fox told the jury, "and
she never came back and got her stuff."

Fox contended he finally went to the van, cleaned it out and discovered two
sacks containing baggies of marijuana. He took it to his bedroom and tried
to decide what he should do about it, he said.

Meanwhile, he said, on Oct. 4 the girl called him and told him that
prosecutors had told her "if she gave them an adult (to prosecute), then
they'd drop her charge."

The next day, he said, police officers showed up at his home that he shares
with his elderly parents and executed a search warrant. They seized the
marijuana and a gun he kept in his bedroom and arrested him, he said.

The rape charge and the child pornography charge pending against Fox
originally were supposed to be included in this trial. However, the judge
remanded those counts back to a special judge for further preliminary
hearing based on a pretrial motion filed by Shaeffer.

The rape charge alleges Fox had intercourse with the teen-ager, and took
obscene pictures of her. Fox also has a separate charge pending against him
of conspiring to commit an armed robbery with the girl.

The girl testified that Fox was her stepfather when she was about 7 and that
she remained close to him, even after her mother left him. She contended she
had seen him with marijuana "on numerous occasions" and that he had offered
her a quarter of an ounce on at least one occasion.

This jury was asked only to consider the drug charges against Fox. Evidence
of other charges pending against him was not allowed in the trial.
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