All New Orleans prosecutors had to do was convince six people that a waiter at a famed French Quarter restaurant was guilty of a felony marijuana charge.
But as it turned out, there weren’t enough people willing to consider that possibility on Tuesday.
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.
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 let go for other reasons, but Waldron said Wednesday that 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.”
On Wednesday, prosecutors agreed to amend Kensey’s felony charge to a misdemeanor under a plea agreement. Kensey agreed to spend 12 weekend days in jail and forfeit the $100 in cash he carried on Bourbon Street in January.
Kensey’s sentence is far shorter than the years he might have faced if he had been convicted as charged. His attorney said it showed that District Attorney Leon Cannizzaro’s office bowed to the people’s will on marijuana crimes.
“I think the District Attorney’s Office heard their sentiments,” said Stavros Panagoulopoulos. “Given the current climate in our country with regards to marijuana, I think this was an appropriate solution.”
But a spokesman for the office called Panagoulopoulos’ interpretation “absolutely false.” Ken Daley said 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."
Daley said the trial would have gone forward Tuesday if the jury commissioner hadn’t sent home other citizens who showed up for jury duty that day.
The happy outcome for Kensey came after a high-stakes gamble.
A conviction for marijuana possession with intent to distribute carries a statutory range of one to 10 years in prison. But Kensey already had two prior felony convictions, one for the same charge and one for simple burglary.
Panagoulopoulos said his client could have faced 15 to 20 years behind bars if he was convicted as charged and prosecutors elected to treat him as a “triple bill” habitual offender. Cannizzaro once made far more frequent use of habitual-offender laws than most other Louisiana DA’s, although he’s tapered off the practice since 2017,
according to a report from the Lens.
Prosecutors in this case made clear that Kensey faced “serious consequences,” Panagoulopoulos said.
Noting that the trial never happened, Cannizzaro’s office said no decision had been made on whether to hit Kensey with a multiple bill.
“State law does present serious consequences for repeat felony offenders,” said Daley. “Repeat offenders and defense attorneys who disagree with the statute should take it up with the state Legislature.”
At a trial, prosecutors could have pointed to the fact that Kensey had admitted to having the weed, which was packaged in 17 individual baggies. Two cops said they spotted him talking to someone else with weed in his hand.
But Panagoulopoulos said he would have attacked the state’s case by calling friends of Kensey to testify that they were hobnobbing before a night on the town, not conducting a drug transaction.
“I was confident in public opinion and the people of New Orleans,” Panagoulopoulos said. “I was willing to trust in the jury’s judgment.”
As it turned out, the selection process yielded only five jurors — short of the six plus an alternate needed — before Waldron called it off. The judge bumped the case to Wednesday, when the plea agreement was reached.
The right of jurors to voice their objections to criminal laws stretches back centuries, according to Texas defense attorney Clay Conrad. He said the courts have upheld the power of jurors to “nullify” charges with acquittals, despite overwhelming evidence of a defendant’s guilt, if they object to the underlying law.
Conrad, who
wrote a book on the subject, dubbed the situation in New Orleans this week “attempted jury nullification.” He said he’s heard of a similar case in Montana that also involved marijuana.
“You need to have broader consensus that this is the right thing to do before you start throwing people in cages, and on marijuana, that consensus just doesn't exist,” Conrad said.
Kensey’s attempt to go to trial on a marijuana charge appears to be an outlier at Criminal District Court. According to District Attorney’s Office records, there were no defendants tried solely on marijuana charges in 2017 or 2018.
