Jury Rigging

Ed Rosenthal never had a chance.

During Ed Rosenthal's trial, a defense witness mentioned that he had met the marijuana cultivation expert "in the context of Proposition 215." U.S. District Judge Charles Breyer interrupted the witness, instructed the jury to disregard his statement, and took over the questioning.

The reason for Breyer's heavy-handedness was clear: He did not want the jury to consider the fact that Rosenthal was growing marijuana for medical use, which is legal under Proposition 215, an initiative that California voters approved in 1996. Since federal law does not recognize marijuana as a medicine, the judge reasoned, Rosenthal's motivation was irrelevant to the question of his guilt. '

Because no one disputed that Rosenthal had grown marijuana, the jurors felt they had no choice but to convict him of federal charges that carry a five-year mandatory minimum sentence. But at a recent press conference in San Francisco, five members of the jury, saying they spoke for at least two more, complained that they had been led by the nose to a result that was manifestly unjust.

"'I'm sorry' doesn't begin to cover it," said one. "It's the most horrible mistake I've ever made in my entire life." The foreman, Charles Sackett, said, "We as a jury truly were kept in the dark."

That is not entirely true. After the verdict, Sackett himself told The New York Times: "I am for the use of medical marijuana, as a number of jurors were. But we just couldn't base our decision on that...We followed the letter of the law. We followed the court's instructions."

At least some of the jurors clearly knew why Rosenthal was growing marijuana, although they may not have understood the extent of his cooperation with local authorities. The city of Oakland had asked Rosenthal to help supply patients who were not able to grow their own cannabis. It even deputized him as an "officer of the city" in an attempt to shield him from prosecution.

"If I had known that he was told he could grow this by the city, that would have raised some questions for me," a juror told an AlterNet reporter. "It's a waste of taxpayer money to bring these cases."

Another said: "The more information we get, the more we realize how manipulated and controlled the whole situation was...As residents, we voted to legalize medical marijuana, and now we are forced to sit here and not take any of this into consideration?"

For those who believe the sole legitimate role of a jury is to determine the facts, the answer is plain: Yes, the jurors had an obligation to put aside their personal views about medical marijuana and apply the law as it was explained to them. But for those who believe jurors ought to judge the law as well as the facts, it's clear they had a duty to acquit if they decided the law, or its application in this particular case, was unjust, unconstitutional, or both.

Many people, especially conservatives, are troubled by the idea of jury nullification, with its apparent invitation to apply vague, unwritten standards. But the Rosenthal case shows how this power, which has a venerable history in Anglo-American law, can help combat a far more dangerous kind of lawlessness.

Whatever one thinks of marijuana's merits as a medicine, the Constitution simply does not give the federal government the authority to override a state's judgment on this issue. As Rosenthal's attorneys pointed out in a pre-trial brief, "the class of activity involved is entirely local and does not affect, much less substantially affect, interstate commerce."

Although this is the strongest legal argument in Rosenthal's favor, in a sense it proves too much, calling into question not just the war on drugs but much of what the federal government has been doing since the New Deal. Hence it's unlikely that an appeals court will take this opportunity to affirm that there are limits to the federal government's powers under the Commerce Clause, despite the Supreme Court's recent moves in that direction.

That leaves the task of defending the Constitution to juries. "I think jury nullification is going to be part of the answer regarding states' rights in future cases," Sackett, the jury foreman, told AlterNet.

It seems Sackett first learned about jury nullification only after the trial. Ignorance of their own power may be the crucial way in which he and the other jurors were kept in the dark.

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