“Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”
— Henry David Thoreau, “On the Duty of Civil Disobedience”
Of all the injustices perpetrated by the state, the war on drugs is one of the most outrageously evil. Kidnapping and throwing people into cages for the non-crime of consuming disapproved substances, or for selling them to others, should be condemned by anyone with a sense of justice and morality. It is the prime reason for using jury nullification: to acquit those accused by the state of violating an unjust law, regardless of the facts; to reject the law itself and the authority of the state to prosecute lawbreakers.
Typically nullification takes place during deliberation, when jurors simply refuse to convict, unconvinced by the prosecution’s case. But it can be difficult to gain a seat on a jury if one’s intent is to nullify; prosecutors and judges are well aware of the growing nullification movement, and will take steps to screen out potential troublemakers. Even though juries have a right to nullify, the state will do everything it can to empanel only those citizens who will remain “unbiased” — so long as they promise to convict the defendant if the facts warrant it.
But what if the entire jury pool refuses to hear a case?
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.
Note carefully how the county prosecutor characterizes the jury pool’s action:
“A mutiny,” said Paul.
What is a mutiny? A rebellion against authority. Paul, like any other faithful agent of the state, arrogates to himself power that rightly belongs to the people he supposedly serves, and is taken aback by any challenge to his authority. Jury duty is an obligation, and if the facts demand it, then one’s duty is to convict, and justice be damned.
The residents of Missoula County, some of them anyway, think otherwise. They recognize the sheer absurdity of prosecuting someone for possessing a tiny amount of a plant that has been cultivated and used by humans for thousands of years. Would they have convicted the defendant of the more serious charge he faced, distribution of a “dangerous” drug, itself a risible claim, particularly as it applies to marijuana? People seem to have trouble accepting the idea that if it’s all right for someone to possess a drug, it must be all right for someone else to sell it to him.
But I will take the small victories, and hope for more like them.