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Function of Juries & Jury Nullification | 25 Sep 2014

-Montana Supreme Court Candidates Debate Jury Nullification


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Jury nullification made an appearance in a recent debate between candidates for the Montana Supreme Court. The Great Falls Tribune reported on the event.

Supreme Court candidates square off in Missoula

The four candidates vying for seats on the Montana Supreme Court met during a lively forum at the University of Montana School of Law.

Incumbent high court Justices Mike Wheat and Jim Rice were joined by challengers Lawrence VanDyke and W. David Herbert at the event co-sponsored by the conservative Federal Society and the progressive American Constitution Society.

The event prompted lively debate over issues ranging from outside spending in nonpartisan Supreme Court races, rights of criminals, the controversial Barry Beach case and jury nullification.

Herbert repeatedly advocated for jury nullification, which is the principle that juries have the right to rule against the law if the law is “unjust or unfair.”

“Not all laws are fair and just,” Herbert said.

Herbert said juries have a “right and a duty not to enforce an unjust law.”

Rice disagreed, stating that Herbert’s advocacy of nullification seeks to overturn the fundamentals of our system of government.

“That is subversion of democracy,” Rice said.

Missoula is a particularly interesting venue for someone to claim that jury nullification is a subversion of democracy. Recall that back in 2010, Missoula, Montana was home of what was reported nationwide as a “jury mutiny” in which jurors effectively nullified a pot prosecution when so many of them said during voir dire that they would not convict defendant Touray Cornell for possession of a tiny amount of marijuana that it became impossible for a jury even to be seated. Deputy Missoula County Attorney Andrew Paul prosecuted this case in spite of Missoula County Initiative #2 having been passed in 2006 by 55% of the voters of this county, to “make investigations, citations, arrests, property seizures, and prosecutions for adult marijuana offenses Missoula County‚Äôs lowest law enforcement priority”. In this case, it was not the jury who was subverting democracy, but rather the county attorney’s office in pursuing the prosecution. Jurors, in refusing to convict, were acting to uphold the citizens’ initiative, passed by direct vote of the people.

Moreover, after 4 1/2 years of supposedly prioritizing marijuana enforcement at the bottom of its law enforcement priorities, Missoula’s county attorney announced in 2011 that he would once again bump these victimless offenses up in priority level. This change in policy was made possible by legislation initiated at the Missoula county attorney’s request specifically to allow government to overrule Missoula County Initiative 2, in which citizens democratically informed their supposed representatives that they wished marijuana priority to be law enforcement’s lowest priority:

Minor pot crimes to be enforced again, Missoula County attorney says

Marijuana once again is a priority for law enforcement in Missoula County.

So says Missoula County Attorney Fred Van Valkenburg, who issued a reminder Friday about a new law that takes effect Saturday.

“We’ll be prosecuting the misdemeanor marijuana cases that we have not been doing for the last 4 1/2 years,” he said.

Under the new law, sponsored by Republican Rep. Tom Berry of Roundup at Van Valkenburg’s request, “the power of initiative does not extend to the prioritization of the enforcement of any state law by a unit of local government.”

The law applies only to Missoula County, where in 2006, 55 percent of those voting approved Initiative 2 recommending that crimes related to marijuana be the lowest priority for law enforcement.

“Since no other community in Montana can adopt such an initiative and, I’m the person who sought the adoption of this law, it would be hypocritical on my part to continue to follow the lowest priority of enforcement policy in Missoula County,” Van Valkenburg’s announcement said.

The committee charged with oversight of the implementation of Initiative 2 disbanded thereafter in 2012 after issuing its final report for 2010 and 2011. In this report, the committee discussed the abject failure of the Initiative to be respected by government officials, and government’s successful efforts to subvert the democratically passed initiative:

During our several years of volunteer service, committee members regularly expressed disappointment that the initiative seemed to have no effect on reducing arrests of adults for marijuana in Missoula County.

With the exception of the County Attorney’s office, which only rarely handles misdemeanor marijuana cases, law enforcement officials declined to heed the voters’ recommendation as expressed in the initiative.

After failing to get out of committee in 2009, a new law (HB 391) was passed in 2011 which prevents Montana communities from enacting initiatives similar to Missoula County Initiative #2. The Missoula County Attorney testified in support of the bill in both sessions.

Jury nullification is a tool. It can be used in many ways, including to uphold the popular will of the people, and it should be used to do so when the popular will of the people is justice. This, of course, is not always the case, and when democracy leads government to violate human rights and perpetrate injustice, it is a proper function for independent jurors to check government abuses, no matter how popular, with their Not Guilty votes. But there is nothing inherently subversive of democracy about jury nullification. If we are truly concerned about the will of the people being subverted, we ought to focus our attention on the vastly more powerful government attorneys who prosecute criminal cases against the will of the people, and in essence, extrajudicially adjudicate them more than 90% of the time via plea bargains.