Judge couldn't find jurors to convict for marijuana possession
WND Staff
November 1, 2019
(Image courtesy Pixabay)
The defendant was accused of possessing only one ounce of marijuana. But he had two previous, non-violent convictions and was facing the possibility of years in jail if convicted.
Nevertheless, prosecutors in Louisiana had to drop their felony case, because they couldn't come up with enough jurors who were willing to convict.
The case was profiled by the Tenth Amendment Center,which documented cases in which juries made decisions based on their view of justice and not necessarily the law.
The center's Michael Boldin explained: "Louisiana prosecutors were forced to drop felony charges against a man after nearly two dozen potential jurors balked at criminal charges for illegal possession and none were left in the pool for the day. Whether this is a revolt or a kind of preemptive jury nullification, the end result is the same."
Police arrested Jabar Kensey on Bourbon Street in New Orleans with an ounce of marijuana. A server at New Orleans' landmark Antoine's restaurant, he faced a potential sentence of 15 to 20 years in prison under Louisiana's 'three-strikes' law. He had two prior non-violent convictions.
But the judge was not able to seat a jury, the Tenth Amendment Center said, because too many potential jurors refused to consider a prison sentence for simple marijuana possession.
NOLA.com reportedprosecutors needed only six people.
"Potential jurors who said they don't think marijuana should be illegal helped scotch the planned trial of Antoine's server Jabar Kensey before he could face the music. He was charged with possession of marijuana with intent to distribute after cops caught him with an ounce of pot on Bourbon Street," the report said.
"Call it a sign of the times. Ad hoc Criminal District Court Judge Dennis Waldron halted the selection process after 20 of 25 potential jurors were dropped and no more jurors remained in the day's pool."
Some jurors were released for a variety of reasons, but Waldron said a "significant" number were dismissed on prosecutors' challenges.
The judge specifically highlighted the jurors who voiced their opinions on "whether or not (marijuana) should be the subject of criminal laws outlawing it."
Consequently, prosecutors changed their charge to a misdemeanor and Kensey agreed to spend 12 weekend days in jail.
Kensey's lawyer "said it showed that District Attorney Leon Cannizzaro’s office bowed to the people’s will on marijuana crimes."
Prosecutors differed. They explained the case ended in a plea because "it was decided this plea agreement and length of jail time brought a resolution to the case satisfactory to the state."
An organization called the Fully Informed Jury Association educates the public on the concept of jury nullification. Historically, members of a criminal trial jury have chosen to acquit someone they believe is guilty because they believe the law itself is unjust.
Such decisions were common during the era of slavery in the United States, when juries acquitted activists who helped runaway slaves.
"Juries clearly have the power to nullify; whether they also have the right to nullify is another question," said a report on jury nullification by researchers at the University of Missouri at Kansas City. "Once a jury returns a verdict of 'Not Guilty,' that verdict cannot be questioned by any court and the 'double jeopardy' clause of the Constitution prohibits a retrial on the same charge."
Early in the nation's history, "judges often informed jurors of their nullification right."
"For example, our first Chief Justice, John Jay, told jurors, 'You have a right to take upon yourselves to judge [both the facts and law].' In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed."
However, over time the judiciary reversed its position, and in 1895 a defendant's conviction was affirmed even though the trial judge "refused the defense attorney's request to let the jury know of their nullification power."
Now, prosecutors and judges routinely oppose even discussion of the concept, and judges tell jurors "it is their duty to apply the law as it is given to them, whether they agree with the law or not," the report said.
Ilya Somin, professor of law at George Mason University, wrotethat such discretion "has much in common with prosecutorial discretion," in which prosecutors use their own judgment to pursue some cases and not others.
He noted legal scholar Glenn Reynolds pointed out that while "the power of juries to let guilty people go free in the name of justice is treated as suspect and called 'jury nullification,' the power of prosecutors to do the exact same thing is called 'prosecutorial discretion,' and is treated not as a bug, but as a feature in our justice system."
"There's no obvious reason why one is better than the other," he said.