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Not Guilty: Jury Acquits in Two Pot-Plant Case

From The Hook

Original article available here

In a case closely watched by civil liberties groups and law enforcement, Philip Cobbs was found not guilty of possession of marijuana in a day-long jury trial.

Cobbs, a 54-year-old who takes care of his elderly mother, was arrested last summer after a marijuana eradication helicopter flew over his southeastern Albemarle home and spotted two pot plants near his house. A team of approximately 10 law enforcement agents drove up bearing semi-automatic weapons and confiscated the illegal plants. A month later, he received a summons to court.

His case was taken up by the Albemarle-based Rutherford Institute, which focuses on Constitutional issues. Cobb was convicted of possession in October, and appealed the case.

"I feel like justice finally was done," said Cobbs after a seven-person jury deliberated for about two hours– including a dinner of Domino's pizza– July 18.

Cobbs maintained that he didn't know the plants were growing in an overgrown area in his backyard.

Arguments revolved around whether Cobbs was expressing surprise or admission when he remarked to one of the gun-toting officers that he didn't think such an effort would be waged against such a small amount of contraband.

"It's not the crime of the century folks," Albemarle prosecutor Matthew Quatrara acknowledged in his closing. "But it is the law."

With a majority of Americans now saying they don't think pot should be illegal, the prosecution demanded that the jury entertain no effort to practice nullification. Prior to opening arguments, the judge dismissed six potential jurors– including five of the first 13 interviewed– for revealing a disinclination or refusal to convict someone of pot possession.

"The law does not permit you to invalidate your finding of guilt," prosecutor Quatrara reminded jurors in his closing argument, "based on your disagreement with the the law."

He added that disapproval with police tactics was another invalid reason reason for acquittal. (The firepower, he noted, may stem from the uncertainty of any drug bust; as for a helicopter, he called that "an efficient way to see marijuana.")

In the end, according to at one juror, it boiled down to reasonable doubt and not to an example of jury nullification.

"We stuck to the facts," said juror Jeannette Kerlin, a former Scottsville town councilor. "I don't agree with the law, but that doesn't mean I don't abide by it."

Citing the lack of photographic evidence from police, which offered up one picture of two pot plants, but none of the deer netting and stakes they said surrounded the plants, Kerlin said, "I personally did not believe that the prosecution proved their case beyond a reasonable doubt."

The jury instructions noted that a conviction required that Cobbs had "dominion" over the plants.

"They never proved that he had dominion over those plants," said Kerlin. "Mr. Cobbs has a 19-year-old and a 20-year-old son, and they have friends over there. Did Mr. Cobbs actually know about it? Dunno."

According to Kerlin, two members of the jury were initially leaning toward conviction, but after presentations of everyone's thoughts, they reached unanimity with "a lot of talking" and "no arguing."

"The jury worked extremely hard for not quite two-and-a-half hours on a very difficult case," prosecutor Quatrara said after the verdict.

"I think they looked at the evidence," said defense attorney Andrew Sneathern.

"This is a good victory for Albemarle County," says John Whitehead, the Rutherford Institute founder, who objects to law enforcement flying over houses looking for pot plants when the Bill of Right guarantees that that citizens shall not be subject to unreasonable searches and seizures and that searches require warrants from the court.

"Make these guys go after a warrant," says Whitehead. "They ran roughshod over the Fourth Amendment. Drones are next."

"The jury system works," Whitehead adds. "The best way to win a case is with the jury system of your peers."

Whitehead says he remembers asking Cobbs the first day Cobbs came into his office why he was fighting the charge. "He said," relates Whitehead, "It just wasn't right."

Weeding out: Potential jurors have problem with pot laws

"I think this whole thing is a waste of time," said Richard Merkel, a psychiatrist and potential juror in today's marijuana possession trial against an Albemarle County man.

Merkel was among five people struck from the first group of 13– all because they had a problem with this country's criminalization of people using marijuana.

The case in Albemarle Circuit Court pits the state possession law against Philip Cobbs, a 54-year-old man who lives on a family farm in southeastern Albemarle where he takes care of his mother. As detailed in a Hook cover story, SWAT team arrived at his home last summer, where they allegedly found two pot plants. Cobbs denied the plants were his, but was found guilty of possession last fall in General District Court. His appeal resulted in the July 18 jury trial.

"This is not the crime of the century," conceded prosecutor Matthew Quatrara. "It involves a controversial topic. People will have an opinion about the law."

And, among the jury pool, they did.

"Pragmatically, I don't think it's an efficient use of the legal system," said Douglas DeGood, a psychologist with UVA, even as he noted, "I'm not a promoter or fan of marijuana."

After DeGood said he would not be comfortable convicting someone of marijuana possession, he too was struck from potential jury service Wednesday morning.

This isn't the first time Albemarle has had trouble seating a jury in a pot case. Judge Cheryl Higgins, who, during a break, chatted with a visiting gaggle of Rutherford Institute interns told them, "The last marijuana case we tried, we couldn't even seat a jury because they were so biased against the marijuana laws."

Higgins revealed that she called a larger-than-normal pool of 24 potentials to make sure she could seat a jury.

One person who opposes pot laws but still made it onto the seven-person jury is Jeannette Kerlin, a former member of the Scottsville Town Council who told Higgins that her "law-abiding" stance would permit her to rule dispassionately on drug laws.

"Our laws are archaic," says Jordan McNeish.

A convict who turned activist after spending nearly half a year in jail for getting caught with 2.6 ounces of pot, McNeish expressed no surprise upon hearing about the difficulty of seating a jury for a pot possession case.

"Popular opinion is shifting," says McNeish. "Prohibition is definitely losing its popularity."

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