"Attorneys in Montana had to work out a plea agreement after potential jurors revolted in a pot case and made it clear that they would not convict someone for possessing a tiny amount of marijuana, The Missoulian newspaper reports.The case in point ("Cornell") reflects the opinion of a jury which, if it had found the defendant guilty of possessing a small amount of marijuana, would have been obliged to sentence the defendant to a greater penalty than they felt reasonable, given the facts as they were presented.
As the jury pool was being polled in Missoula last week, most of the 27 potential panelists, one after the other, said they would not convict for possession of a 16th of an ounce of pot.
One juror even wondered why the county was wasting time and money prosecuting the case at all, the newspaper reports, quoting Deputy Missoula County Attorney Andrew Paul.
'I thought, 'Geez, I don't know if we can seat a jury,'' District Judge Dusty Deschamps, who called a recess, said after polling the potential jurors."
I have not mentioned Jury Nullification here before, but I agree with David Friedman. (The Beacon, December 23, 2010: "Jurors' Moral Duty".) Sometimes the law is much more harsh than it should reasonably be in the opinion of the jury; this is the opportunity, the right, and perhaps the obligation of jury members to correct the moral inequity of egregious laws.
The United States Government is organized so that the three branches of government ... executive, legislative and judicial ... act as checks and balances on each other.
But this nation is predicated on the rights of the individual, and sometimes people just seem to "fall through the cracks" of laws which are passed, courts which impose excessive sentences for minor offenses, and an executive who is unlikely to rectify a perceived wrong.
Yes, when the system works the result might be that the executive over-rules judges who apply the strict rule of law to situations which may lead to excessively punitive sentences. A good recent example of this might be when New Jersey Governor Chris Christie commuted the sentence of a man who was sentenced to 7 years for having guns ... legally obtained in Colorado ... for having unloaded firearms in the trunk of his car.
The jury in that specific case had asked the judge for clarification of fine points of the state laws, but since the judge declined to respond they felt obliged to find the defendant guilty as charged, which resulted in a 7-year prison sentence for defendant Brian Aitken. The jury, believed that the sentence was excessive but felt that they lacked the power to ignore the implied direction from the judge and find him not guilty .. which was obviously their preferred judgment.
The case originally cited ("Cornell") would have imprisoned a defendant who possessed a small amount of marijuana to a similarly long period of incarceration. Rather than to drag the Executive Branch (governor, in this case) into the discussion, the jury merely refused to find the defendant guilty ... primarily because the sentence would have been excessive under the given circumstances, in their opinion.
The controversy, as defined in the Beacon article, was whether (a) the jury had a responsibility to follow the Judge's implied direction, and allow the Executive Branch (governor) to decide whether to intervene; or (b) follow their own individual moral guidance and decline to render a decision which would have led to an unrealistic (but lawful) punishment.
In this single specific case, they decided that the law was inappropriately harsh under the specific circumstances, and so they found the defendant "Not Guilty" .. even though they thought he might have broken the law.
In the Friedman opinion, he suggests that free men have not only a right, but an obligation to "nullify" application of a law, when it leads to misjustice. On the other hand, federal Judge Alex Kozinksi disagrees. He thinks that:
...juries do not have a right to disregard the law. In fact, juries are sworn to apply the law. If they can’t do that or won’t do that–and you would not want to be before a jury that is lawless. … It’s an abomination. It’s a crime. It should not be allowed to happen. The juries should be told in no uncertain terms that if they can’t apply the law as instructed by the judge, they ought to get off.
This situation is quit similar to the Olofson case, in which the defendant lent an AR-15 rifle to a friend, the rifle chain-fired multiple bursts on a single pull of the trigger, and the BATF successfully prosecuted defendant Olofson for transferring a fully automatic weapon ... even though the BATF technician testified that the full-auto burst was only replicable under certain narrowly defined circumstances.
What looked like a "full auto" offense to the BATF may have looked like a "malfunction" to people who are fully cognizant of the technical aspects. The jury was not conversant with the technical points, so Mr. Olofson was also sentenced to prison.
A better informed jury, the members having been aware of the concept of "Jury Nullification", might have decided to apply a more lenient sentence -- especially considering that the prosecutor and the judge conspired to provide narrow definitions and instructions to the jury.
If the reports are to believed the Defendant (Olofson) had no intent to create a full-auto weapon ... and if he had, it would have been the height of folly to then loan the rifle to
an acquaintance. [His representation in court may not have been as effective as it could have been, either.]
The jury in the Aitkens case might also ruled differently, if they were less intimidated by the judge's instructions .. or in that case, lack of instruction.
But now, in the "Cornell" case, we see a clear precedent that a jury might successfully interfere with the smooth flow of "justice" when they believe that Justice is not served by either an excessively harsh interpretation of the law, or by judicial instructions.
Might we all perhaps discover that our duty as jurors is to decide on the side of Justice, rather than "justice"?
(Video of the full discussion, hosted by the Independent Institute", is available at The Beacon Magazine here. It's presented in 5 parts, and you may be forgiven by skipping the first part. In fact, the entire discussion is pedantic, boring, and seems a forum for the individual speakers to pimp their own books as much as to examine legal controversy. Part 5 has the dialogue ... and lasts for 37 minutes.)