WHEN A JURY SHOULD JUST SAY NO

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.

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.