THE JURY NEVER RESTS

This is the extraordinary saga of one jury that, after the judge said,
"Case closed," simply refused to be excused -- or to excuse the judicial
system.

To the contrary, many of the federal jurors who in February convicted
Oakland pot guru Ed Rosenthal of felony marijuana cultivation are devoting
about as much time and effort to the case now as they did during the trial.
They're campaigning for a "Truth in Trials" law which would change how
juries in drug cases operate.

And when Rosenthal is sentenced Wednesday, those jurors intend to be in the
courtroom -- in a symbolic display of their support, like the letter they
just delivered to the judge requesting that he ensure Rosenthal's
"uninterrupted freedom."

"How could we do anything else? How on Earth could we walk away when we had
been part of the terrible injustice done to this man?" asks Charles
Sackett, a landscape contractor from Sebastopol who was the jury's foreman.

"We want the government to know that we, as concerned citizens, are
watching them. None of us has any history of activism of any kind, really
we're just average middle-class people. But going through this experience
is turning us into activists," adds Sackett, who says he feels like "a
shade plant that had been yanked out of the ground and put into the sun."

The jurors were stunned and outraged to learn that U.S. District Judge
Charles Breyer had prevented them from knowing Rosenthal was growing
medical marijuana under the terms of California's Prop. 215, or that the
city of Oakland had deputized Rosenthal to do so. While legal experts
generally agree with Breyer's ruling (that no matter what his reasons,
Rosenthal violated federal drug law), the jurors insist they had a right to
hear that Rosenthal was a grower sanctioned to help sick people, not some
drug kingpin.

Sackett recalls that within minutes of rendering the verdict, he felt
whacked by a splintered 2-by-4 when reporters revealed the full
circumstances that he hadn't been allowed to now. On impulse, he went
public with his protest -- even saying he hoped Rosenthal would win on appeal.

Soon jurors were contacting one another by phone, sharing their sense of
betrayal at what juror Marney Craig, a Marin County property manager,
labeled "a cruel charade."

"I've had trouble sleeping, because I wake up at 4 o'clock in the morning
and can't stop thinking about what I had unwittingly participated in. For
weeks I had trouble eating because I just had this pit in my stomach," said
juror Eve Tulley-Dobkin of San Francisco, a financial services project manager.

"I knew I needed to apologize not just to Mr. Rosenthal and his family, but
to the people of California who passed Prop. 215, not to mention all the
sick people who are no longer going to get their medicine."

Undoubtedly the federal Drug Enforcement Agency, whose spokesman initially
hailed the verdict with, "The people have spoken," would prefer now that
the people would just zip it.

Instead they are popping up on NBC's "Dateline" to denounce their own
verdict. They're attending press conferences in support of a bill
introduced by three California congressmen to permit a "medical defense" in
marijuana prosecutions. Sackett has been asked to testify in a Canadian
extradition trial about whether people charged with pot offenses can obtain
justice in U.S. courts.

The Rosenthal case was precedent-setting: Many legal experts believed no
Northern California jury would convict someone of growing medical marijuana
under the auspices of Prop. 215. But Judge Breyer gave the common jury
instruction: "You cannot substitute your sense of justice, whatever that
is, for your duty to follow the law."

On that point, several jurors believe they were misled.

American history is studded with examples of juries that refused to convict
because they disagreed with the law. In the 1735 case that established
freedom of the press, a New York jury refused to convict John Peter Zenger
of seditious libel for publishing a critique of a colonial governor --
affirming that regardless of the law, Zenger had a right to print the truth.

John Adams argued that it was each juror's duty "to find the verdict
according to his own best understanding, judgment, and conscience, though
in direct opposition to the direction of the court."

Slavery crumbled in part because juries in the North refused to convict
those citizens who assisted runaway slaves in violation of the Fugitive
Slave Act. Prohibition ended in part because juries refused to punish those
violating it.

But the modern legal establishment is extremely wary of jury nullification,
which, if it became common, could lead to individual jurors blithely
disregarding any laws they happen not to like. The U.S. Supreme Court has
ruled that courts need not inform jurors of their power to refuse to
convict if they believed a conviction on the facts proven at trial would be
unjust.

Today, several Rosenthal jurors are adamant that they would have acquitted
him had they known he was growing marijuana for medical purposes. They
believe jury nullification was -- or should have been -- an option.

But it's too late now.

In this bizarre tug-of-war between state and federal law, prosecutor George
Bevan is asking Judge Breyer to sentence Rosenthal, 58, to five years in
prison. The defense wants no prison time whatsoever. Its plea is bolstered
by the letter on his behalf signed by three-quarters of the jury.

"I now feel like I have a lot in common with Mr. Rosenthal. We both enjoy
growing plants. We just grow different plants," said jury foreman Sackett,
a self-described "simple gardener" who's been married 29 years and lived in
the same house for 26. "When this is all over, I intend to visit him. I
just have to wait and see whether I'll be visiting him at his home or in
prison."

E-mail Vicki Haddock at vhaddock@sfchronicle.com