Pubdate: Mon, 03 Jan 2011
Source: Helena Independent Record (MT)
Copyright: 2011 Helena Independent Record
Contact: http://helenair.com/app/contact/letters_to_editor/
Website: http://helenair.com/
Details: http://www.mapinc.org/media/1187
Author: Gwen Florio

Major Ramifications | Jury's Refusal to Hear Case Hits Nationwide Nerve

MISSOULA MARIJUANA 'MUTINY' MUSHROOMS

MISSOULA - Call it the Pot Shot Heard 'Round the World.

Oh, wait. Somebody already did that.

The Examiner online news site - one of many news organizations that 
picked up on the story of a Missoula jury pool that dug in its heels 
last month at the prospect of trying a case involving "a couple of 
buds" of marijuana - put a variation of that headline on its story.

Others likewise had fun with it. "The Great Montana Marijuana 
Mutiny," the Wall Street Journal's legal blog termed it.

"Where There's Smoke, There's Change," pronounced the Toronto Star.

And Huffington Post declared in a possible first that "Sanity Broke 
Out in Missoula, Montana, Today."

Headline hijinks aside, the jury pool's action - and the reaction to 
it - has serious ramifications for continued prosecution of low-level 
nonviolent drug crimes, not just in Missoula County but around the country.

"It was almost like a slap in the face to the system," said John 
Zeimet, of the moment on Dec. 16 when he watched his fellow 
prospective jurors, one after another, tell Missoula County District 
Judge Dusty Deschamps that not only were they disinclined to convict, 
but wondered aloud why taxpayer money was being wasted on the case.

"The people stood up and spoke out."

The story "hit a nerve" around the country, said Ethan Nadelmann, 
executive director of the national Drug Policy Alliance that 
advocates drug law reform.

"It shows the emperor-has-no-clothes dimension to what happened. It's 
an expression of what many people feel - that marijuana possession 
should no longer be illegal," he said.

A Gallup Poll released Oct. 28 showed 46 percent of all Americans 
favor legalizing marijuana use. "A new high," Gallup called it, 
representing a huge generational shift from the 1960s and '70s, when 
8 in 10 people queried by Gallup opposed its legalization.

In the 2010 poll, 58 percent of those in the western United States 
support legalization. The poll has a margin of error of 4 percentage points.

Count Deschamps among that 58 percent.

The judge and former Missoula County attorney said he's "more or 
less" convinced that marijuana should be legalized in some form, 
despite being "much alarmed at what I consider to be rampant abuse of 
what I think was a well-intentioned initiative" - that being the 2004 
statewide voter initiative that legalized medical marijuana in 
Montana. Deschamps also voted for that initiative.

"We've seen some downside in the medical marijuana thing, but I'm 
reasonably convinced that, over the years, I haven't seen very many 
criminals go out and commit horrible crimes under the influence of 
marijuana. Alcohol is 10 times the problem marijuana is, a hundred times."

Zeimet, a 53-year-old truck driver from Huson, also thinks marijuana 
ought to be legalized, and - like many other members of the Dec. 16 
jury pool - objected to the expense of trying Teuray Cornell on a 
drug possession charge.

"It upset a lot of people," he said. "You're wasting the people's 
time and the city's time and money to do something silly and stupid like this."

Lost in the national hullabaloo about the Missoula jury pool was the 
fact that Cornell also was being tried on a felony charge of drug distribution.

However, potential jurors never got around to that aspect of the 
case, getting hung up almost immediately on the possession issue.

"I think if it had gone to trial, I would have been able to convict 
the young man" on the felony charge, said Brad Hege, 49, of Missoula, 
another member of the jury pool.

But when it came to the possession charge, Hege - he, too, thinks 
marijuana should be legalized - said "the jury almost went crazy. It 
was like, 'Holy cow, are you kidding me?' when they said just two buds."

So many objected to the possession charge that Deschamps called a recess.

"The Court advised of its concern with some of the potential jurors' 
perspectives regarding the Defendant's charges against him and is 
inclined to call a mistrial," according to court papers filed in the case.

During the recess, Cornell agreed to an Alford plea, in which he 
didn't admit guilt, on the felony charge. His plea agreement called 
for a 20-year sentence, with 19 suspended, to run concurrently with a 
previous sentence on a felony charge of conspiracy to commit theft. 
The misdemeanor possession charge was dropped.

"After the judge brought everybody back in," said Zeimet, "he said: 
'This is going to set a precedent on future things.' "

Missoula County Attorney Fred Van Valkenburg declined to comment on 
the effect, if any, of the incident on future prosecutions.

But what happened so publicly in Missoula has been going on quietly 
in black communities for years, according to Paul Butler, a former 
federal prosecutor who is a professor and associate dean at 
Georgetown University's School of Law.

"It happens all of the time in the Bronx, the District of Columbia, 
Oakland - mostly in districts with a majority of people of color," 
said Butler, who explored the issue in his book, "Let's Get Free: A 
Hip-Hop Theory of Justice," and on a "60 Minutes" interview last year.

"We (as prosecutors) were told that jurors thought drug cases were 
selectively prosecuted against blacks and didn't want to send another 
black man to jail," especially for minor offenses, said Butler.

U.S. Justice Department statistics show that nationwide in 2008, 
nearly 22 percent of prisoners under state jurisdiction for drug 
crimes were black, compared to only 14 percent who were white. Drug 
offenses comprised the largest category for which African-Americans 
were incarcerated, as opposed to property crimes such as burglary and 
fraud for white people.

"Martin Luther King" jurors, Butler calls those who nullify cases. 
"They would engage in strategic jury nullification designed to safely 
reduce the number of people in prison for nonviolent drug crimes, and 
to send the message that 'we the people' ain't gonna take it 
anymore," Butler wrote in Prison Legal News last year.

Jury nullification - when a jury opts for acquittal regardless of 
evidence - isn't quite what happened here because the jury hadn't 
actually been seated.

Still, Butler said what happened in Missoula fits into what he calls 
"Nullification 2.0," when such protests move beyond race into larger 
philosophical disagreements with the law.

"One of the most common questions I'd get would be from white people 
wondering, 'Why can't white people use nullification?' " said Butler. 
"When I heard about this case in Missoula, I thought, 'This is 
exactly what I was talking about.'"

Cornell, the defendant in the Missoula case, is black; members of the 
jury pool were white.

Iloilo Marguerite Jones, executive director of the Montana-based 
national Fully Informed Jury Association, a jury empowerment group, 
called the Missoula jury pool's action "elegant, honest and forthright."

"I hope that there will be a blossoming, a fluorescence of awareness 
that our government officials must prioritize how they spend our tax 
dollars," she said.

Deschamps, who was quoted on the case in both the New York Times and 
Los Angeles Times, said he's still hearing from people who are either 
furious with him over Cornell's 20-year sentence on the felony charge 
- - "these callers are going to mount a campaign to have me de-robed or 
at least defeated" - or "who thought I looked like a real greenie."

The only likely fallout he foresees is that "the county attorney's 
office is going to look real carefully at future cases involving the 
sale of marijuana, at least the sale of small amounts. ... Hopefully 
the other feature won't be that I'll be run out of office in the next election."
- ---
MAP posted-by: Keith Brilhart