When a jury should just say no

San Francisco Chronicle, February 19, 2003, Page A - 23
© 2003 San Francisco Chronicle Op-Ed by Judith Appel & Alexandra Cox

"Jurors should acquit, even against the judge's instruction . . . if exercising their judgment with discretion and honesty they have a clear conviction the charge of the court is wrong." -- Alexander Hamilton, 1804

It is a long-standing precept that juries act as the collective "conscience of the community" -- hearing the facts of a case and applying them to laws developed through the democratic process. Serving on a jury is a fundamental civic duty -- right up there with voting -- and as such sits at the heart of our democracy.

Yet, when members of a federal jury late last month convicted medical marijuana activist Ed Rosenthal without being able to consider that he was growing pot to be used as medicine under California's Proposition 215, the integrity of our system of justice was seriously threatened.

Hours after the jury voted to convict Rosenthal, the majority of them renounced their decision as, in the words of one juror, a "horrible mistake." The clear discordance between the jurors' beliefs and their verdict forces us to question the validity of the Rosenthal trial. It's not just that the majority of the jurors didn't want to see Rosenthal imprisoned for the federal mandatory minimum term of five years; they think that his actions should not have been criminalized at all.

Jury nullification -- or the jury's ability to acquit the defendant if the jurors have no sympathy for the government's position -- is a right afforded to all juries, firmly grounded in the Sixth Amendment of the U.S. Constitution and deeply ingrained in American history. It is, in short, an expression of the "conscience of the community."

In the early years of the republic, jury nullification was a popular means through which communities voiced their opposition to criminal laws. It led to an acquittal for William Penn for unlawful assembly in 1670 and for draft resisters during the Vietnam War.

By arresting and prosecuting people such as Ed Rosenthal, the federal government is defying the will of the people. More than 80 percent of the national population believes that sick and dying people should have access to medical marijuana, and eight states have passed laws legalizing medical marijuana. When the government of the people refuses to recognize the will of the people, jury nullification is an appropriate response.

But the jury in the Rosenthal case was not allowed to hear about medical marijuana, or about Rosenthal's deputization by the city of Oakland to serve as an official medical marijuana provider, or, for that matter, any of the other undisputed facts that might have pricked the jurors' consciences. Hence the cries of foul play and heartfelt apologies by several jurors when they learned about the full facts of Rosenthal's case -- but only after voting to convict.

By charging Rosenthal under federal law, prosecutors effectively used the federal court to conceal their embarrassment about states legalizing medical marijuana. Marijuana remains a Schedule I controlled substance under federal law, which means that it has no recognized medical efficacy and is subject to the strictest of standards. So, while the judge, the prosecutors and the defense attorneys were all well aware of Rosenthal's role as a medical marijuana grower, they could never mention the words "medical marijuana" in front of the jury.

This manipulation of the justice system is an obvious attempt by the federal government to intimidate medical marijuana growers and patients across California, and a disingenuous attempt to beguile the jurors in the Rosenthal case.

As the case demonstrates, defense attorneys are prohibited from speaking about nullification, and nullification is never mentioned in the instructions to the jury. This was not always true. Now, more than ever, juries need to be informed of their fundamental right to acquit.

More than 20 California medical marijuana cases are pending in federal court, with nearly a dozen convictions of medical marijuana growers. Now is the time for federal juries in California and elsewhere to understand that they have a moral obligation -- and legal right -- to exercise their consciences to acquit persons prosecuted by the government for providing the sick and dying with medicine that can often be the difference between life and death, comfort and agony.

* To be sure, jury nullification can be (and has been) used for unjust as well as admirable ends. And jury nullification is properly reserved for extraordinary circumstances. As one federal appellate court noted with respect to the power to nullify, "[w]hat makes for health as an occasional medicine would be disastrous as a daily diet." After all, a system of justice founded on the rule of law is central to the protection of our most fundamental rights.

But where the law and/or the government go astray to the point where they defy not just majoritarian sentiment but also reason, compassion and justice, it is the duty of juries to exercise their judgment with discretion.

Judith Appel and Alexandra Cox work for the Office of Legal Affairs for Drug Policy Alliance (www.drugpolicy.org), which promotes alternatives to the war on drugs.

* This paragraph did not run in the print version