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Written by Chris Conrad   
Is jury nullification the next step?
Jury Revolt — Left to right: San Francisco DA Terrence Hallinan, Jane Klein, her husband Ed Rosenthal and daughter Justine, juror Pam Klarkowski and jury foreman Charles Sackett, at microphone, held a February 2003 press conference to denounce the guilty verdict that was handed down in Rosenthal’s federal cannabis trial. Jurors revolted after learning that facts such as medical intent and local approval of Rosenthal’s actions were not included in “the whole truth” jurors were allowed to hear. Photo: Chris Conrad
Image Editor’s note: The power of the jury to acquit in the interest of justice, despite evidence of guilt, is a controversial legal issue that has drawn increasing attention as defendants have been stripped of their legal defenses in federal court.
    Does the ban on providing jurors with “the whole truth” about medical use give jurors “reasonable doubt” of guilt in all federal cannabis cases?
    Clay Conrad (no relation to Chris Conrad) reminds jurors that it’s not a crime to vote to acquit.
Since the June 6 Gonzalez v. Raich Supreme Court decision, medical marijuana supporters have largely determined to focus on lobbying Congress. While Raich did not overturn state medical marijuana laws in the eleven states that have them (Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and Washington), it does permit the federal government to arrest patients in those states. (State laws exempt qualified patients who use cannabis from state criminal penalties.)
    Congress promptly voted down a bipartisan budget amendment sponsored by Reps. Dana Rohrabacher (R-CA) and Maurice Hinchey (D-NY) to prohibit the federal government from spending taxpayer dollars to prosecute patients who comply with their home state’s medical marijuana laws. It seems a stretch to believe that this
Congress will act to protect these patients.
    In some areas, particularly the San Francisco/Oakland area of Northern California, it seems likely that jury nullification may be an increasing threat in federal marijuana cases. In 2003, jurors revolted after convicting Ed Rosenthal of growing 100 pounds or more of cannabis in a highly disputed San Francisco federal case.

In some areas, particularly the San Francisco/Oakland area, it seems that jury nullification may be an increasing threat in federal cases.

    The jury was outraged that they had not been informed that Rosenthal was growing the cannabis for distribution to medical dispensaries. Juror Marney Craig, a 58 year old Marin County property manager, labeled the trial “a cruel charade.”
    “It is the most horrible mistake I have ever made,” she told the national press. “I feel like we were sheep, we were manipulated.”
    Foreman Charles Sackett said, “I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy, as well as doctor and patient rights, and indeed your own family, are irrelevant to this case.”
    Following Rosenthal’s conviction, five of the jurors joined Rosenthal on the steps of the Federal Courthouse, denouncing their own verdict, saying they had been manipulated and misdirected, and demanding that Rosenthal receive a new trial.
    Not surprisingly, the trial court judge, Charles Breyer (brother of U.S. Supreme Court Justice Steven Breyer) refused to consider the jurors protests or grant a new trial. However, in the glare of negative publicity, Judge Breyer eventually gave Rosenthal - whom the federal government wanted to send to prison for six and a half years — a startling one-day sentence.
    The Rosenthal jurors convicted without being aware of their nullification prerogative; in fact one had been erroneously advised by an attorney that no such power exists.
    However, the Rosenthal case made the issue of jury nullification a front page item — and cast it in a positive light for millions of Americans.
    Articles on the jury revolt, often including statements by Sackett and others that jury power would play a large rule in future trials, were carried by the New York Times, Newsday, the Washington Post, Reuters, the San Francisco Chronicle, San Francisco Examiner, Oakland Tribune, the Chicago Tribune, the Associated Press and elsewhere. The jurors themselves appeared on numerous nationally televised news broadcasts.
    Will medical marijuana advocates, such as Americans for Safe Access, NORML and Green-Aid, find that educating the jury pool in their nullification prerogative is their only way to defeat the federal efforts to steam-roller their home-grown velvet revolution? It wouldn’t be an unreasonable choice. Particularly in Northern California, it would be difficult to imagine putting together a jury of 12 people without including at least one medical marijuana supporter.
    Such a person could simply refuse to convict, claiming to find the evidence unconvincing, and thereby avoid a conviction. Any acquittals and/or hung juries would successfully announce to other potential jurors that they simply do not have to convict. In short, a few recalcitrant “stealth” jurors could cut government prosecution efforts off at the knees.
    Moreover, should jurors decide not to convict in cases of this sort, Congress might be spurred on to finally pass a law exempting state-authorized medical marijuana patients from prosecution.
    The acquittal of John Peter Zenger paved the way for the reform of English libel law, and as the acquittals of abused women in “burning bed” cases paved the way for battered woman syndrome defenses, have shown that jury nullification can foreshadow dramatic changes in the law.
    Independent jurors could force a change in the way our drug laws treat seriously ill people who smoke cannabis to relieve suffering and prolong their lives.
Conrad ( This e-mail address is being protected from spam bots, you need JavaScript enabled to view it ) is author of Jury Nullification: The evolution of a doctrine. (Carolina Academic Press, 1998)
 
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