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Saturday 11th August 2012

The jury system is one of the central features of western democracies. It is supposed to offer an independent judgement based on the facts of a case as presented in court. ‘As presented in court.’ A jury is charged with only considering what is put in front of it. It should not bring any prejudice into the court. It appears, however, that when it comes to psychoactive substances, there is an increasing number of cases where jurors, or potential jurors, see no reason to set aside their views of how the law should relate to these substances.

Now, it seems that at least one judge is also questioning the wisdom of bringing prosecutions.

In December 2010, a court in Missoula County, Montana, was due to hear a felony charge of criminal distribution of dangerous drugs brought against a man found to be in possession of a tiny amount of Cannabis sativa, marijuana.¹ During jury selection, it became clear that a number of the potential jurors would not convict and one went so far as to question why time and money was being wasted on the prosecution. The judge realised he might not be able to find a jury to hear the case and pressed for a plea bargain.

Cannabis sativa, marijuana

In July 2012, Philip Cobbs of Ablemarle County, Virginia, was found not guilty of marijuana possession after a jury accepted his claim that he was not aware that two plants were growing on his property.² Again, during jury selection, a number of potential jurors said they disagreed with the law. One said “Possession? So what?” and another said he had “smoked a lot of weed”. The former was, nonetheless, put on the jury after she said she would ignore her beliefs when reaching a verdict.

In the UK, such results have happened in the past. In 1998, two cases where defendants argued that their cannabis use was medicinal resulted in not guilty verdicts. In the case of Colin Davies, the jury were told that Davies did not deny he was growing cannabis and they had to find him guilty.³

In 2000, a Carlisle woman was acquitted by a jury in spite of acknowledging that she regularly used cannabis to treat the symptoms of multiple sclerosis.⁴ It has been difficult to find more recent cases, in the UK, but whether that is because the Crown Prosecution Service (CPS) has learnt lessons and no longer brings similar cases is impossible to know.

Now, a different psychoactive substance has been subject of a criminal trial and, in this case, it seems it is the judge who has been willing to go against the intention of the law.

The U.S. District Court in Alexandria, Virginia, sentenced five people who, at an earlier hearing, had been convicted of involvement in smuggling into the USA what was said to be  millions of dollars’ worth of Catha edulis, khat, over several years⁵. Those sentenced, all naturalised US citizens originally from Somalia and Yemen, were convicted along with eight others earlier this year.

Catha edulis, khat

The prosecutors asked for sentences of, at least, two years but the judge sentenced three of them to six months or less and the other two to one year.

‘U.S. District Judge T.S. Ellis III said he took into account the fact that use of khat was not as "pernicious" as some other illegal drugs, and that using khat is a common, accepted practice in the home countries of the defendants.’

There was one serious point raised by this trial and one that demonstrates the extent of the failure of the prosecution.

The serious point is that the case, reckoned to have cost millions of dollars, was touted as essential because of concerns that money from the trade was funding terrorism. In the event, no evidence of any terrorism angle was found and, during sentencing, Judge Ellis made a point of stressing that those convicted had no connection to terrorists.

And the extent of the failure of the authorities in bringing this case is clearly shown by what happened to some of those originally charged⁶. These are the people who accepted a plea bargain and received sentences of between two and three years. You would expect someone agreeing to plead guilty to receive a lower sentence than those forcing a full trial.

It is now expected that these people will appeal their sentences and it is thought that the five sentenced this week will also appeal.

I’m going to repeat myself because I know that there will be people who refuse to accept this point. The prosecutors spent millions of dollars investigating and bringing the case to court and found no connection between khat and terrorism. We don’t know what the ACMD report will say later in the year but we can be sure that the alleged connection with terrorism will be touted around regardless of the ACMD’s recommendations. 

References

1. Missoula District Court: Jury pool in marijuana case stages ‘mutiny’ The Missoulian 19th December 2010.
2. Albemarle farmer found not guilty of pot charges after plants spotted in warrant-less search Richmond Times-Despatch 19th July 2012
3. Jury Clears Man Who Used Cannabis As Pain Killer Hemp.Net 6th June 1998
4. Jury backs MS woman on cannabis 29th September 2000 The Guardian
5. 5 sentenced in khat drug smuggling case Fox News 10th August 2012
6. 13 defendants in khat smuggling case go to trial Fox News 17th April 2012

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