By now you’ve heard the story reported by The Missoulian about a man charged with 1/16th an ounce of marijuana whom the prosecutors could not try because they could not find any unbiased jurors who would convict for such a small amount:

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.

The one problem I have with the story is in how the media are framing the jurors’ actions. In the Missoulian piece, the jurors are said to have “staged a revolt”.

The Huffington Post reports “Montana Jury Stages ‘Mutiny’ in Marijuana Case”.

USA Today writes “Court stunned by ‘munity’ from jury pool over marijuana case”.

The “mutiny” theme has been echoed by many other outlets picking up the story. For the sake of discussion, let’s remember exactly what “mutiny” means:

Mutiny is a conspiracy among members of a group of similarly-situated individuals (typically members of the military; or the crew of any ship, even if they are civilians) to openly oppose, change or overthrow an existing authority.

Did these jurors conspire? Nope, they had never met each other before being called on their civic duty to a jury pool.

Did these jurors attempt to overthrow an existing authority? Nope, they just refused to be unbiased regarding a small-time marijuana charge.

The immediate framing of this jury’s action as “revolt” or “mutiny” just proves how far we have fallen from understanding the true nature of the jury system. The media that believes they opposed authority don’t understand that the true authority in the court system is not the judge, the prosecutor, or even the laws, but the people. How can the people be in revolt against themselves?

The jury system has existed for over 700 years since the signing of the Magna Carta. It remains the ultimate check against the tyranny of government as it provides the people a method for balancing the laws written by the Legislative, signed by the Executive, and enforced by the Judicial branches of government. According to Professor Duane writing for the Fully Informed Jury Association:

At the time the Constitution was written, the definition of the term “jury” referred to a group of citizens empowered to judge both the law and the evidence in the case before it. Then, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford. The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said:

“It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision. …you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”.

So you see, in an American courtroom there are in a sense twelve judges in attendance, not just one. And they are there with the power to review the “law” as well as the “facts”! Actually, the “judge” is there to conduct the proceedings in an orderly fashion and maintain the safety of all parties involved.

As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an “unreviewable and irreversible power… to acquit in disregard of the instructions on the law given by the trial judge….”

Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland:

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.”

This group of jurors in Montana aren’t “mutineers”. They’re patriots!

“First thing… kill all Lawyers.”
William Shakespeare (paraphrased) from Henry VI

There! Did I get your attention?

No, I am not advocating violence and murder. That would be counter productive, as well as is making threats of violence, but, it seems that the courts and law enforcement in our country have been getting out of hand. In some cases the police have made arrests using violent techniques, in some cases ignoring citizen initiative laws, killing beloved pets and sometimes people, destroying homes, property and lives, all for a little flower that grows everywhere… which incidentally is good for medicine, is not physically addicting, and you couldn’t overdose on it if you smoked your weight of it in 5 minutes, grows naturally almost everywhere on earth, hasn’t killed anybody since… FOREVER and, woe upon woe, has the side effect of making you feel good.

In part 1 of this series I offered a few suggestions on getting started as an activist. In part 2 I dealt with finding your own activist social support group. In this third part I will offer some suggestions on how to be an activist in our court system.

7. The Activist Trial Juror

I get summoned for jury duty about every 2-3 years. I couldn’t even avoiding it by moving from Mississippi to Minnesota. I still get those summons. As a juror I could not choose the type of trial I would be sitting, but I always wanted to be a juror in a marijuana possession or distribution case, and I’ll tell you why.

According to the Fully Informed Jury Association, the purpose of a jury is not to punish an individual for infractions of the law, but to protect an accused fellow citizen from government tyrannical abuse of power. Your vote, as a citizen juror, in a trial is a measure of public opinion on the law itself and many lawmakers are likely to take the matter of repealing marijuana prohibition laws more seriously if jurors would hand over more acquittals.

As a juror you have the absolute right to vote “Not Guilty” if you believe an existing law is unconstitutional, out of date, or just plain bad. This is called “jury nullification”. Something like this recently happened in a Colorado medical marijuana case in which the jury handed over an acquittal.

As a juror, if you believe that a law is being applied just to make the accused “an example of what could happen”, it is within your right as a citizen juror to vote not guilty.

So, as for me. I believe the existing laws prohibiting the use of marijuana for responsible adults are… just plain bad. If I ever have the opportunity to be the juror on a marijuana charge, you can bet your last dollar that I will vote… Not Guilty!

You, as a juror, cannot be punished for a not guilty vote. The judge’s instructions to jurors are simply advice based upon this own interpretation of the law and you can’t be punished for not following it. Don’t let pressure from the judge, prosecutor, other jurors or other minor officers of the court sway you from voting your conscience.

8. The Activist Accused

It is unfortunate that any of us should ever go through this. Who in the hell would want to be one of these! Not I, you, nor anyone else that I know of, but sometimes stuff happens.

The first thing I would have to ask is this… did you inadvertently waive your rights as Russ, in so many “Stupid Stoner Stories” has pointed out? Well, if you did, shame on you, but perhaps all is not lost. I will tell you this… keep your mouth shut and hire, if you can afford one, and you should, a good trial lawyer.

Be proactive in your defense. Ask to sign the relevant paperwork, if applicable in your area, for a trial by jury immediately after being charged.

Do not accept an offer for a plea bargain no matter how forceful the prosecuting attorney may be. When they say that it will be easier if you take the plea bargain, what they really mean is that it will be easier for them to convict you of a crime.

There is something called the “Informed Jury Defense”, in which activists will make a deliberate attempt to educate jurors about their right to vote their conscience on the law itself as I mentioned above.

This first step to get this Informed Jury Defense is done by educating the public on the extent to which jurors have power . The second step is to educate the jurors who will hear your case.

The first step can be done with the power of the media such as talk shows, letters to the editor, leaflets or advertising, to name a few. Do as much of this as you can afford.

The second step requires enlisting the help of friends and supporters… This is where your local NORML chapter or other activists comes in. On the day of jury selection they, your friends, stand outside the courtroom and hand out a leaflet (which you or your friends print up) explaining the powers of the jury and all the things mentioned above, so that they, the jury, can be fully informed. Give this leaflet to all the potential jurors as they enter the room. This may mean some early mornings for some of your friends. Perhaps your trial will come to an end with a hung jury, and the court decides not to prosecute further. It only takes one juror to do that. Then there is “the acquittal“.

9. The Activist Grand Jurist

First of all, find out how you can become a member of a grand jury. Some locations have a sign-up sheet to volunteer for grand jury duty, and if so, sign-up if you can and are willing to do so.

The grand jury is an independent body, who not only investigates a crime and starts the prosecution (persecution in some cases) process, but also stands to protect it’s fellow citizens from unfounded criminal charges. They stand between the accused and the prosecution as protector. The grand jury protects the citizen from unjust, unreasonable or unfair government laws.

As a grand jurist, you have the right to question anyone involved in the case. As you question the arresting officer, start with the “probable cause”. In my humble opinion, “he had glassy eyes”, “he was acting strangely” or “their electric bill was too high” to name a few, are not probable cause for arrest or a warrant to search, no matter what a judge signing a warrant may say. If this is the reason for the arrest, then, as a marijuana law reform activist, I would be compelled to go with… no indictment.

Once again, in my opinion, laws prohibiting the use of marijuana fall into the category of “unjust, unreasonable or unfair”.

In closing, I would just like to say this… should you decide to follow through and become an activist… whatever you do for the cause of marijuana law reform, follow the advice of the Roman Goddess Nike… “Just Do It”.

(TIME Magazine) We write a television show. Measured against more thoughtful and meaningful occupations, this is not the best seat from which to argue public policy or social justice. Still, those viewers who followed The Wire — our HBO drama that tried to portray all sides of inner-city collapse, including the drug war, with as much detail and as little judgment as we could muster — tell us they’ve invested in the fates of our characters. They worry or grieve for Bubbles, Bodie or Wallace, certain that these characters are fictional yet knowing they are rooted in the reality of the other America, the one rarely acknowledged by anything so overt as a TV drama.

[T]his [drug] war grinds on, flooding our prisons, devouring resources, turning city neighborhoods into free-fire zones. To what end? State and federal prisons are packed with victims of the drug conflict. A new report by the Pew Center shows that 1 of every 100 adults in the U.S. — and 1 in 15 black men over 18 — is currently incarcerated. That’s the world’s highest rate of imprisonment.

“A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,” wrote Thomas Paine when he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. It does not yet address questions of how the resources spent warring with our poor over drug use might be better spent on treatment or education or job training, or anything else that might begin to restore those places in America where the only economic engine remaining is the illegal drug economy. It doesn’t resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun’s manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

The writers of The Wire are referring to jury nullification, an American right of juries to decide the fairness of a law and not just the application of that law. A jury can choose not to enforce a law even if they believe a defendant is guilty. This check on legislative power dates back to colonial times even before our Independence Day; however, modern courts have refused to allow defense attorneys and judges to even mention to jurors that they have this power. For more information on jury nullification, visit the Fully Informed Jury Association at www.fija.org.