Reporting from Seattle — It seemed a straightforward case: A man with a string of convictions and a reputation as a drug dealer was going on trial in Montana for distributing a small amount of marijuana found in his home — if only the court could find jurors willing to send someone to jail for selling a few marijuana buds.
The problem began during jury selection last week in Missoula, when a potential juror said she would have a "real problem" convicting someone for selling such a small amount. But she would follow the law if she had to, she said.
A woman behind her was adamant. "I can't do it," she said, prompting Judge Robert L. Deschamps III to excuse her. Another juror raised a hand, the judge recalled, "and said, 'I was convicted of marijuana possession a few years ago, and it ruined my life.' " Excused.
"Then one of the people in the jury box said, 'Tell me, how much marijuana are we talking about? … If it was a pound or a truckload or something like that, OK, but I'm not going to convict someone of a sale with two or three buds,' " the judge said. "And at that point, four or five additional jurors spontaneously raised their hands and said, 'Me too.' "
By that time, Deschamps knew he had a jury problem.
"I was thinking, maybe I'll have to call a mistrial," he said. "We've got a lot of citizens obviously that are not willing to hold people accountable for sales in small amounts, or at least have some deep misgivings about it. And I think if I excuse a quarter or a third of a jury panel just to get people who are willing to convict, is that really a fair representation of the community? I mean, people are supposed to be tried by a jury of their peers."
The Missoula court's dilemma was unusual, yet it reflects a phenomenon that prosecutors say they are increasingly mindful of as marijuana use wins growing legal and public tolerance: Some jurors may be reluctant to convict for an offense many people no longer regard as serious.
"It's not on a level where it's become a problem. But we'll hear, 'I think marijuana should be legal, I'm not going to follow the law,' " said Mark Lindquist, prosecuting attorney in Pierce County, Wash. "We tell them, 'We're not here to debate the laws. We're here to decide whether or not somebody broke the law.' "
Twelve states plus the District of Columbia have decriminalized possession of small quantities of marijuana. Led by California in 1996, 17 states have laws that allow medical use of marijuana.
But federal authorities have continued to pursue prosecutions in those states, prompting increasing calls among drug-law reform advocates for juries to follow their consciences and refuse to convict — a legal concept known as jury nullification, widely used during Prohibition and in the Jim Crow-era South.
"This is one of the first times in a number of years there's a general discussion around this powerful but rarely used jury tool," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. "But going back 20 years plus, there's been some tumult in the courts where the issue is cannabis and the person being prosecuted wants to turn to the jury and say, 'Yes, I am guilty, and here's why.' "
The phenomenon is difficult to measure, St. Pierre and several others said, because the term "jury nullification" is rarely invoked; defendants with substantial evidence against them are simply acquitted, or juries deadlock.
"Sometimes, we're not told what the reason was, whether it was nullification or they just had a factual question about the case; we just don't know," said Ian Goodhew, deputy chief of staff for the King County prosecutor's office in Seattle.
"Some [prospective] jurors will honestly tell us that they don't think they can follow the law because they think the law's wrong and should be changed. At that point, we ask the judge to consider dismissing them," he said. "As attitudes change more and more, that's a problem we could face in trying cases to a jury. You could have that issue trying before a judge too if a judge has a strong opinion on the validity and necessity of those kinds of laws."
St. Pierre said he was convinced that was what happened in the case of Northern California pot activist Ed Rosenthal, whose conviction on federal charges in 2003 prompted prosecutors to seek a 6½-year sentence. Rosenthal instead was sentenced by U.S. District Judge Charles Breyer to a single day — in part reflecting the dismay of eight jurors who said after the trial that they would have voted to acquit Rosenthal had they known his pot was intended for medicinal use.
"The judge nullified the law," St. Pierre said. "He totally ignored the sentencing guidelines."