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.

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  1. I think Omnibus Bill misses the point of jury nullification. It’s one more limit on goverment power, a brake rather than an accellerator. Juries doe not have the power to convict people of laws that do not already exist. As such a person would not be even in a trial if the law as written wasn’t being enforced. The judges have the power to instruct the jury to only focus on the facts as they relate to the law. That is still consistent with allowing juries to nullify a law they feel is unjust.

  2. The trial of OJ Simpson has absolutely nothing to do with Jury Nullification – this is just a Red Herring used to discredit the idea.

    Jury Nullification is a declaration by the jury that **even if the defendent is guilty** of the crime in question, he should not be punished. OJ’s jury, on the other hand, declared simply that they were not sufficiently convinced that OJ was in fact guilty.

    In all of the various interviews with and books by the OJ jurors that I have seen, I have never heard a juror admit that they believed OJ to be guilty, but that they deliberately let him go anyway. This was certainly not a statement by the jurors that murder should not be a crime.

    Rather, commentary on the trial emphasized the ways that the defense planted doubt in the jurors minds, causing them to truly feel uncertain as to whether OJ was a murderer.

    This trial does raise a lot of interesting issues: the role of jury selection, ‘expert’ testimony, the ability of the jury to understand scientific evidence, the role of the media in a jury trial, etc. But it has no bearing on nullification.

    There are good arguments against Jury Nullification (see Eugene Volokh for some examples), but OJ is not one of them.

  3. “The jurors reportedly were sympathetic to Rosenthal…But the foreman said they felt bound by federal law, which (unlike California law) does not recognize marijuana as a medicine.”

    So the purpose of jury by trial is not for the rulers, “the people”, to decide if the state is justified in its application of law, but rather to make official the decisions reguarding law that have already been made and written in stone.

    Whats the point?

  4. Of course juries are supposed to apply the law as written beforehand. If they were free to just rule thumbs up or down on any given issue, the accuracy of the justice system would be a hash. (Pardon the expression). The job of juries is to find facts, not to provide commentary on the laws. If the facts fit a pre-determined legal definition of the crime, a dutiful jury has no choice but to convict.

    Jury nullification is potentially destructive because allows the releasing of “popular” criminals, such as O.J. Simpson. Juries aren’t supposed to do this, but are allowed to do it because the Constitution gives the benefit of a doubt to defendants, and because the traditional role of juries is in fact powerful and respected by the courts. Juries are thought to be a buffer against tyrannous government action – and for most people, busting a pot grower, while it may not be good public policy, falls short of tyranny. The jury could have nullified the verdict with impunity in the Rosenthal case, had it wanted to – the jury chose to follow the law instead.

    Working in the other direction, if juries were not limited in their jurisdiction and scope by predetermined legal rules, they could convict defendants willy-nilly. This would be a denial of 14th and 5th Amendment due process because nobody could know what the law would be before they were haled before the court. In other words, all jury trials that ended up in conviction might be, in essence, retroactive application of the laws. Allowing jury nullification in this direction would result in a system that looked more like the Salem witch trials than a modern court room.

  5. To Omnibus Bill and others who cast a dim view of jury nullification: Having spent time on a jury, and talked to other jurors over the years, I disagree that juries would, en-masse, abuse the power of jury nullification. Juries are concerned with getting justice, for the victims, for society, and for the defendants. If it is unjust to convict someone because of a bad law or an abusive application of the law, juries must follow their consciences and common sense, because those are really the only things they bring to the jury box — judges and legal teams routinely dismiss potential jurors who have specific expertise in science, forensics, and even foreign languages that are germane to a case, because they do not want previously acquired knowledge or experience to affect the juror’s view of the “facts” as established during a trial.

    Juries are NOT under any obligation to convict. If Judge Breyer, in effect, told jurors not to follow their consciences in this case, then he acted to impede justice. A jury that cannot make up its mind is a mistrial, allowing the prosecution to try again if that is thre right thing to do. But a jury that acquits is unanimous in its view that the accused “did nothing wrong,” that he or she is “not guilty.” The federal constitution declares that “not guilty” from the jury is the final word, precluding any future trial on the same counts. On the other hand, a “guilty” verdict can be appealed and reversed or set aside for a variety of reasons. The chances that a guilty person will go free, due to popularity or jury irrationality, would seem vanishingly small to me. By the same token, a person wrongly convicted by a vindictive or ignorant jury has numerous options for appeal.

    If juries across the country, free to vote their consciences, would fail consistently to convict non-violent drug offenders, what would that say about the true authority of the law? Why are the governnment and people like Omnibus Bill so determined NOT to find the answer to that question?

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