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Summum ius summa iniuria--More law, less justice
24 December 2010
Jury Nullification? How about Jury Pool nullification?
The citizens in Missoula Montana staged a mini revolt against the prosecutor, and the court dropped a case because they couldn't seat an entire jury:
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.
The rest of the article, including more information about the defendant than the jury was aware, is here.
Now, you can look at this two ways. It turns out the defendant is a dirtbag with multiple convictions and issues, and should be "out of circulation." But the legal system has become very selective about what information reaches the juror's ears. It wasn't always like that. In this case, the jury pool acted on what it knew about the defendant, which was minimal.
Based on this minimal information, they rebelled, deciding that justice was not being pursued, and announced their refusal to consider a conviction in such a case.
Why is this a good thing? In the era of the founders, since the people were sovereign, and the judges were servants of the people, juries would hear all evidence and legal argument, and judge not just guilt or innocence, or that a case was proven or not proven, but whether or not the law itself was just.
Standard jury trial practice in the USA during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case Stettinius v. U.S., in which it was held that "The defense can argue law to the jury before the court gives instructions." Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. This transition began with motions in limine, to exclude evidence, on which it was felt the jury should not hear the argument because they would be informed of the evidence to be excluded. Later that was expanded to include all legal argument, so that today, that earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal argument is made to the jury.
The power of the judiciary today is much more powerful than 200 years ago. Moreover, the citizens are much more passive. They trust the judges. They doubt themselves. This must end. I hope and believe that the citizenry will feel more empowered by the success of the Tea Party, and the continual spread of information through the free internet. Montana is known for it's libertarian streak. This should act as an example to other individuals.
Reassertion of the power of jury nullification is reassertion of one of the rights that would be covered by the Ninth Amendment to the Bill of Rights.
"A person who doubts himself is like a man who would enlist in the ranks of his enemies and bear arms against himself."