No Medical Excuse

Those of us who were hoping for a little jury nullification in Ed Rosenthal's marijuana trial were disappointed on Friday, when a federal jury convicted him of charges that carry a five-year minimum sentence. The jurors reportedly were sympathetic to Rosenthal, who was growing pot for patients under the city of Oakland's medical marijuana program. But the foreman said they felt bound by federal law, which (unlike California law) does not recognize marijuana as a medicine.

The jurors were told not to consider Rosenthal's motivation in deciding whether to convict, and because of mandatory minimums the judge could not take it into account when imposing a sentence. But it seems the jury managed to sneak in a little mercy under the guise of a factual determination. It rejected the prosecution's contention that Rosenthal had planned to grow 1,000 plants, deciding the amount was more like 100. That decision reduced the minimum sentence from 10 years to five.

The jury foreman said he hopes Rosenthal will win on appeal. It seems unlikely. The strongest argument in his favor--that the federal ban on marijuana is unconstitutional because it exceeds Congress' authority under the Commerce Clause--proves too much, calling into question not only the war on drugs but much what the federal government has been doing since the New Deal.

Rosenthal's legal defense fund has a site here.