Not Guilty: How Juries Can Destroy the War on Drugs

A seldom-discussed but significant weak link in the drug war infrastructure is the ability of any defendant to have their fate decided by a jury. Although the threat of draconian sentences leads the vast majority to plead out and accept an agreed-upon punishment, those who choose to fight it out before a jury of their peers have an opportunity to escape the drug war's icy death-grip. It's a high-risk/high-reward strategy that could become more effective as public support for the war on drugs continues to decline.

A not guilty verdict in San Diego this week highlights the difficulty of securing convictions against medical marijuana providers:

SAN DIEGO COURTS — A Navy veteran who was the manager of a medical marijuana dispensary was acquitted of five charges of possessing and selling the drug illegally yesterday, a verdict that emboldened medical marijuana activists and was a setback for San Diego prosecutors who have aggressively pursued medical marijuana cases. [San Diego Union Tribune]

Meanwhile, in Baltimore, the acquittal of an accused street dealer shows how aggressive drug war tactics have eroded public trust in police:

Only two witnesses testified at the two-day trial – Correa [the arresting officer] and a crime lab technician who tested the drugs and concluded they were indeed heroin and cocaine. Defense attorney Marie Sennett told jurors in her opening statement that the case rested solely "on the word of the officer."

And, Sennett added, "Unfortunately, that's not enough."

The jury agreed and acquitted Walker-Bey on all charges of possessing drugs and possessing drugs with intent to distribute. [Baltimore Sun]

In a climate of increased public skepticism surrounding the efficacy of the war on drugs and the fairness of the criminal justice system, outcomes like these will hopefully become more commonplace. When the jury refuses to play along, even the virtually unchecked prosecutorial powers that have done so much to fill our prisons with drug offenders can be overcome. There's no reliable formula for spotting jurors who might be reluctant to convict in a drug case, and it only takes one to complicate the process dramatically. Provided they don't, for example, write a blog about legalizing drugs, getting on a jury can be as simple as dressing appropriately and affirming their willingness to uphold the law.

The power of juries to reshape the drug war landscape can already be seen in California, where prosecutors learned years ago that medical marijuana cases aren't nearly as open and shut as federal law would suggest. The Ed Rosenthal saga, in which the jury revolted after the verdict and got the conviction thrown out, gave federal prosecutors an early taste of what lay ahead if they tried to win the war on medical marijuana in the courtroom.

Such events go a long way towards explaining why DEA agents so often raided dispensaries and confiscated profits, while declining to press charges against anyone. Every medical marijuana trial is a guaranteed public relations nightmare and there's no upside if you can't even count on a conviction. I've long suspected that the threat of uncooperative juries may in fact have been the most significant factor in enabling California's medical marijuana industry to survive and expand during the Bush Administration. With little confidence in their ability to make an example of anybody, the Feds just broke stuff instead, while leaving the industry almost completely intact.

With marijuana legalization now rapidly approaching majority support among the American public, it just seems inevitable that prosecutors will have a harder time getting groups of 12 random people to send someone to jail for marijuana. And if that happens, even a little, the implications are far-reaching. The criminal justice system is pathetically dependent on plea-bargaining in drug cases, and would grind to a halt rather quickly if more defendants insisted on taking their case to trial.

I'm beginning to fantasize here, obviously, but I do think it's important to start looking at some of the ways in which growing public support for our cause can manifest itself in contexts besides just the ballot box. The drug war is vulnerable on all fronts and the harder we work to expose and exploit its countless weakness, the more efficient and decisive our victory will be.

For more on the rights of jurors, visit the Fully Informed Jury Association.
Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Trials, what trials?

The problem with that theory is prosecutors' tendency to stack the deck to make the Sixth Amendment guarantee of a fair and speedy trial virtually meaningless. By piling on charges, going after innocent spouses, threatening draconian mandatory minimums and school zone enhancements and filing to seize family homes, they make exercising your constitutional right to a trial by a jury of your peers such a risky proposition that only a fool or a martyr would consider taking that chance.

The people that enforce our drug laws are on a moral crusade, and they don't care how many of our country's fundamental principles get mangled in the process. If juries fail to do their dirty work, they'll just bring in the drones and commit extra-judicial assassinations. That seems to be the latest strategy in Afghanistan, and no one has raised a significant objection. After all, it's only drug kingpins, terrorists, and a few innocent bystanders, right?

Jury nullification blog

My blog lays out the basics for a jury nullification defense against manufacturing with intent to distribute. Stipulate to gardening with intent to share nature's bounty with addicts who would otherwise be left to the black market. Present it as a community service project. Say that you get your drugs direct from God, the big fish in the cartel.

California dreamin'

vs. Arizona reality: Sitting in county jail with A $50,000 bond and a cellmate who has been waiting for 2 years for a trial. An attorney, one of the few in town who will actually defend a suspected drug law violator, for the small price of $30,000 and a few years of your life. And even he won't speak up in court when cops and prosecutors lie. And lie. And lie. Then there's the court-appointed "defense attorneys" -- some people call them public pretenders, but most of them don't even pretend; their main function is to get a plea signed, by any means necessary.

The right to a trial looks good on paper; it's not so attractive from the inside of a jail cell.

I fully agree with your

I fully agree with your thoughts on the subject. I lived in Arizona during the 70's where the laws were much laxer than they are today. There needs to be a lot of serious lobbying and public debating about this dreadful situation. Florida is just as bad. Simple possession of a small amount of weed gets a mandatory sentence of 1 year in jail and a mandatory 5 grand in fines. We're no longer a developed country but a retarded country in many places such as ours. I have tried reaching out to Senator McCain and a few others there in Arizona but I feel about as depressed as you have expressed. God help us all.

Sales FOR PROFIT is legal in San Diego!

With regard to the issue of Mr. Jackson making money... Mr. Jackson began his collective BEFORE the AG released "non-profit" guidelines...

Non-profit was not "the issue" then, and according to the jury, IT WAS NOT THE ISSUE IN THIS CASE!

I was in the court room for this trial, the jury verdict said "YOU CAN MAKE MONEY" the law is too vague to say you can not.

The same BS the prohibition clan has been feeding you about sales not being legal applies to the "non-profit" issue. Check the written law, it does not say you can not profit... The law is a California initiative and can not be changed except by another initiative or appellate court decision.

The law requires "proof beyond a reasonable doubt" to find someone guilty of a crime... "Vague Law" and "Reasonable Doubt" mixed together means an acquittal from every jury that follows the law. (as long as your attorney is not an idiot, and many are...)


Despite the historic verdict on December 01, 2009, the civil rights violations of a US Navy war veteran and the loud message from the jury in the People v. Jackson, the media still supports Bonnie Dumanis, as of 12/03/09. . .

See more here...
Verdict is in, “Bonnie Dumanis violates Jovan Jackson’s civil rights”, court says;

Videos of the Jovan Jackson verdict provided by San Diego ASA;

Dumanis interviewed after Jackson verdict, “For Profit” MMJ sales now legal, read more here;

San Diego Courts find Bonnie Dumanis “unstable”;



I was framed for possession of heroin (2 balloons) in 1976. I was at the time a "Friday night" user. I worked full time, did not engage in criminal activities, and after 5 years of heroin and opium use, had never been addicted. It wasn't like the police were bending the law to get a dangerous criminal off the streets.
My attorney strongly advised me to plea "no contest". I wanted a lie detector test, my only possible recourse, but this was not an option. My attorney advised that the outcome of my trial was already decided; by judge or jury trial, guilty or innocent, the verdict was "guilty". My word against the word of three veteran police officers.
I was advised that if the case went to trial that I would be punished for spending taxpayer money (I was a taxpayer too).
Today I am a convicted felon. I lost a good job that I had a the time of arrest. And one of the arresting officers is now an assistant police chief of a major U.S. city.

Been There Done That

I spent a month short of five years in prison for marijuana possession. I had solid 4th Amendment issues and spent a lot of money on bloodsuckers thinking they cared about the outcome. I came to the conclusion that they care mostly about cashing the retainer check. We didn't even get to the suppression motion without them pressuring me to accept a plea. I finally agreed to plead guilty so that they'd drop the case against my then girlfriend, who wasn't involved--only present when I was arrested.

The thing that sticks with me still is how empty the courtroom was--how utterly alone I felt the second I walked in. If all these people are so against this prohibition, I remember thinking, then where is everybody?

If every person serious about ending prohibition would find a marijuana trial, grab a few friends and make a point to sit in the gallery and bare witness to what's going down. I think that would make a huge difference.

drug charges and bench trials

the problem with this theory, that i have run into practicing as a third year law student in DC, is that a lot drug charges are misdemeanors, with punishments less than 6 months, so the defendant is not entitled to a jury trial. this takes the very charges that are ripe for nullification, simple possession of marijuana for example, off the table for nullification. these are the types of cases where juries could really send a message to the police and the community but they never get the chance.

Ripple Effects

Drug war victims include people who get busted as well as their friends and relatives hit by the drug war’s ripple effects.  Arrest 20,000,000 people for marijuana violations, and word tends to spread about how the cops and courts operate.  Add another 850,000 new drug war victims each year, and you have the underpinnings of a revolutionary force with serious political clout.  Clout that affects juries.

Tyranny’s lifespan is always limited.  There can be no doubt that prohibitionists work to produce their own defeat, but they take too long and they create way too much damage in the process.


lawyerscam;jobswipe;Jury of Angels

1. Get arrested for possession of marijuana and you will receive in the mail (they can read your name and address of officially posted information the cops laboriously wrote down during the taxpayer-financed arrest rigamarole) letters from "defense" attorneys warning you that YOU ARE IN SERIOUS TROUBLE but thankfully they are available to help at a minimum of $75. If you ignore the letters and go to court alone, your name will be read out, you stand up, and the judge says "Dismissed". Many youngsters and families facing that for the first time don't know, and pay the $75(+). The lawyer then takes credit for the miraculous relief, and the myth and system continue.

2. Carl lost a good job, now is a "felon" and can't earn money like normal folks do. Plus the arresting officer got promoted. There's a second beneficiary in that story: some servile cleannosed mediocrity slipped by and got the job that had been taken from Carl. One way of explaining how we got the industry and government we have now.

3. cweb has a good point about the empty courtroom. There needs to be an AGGRESSIVE volunteer community organization that reads the same info sheets those "defense" lawyers do and fills the courtroom with bodies on the day of your trial!

borden's picture

get a lawyer

Get a lawyer -- the best one you can manage to pay for -- not someone who only charges $75 and mass markets to you through the mail, I agree with that part. There's a very good chance that having a good lawyer or not will make the difference between beating the charge or getting off lightly, vs. bad things happening to you that could consume the rest of your life.

I always recommend the NORML Legal Committee listing, which can be found pretty easily on their web site. (I'm on a smart phone right now so it's not easy for me to look up the URL.)

David Borden, Executive Director the Drug Reform Coordination Network
Washington, DC

jury nulification

IF you are growing pot or doing anything else in the drug sub culture it's a good idea to find a good lawyer and keep him on retainer.I was lucky enough to find a good lawyer early in the game and kept him until he was made a judge.Once you have a good relationship you will find that a retainer is no longer necessary.I had a long career in the drug business back in the day and I spent almost eight years in prison before I found my lawyer.The drug laws here have changed so much that people just don't get hurt in court like they did in my day but this is Canada.If I lived in the US I would be sure to keep a good lawyer on retainer if I was involved in the drug game at all.Jury nullification is a nice idea but there have been enough accurate comments already pointing out the pitfalls in that idea.

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