Comal County has gotten a reputation for being a tough place to defend drug cases. However, we recently won a jury trial which shows that, at least with respect to Possession of Marijuana cases, this reputation may be based more on myth than reality. Comal County's image when it comes to drug cases is based largely on two facts: the County is politically very conservative, and it has elected County Court-at-Law judges who routinely hand out stiff punishments in marijuana cases. But juries in marijuana cases, on the other hand, are a sometimes a different story. What you find at jury selection in marijuana cases in Comal County is that many people who go around calling themselves "conservative" are, in fact, libertarians, and actually favor the legalization of marijuana. Last week, for instance, we picked a jury in a Possession of Marijuana case involving an arrest of a tuber on the Comal River during Fourth of July Weekend of last year.
When the State began questioning potential jurors about whether they believed that marijuana should be legal in some circumstances, such as for medical use, almost every hand went up. When the State asked whether the jurors could follow the law and convict someone of Possession of Marijuana where there was no medical issue, fully a third of the potential jurors (including a retired Drug Enforcement Administration agent) stated that they would be unwilling to convict anyone of possession of a small amount of marijuana, that it would violate their consciences to do so.
Upon further questioning by the judge concerning their ability to follow his instructions, the judge allowed some of these jurors to remain in the jury pool. The State then was forced to use up all of its peremptory strikes to get rid of these jurors, leaving a much less State-oriented final jury than what you normally see in Comal County. The jury that was finally sworn in was a jury that went into a marijuana case much more willing to question the State's evidence than a typical Comal County criminal jury. The end result: a "not guilty" verdict. Even though the cop in our case testified that our client admitted to having knowingly possessed the marijuana in question, the jury was unwilling to give the cop the benefit of the doubt when it came to judging his credibility.
When we spoke to jurors after the trial, they faulted the arresting cop for sloppy evidence collection and for failure to record the conversation that he had with our client. The lesson to draw from this trial: If the local judiciary is inclined to bury defendants in misdemeanor marijuana cases under the courthouse, then local defense attorneys should get more inclined to push marijuana cases to jury trial dockets. In Comal County marijuana cases, it's time to quit believing in myths and time to start believing in jurors.