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A funny thing happened on the way to a trial in Missoula County District Court this month.

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 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 Missoula County deputy attorney Andrew Paul.

District Judge Dusty Deschamps took a quick poll as to who might agree. Of the 27 potential jurors before him, perhaps 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.

And he didn’t.

During the recess, Paul and defense attorney Martin Elison worked out a plea agreement. That was on Dec. 16.

On Dec. 17, Cornell entered an Alford plea, in which he didn’t admit guilt. He briefly held his infant daughter in his manacled hands, then walked out of the courtroom, smiling.

“Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges … is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances,” the plea memorandum filed by his attorney said.

“A mutiny,” Paul said.

“Bizarre,” the defense attorney said.

In his nearly 30 years as a prosecutor and judge, Deschamps said, he has never seen anything like it.

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“I think that’s outstanding,” John Masterson, who heads Montana’s branch of the National Organization for the Reform of Marijuana Laws, said when told of the incident. “The American populace over the last 10 years or so has begun to believe in a majority that assigning criminal penalties for the personal possession of marijuana is an unjust and a stupid use of government resources.”

Masterson is hardly an unbiased source.

On the other hand, prosecutor, defense attorney and judge all took note that some of the potential jurors expressed that same opinion.

“I think it’s going to become increasingly difficult to seat a jury in marijuana cases, at least the ones involving a small amount,” Deschamps said.

The attorneys and the judge all noted Missoula County’s approval in 2006 of Initiative 2, which required law enforcement to treat marijuana crimes as their lowest priority -- and also of the 2004 approval of a statewide medical marijuana ballot initiative.

And all three noticed the age of the members of the jury pool who objected: a couple who appeared to be in their 20s, a couple in their 40s, and one of the most vocal was in her 60s.

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“It’s kind of a reflection of society as a whole on the issue,” Deschamps said.

Which begs a question, he said.

Given the fact that marijuana use became widespread in the 1960s, most of those early users are now in late middle age and fast approaching elderly.

Is it fair, Deschamps wondered, in such cases to insist upon impaneling a jury of “hardliners” who object to all drug use, including marijuana?

“I think that poses a real challenge in proceeding,” he said. “Are we really seating a jury of their peers if we just leave people on who are militant on the subject?”

Although the potential jurors in the Cornell case quickly focused on the small amount of marijuana involved, the original allegations were more serious: that Cornell was dealing, hence, a felony charge of criminal distribution of dangerous drugs.

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Because the case never went to trial, members of the jury pool didn’t know that Cornell’s neighbors had complained to police that he was dealing from his four-plex, according to an affidavit in the case. After one neighbor reported witnessing an alleged transaction between Cornell and two people in a vehicle, marijuana was found in the vehicle in question.

The driver and passenger said they had bought it from Cornell, the affidavit said. A subsequent search of his home turned up some burned marijuana cigarettes, a pipe and some residue, as well as a shoulder holster for a handgun and 9 mm ammunition. As a convicted felon, Cornell was prohibited from having firearms, the affidavit noted.

Cornell admitted he distributed small amounts of marijuana and “referred to himself as a person who connected other dealers with customers,” it said. “He claimed his payment for arranging deals was usually a small amount of marijuana for himself.”

Potential jurors also couldn’t know about Cornell’s criminal history, which included eight felonies, most of them in and around Chicago several years ago. According to papers filed in connection with the plea agreement, Cornell said he moved to Missoula to “escape the criminal lifestyle he was leading,” but he has had a number of brushes with the law in Montana.

Those include misdemeanor convictions for driving while under the influence, driving with a suspended license and a felony conviction in August of conspiracy to commit theft, which involved an alleged plot last year to stage a theft at a business where a friend worked, the papers said. He was out on bail in that case when the drug charges were filed.

In sentencing him, Deschamps referred to him as “an eight-time loser” and said, “I’m not convinced in any way that you don’t present an ongoing threat to the community.”

Deschamps also pronounced himself “appalled” at Cornell’s personal life, saying: “You’ve got no education, you’ve got no skills. Your life’s work seems to be going out and impregnating women and not supporting your children.”

The mother of one of those children, a 3-month-old named Joy who slept through the proceedings, was in the courtroom for the sentencing. Cornell sought and received permission to hug his daughter before heading back to jail.

Deschamps sentenced Cornell to 20 years, with 19 suspended, under Department of Corrections supervision, to run concurrently with his sentence in the theft case. He will get credit for the 200 days he already served. The judge also ordered Cornell to get a GED degree upon his release.

“Instead of being a lazy bum, you need to get an education so you can get a decent, law-abiding job and start supporting your family,” he said.

Normally, Paul said after the sentencing, a case involving such a small amount of marijuana wouldn’t have gone this far through the court system except for the felony charge involved.

But the small detail in this case may end up being a big game-changer in future cases.

The reaction of potential jurors in this case, Paul said, “is going to be something we’re going to have to consider.”

Reporter Gwen Florio can be reached at 406-523-5268 or at gwen.florio@missoulian.com.

 

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