Outraged at Their Own Verdict

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Jurors from Ed Rosenthal's marijuana trial are scheduled to condemn the outcome of the case at a press conference in San Francisco today. According to a press release from Americans for Safe Access, a medical marijuana group, jury foreman Charles Sackett and two other jurors will "apologiz[e] to Rosenthal for a verdict they say was not just. They also will present a letter asking for a retrial."

Rosenthal, who was growing pot under the city of Oakland's medical marijuana program, was convicted of cultivation and conspiracy on Friday; he faces a five-year mandatory minimum sentence. "After Friday's verdict," the ASA press release says, "many jurors expressed shock and outrage after learning that prosecutors blocked Rosenthal's side of the story. Jurors said they felt 'used' and 'railroaded,' and that the trial had been a 'kangaroo court.'"

These comments are puzzling in light of what Sackett, the jury foreman, told The New York Times last week. He

said the jury was largely sympathetic to Mr. Rosenthal's predicament. But, Mr. Sackett said, jurors were left with "no legal wiggle room" because of the decision to exclude any discussion of Proposition 215 [California's medical marijuana initiative].

"It was one of the most difficult things we ever did as jurors," Mr. Sackett said of separating the state and federal aspects of the case. "We followed the letter of the law. We followed the court's instructions."

Mr. Sackett said that he had voted for Proposition 215 and that he hoped Mr. Rosenthal would ultimately prevail in a higher court.

"I am for the use of medical marijuana, as a number of jurors were," he said. "But we just couldn't base our decision on that."

This account indicates that the jurors knew why Rosenthal was growing marijuana, even if he was not allowed to talk about it in court. (Federal law, unlike California law, does not recognize marijuana as a medicine, and the U.S. Supreme Court has ruled that "medical necessity" is not a defense against federal marijuana charges.) As yesterday's commenters noted, the jurors could have voted their consciences, refusing to convict Rosenthal because they considered the law under which he was charged (or its application in this case) unjust, unconstitutional, or both. Instead, they did as they were told. They were not tricked, it seems, so much as intimidated.

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  1. On Friday 1/31, radio talk-show host Gene Burns of KGO 810AM in San Francisco interviewed jury foreman Sackett, who claimed that he did not understand the concept of jury nullification, and that he certainly would NOT have voted to convict if he had any inkling of Rosenthal’s status as agent of the city of Oakland in growing medical marijuana.

    On Tuesday 1/4, Burns spent the first half hour or so of his show, once again explaining the concept of jury nullification, as well as the 9th and 10th Amendments to the US Constitution, and encouraging all “California citizens” to oppose the Federal government in its game of hardball, by routinely using nullification to prevent federal convictions for the possession, use, or sale of marijuana, medical or not. Since “The Feds” won’t tell you whether the case involves medical marijuana or not, reasoned Burns, the only way to effectively stand up for Prop. 215 is to vote “not guilty” on ALL pot-related charges. He said that supporters of medical marijuana or states’ rights could expect no help from Governor Davis or CA Atty General Lockyer, calling them “forelock tuggers” who didn’t want to lose favor with the Federal authorities.

    I don’t think I have ever heard such a blunt call for civil disobedience from a major-market radio talk show host. Burns is, after all, an employee of ABC/Disney.

    I was not able to listen long enough to determine if Burns distinguished between non-violent and violent drug offenders. I suppose that would translate into “not-guilty” verdicts for the pot-related charges and “guilty” or “not-guilty” for the violence-related charges, depending upon the evidence. So no potential “jury nullifier” would ever have to worry about letting a violent criminal go free.

    I have to say that those two Gene Burns shows included some of the most exciting radio moments I have ever heard. I’m looking forward to hearing whether he continues with this civil disobedience crusade in future shows. The KGO signal is heard up and down the Pacific Coast, and Burns’ show is at night, so he gets the benefit of the best long-distance signal propagation conditions. Those who have watched with dismay, as the federal government used its big megaphone to spread anti-drug propaganda at taxpayer expense, may now see what happens when the other side gets a big megaphone. However it plays out, I think we are in for an interesting few weeks or months ahead.

  2. I think this is very sad. And points out the need for all who oppose state tyranny to work to make sure that all citizens know that their duty as jurors is to determine JUSTICE, not to merely be a rubberstamp for anything that the state wants to do.

    We ALL need to understand that jury nullification is not only a right, but a duty in appropriate cases.

    N_J

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