JUSTICE GOES TO POT

Overcoming a Flawed Medical-Marijuana Policy

Senator Richard J. Durbin (D., Ill.) is 58 years old and a graduate of
Georgetown Law School. He has been in federal elected office for more
than 20 years. His official duties include appointments on his
chamber's Judiciary Committee, the Governmental Affairs Committee, the
Committee on Rules and Administration, and the Select Committee on
Intelligence, as well as about a dozen subcommittees. His demeanor is
serious, sober and focused.

So why does Durbin want juries to ignore federal law?

Durbin is currently seeking cosponsors for a bill that allows federal
juries to be informed when defendants facing medical marijuana charges
were in fact complying with state medical-marijuana laws. A similar
measure is pending in the House (introduced by Sam Farr, D., Calif.).
Federal prosecutors say if these bills pass and juries learn that
marijuana involved in a case is for medical use, they will commit
"jury nullification of the law" - acquitting plainly guilty criminals.

Durbin's measure may be a reaction to the conviction of Edward
Rosenthal, who grew marijuana in California for distribution to
medical dispensaries. His actions were legal under California
Proposition 215, and he was deputized by the city of Oakland to
provide his product to dispensaries there. Rosenthal's growing
operations were inspected, licensed, and approved by all branches of
California government.

It took a pool of 80 potential federal jurors to find 12 willing to
convict Rosenthal. During jury selection, most of those summoned said
they could not brand someone a felon for growing medical marijuana.
Even after eliminating those who would not convict in a medical case,
Judge Charles Breyer prevented any mention of medical use from
reaching the jury during the trial. The jury heard nothing about why
Rosenthal was growing marijuana. He was disingenuously portrayed by
prosecutors as a common drug dealer, not as a conscientious caregiver.

Most legal commentators agree Judge Breyer made the technically
correct call. Under traditional notions of relevance, if a fact does
not make an element of the crime (i.e., growing marijuana) more or
less likely, it is irrelevant. How that marijuana is to be used is not
a "legal" factor. Under this theory, any evidence that serves no other
purpose than to undermine the moral underpinnings of the law is
inadmissible.

Following the conviction, nine jurors did something that, in most
cases, would be unthinkable: They publicly expressed remorse for and
denounced their own verdict. Jury foreman Charles Sackett apologized
to Rosenthal and expressed shock and outrage after learning the jury
had been prevented from hearing Rosenthal's story. Several jurors held
a press conference, complaining that they had been misled,
manipulated, and bullied into convicting. The conscience of the
community had been stifled.

Sackett has said the jury probably would have nullified the law and
acquitted, had they known they were considering a medical-marijuana
case. "I think jury nullification is going to be part of the answer
regarding states' rights in future cases," he said. However, for
juries to come to a conscientious judgment, they must hear the whole
case. Preventing the jury from knowing that this was a
medical-marijuana case slandered Ed Rosenthal, misled the jury, and
led to the unsavory conviction of a man who, instead of dealing poison
on the street and destroying his community, was in fact administering
to AIDS, MS, cancer, and glaucoma patients.

Not all federal judges accept Breyer's constrained view of relevance.
Senior Federal District Judge Jack Weinstein has noted that "courts
cannot and should not try to prevent, by restricting evidence unduly
or by leaning on jurors, a certain degree of freedom of the jurors to
come in with verdicts which may not reflect, in an abstract way, what
the facts and the law are." Federal Judge Kenneth Hoyt has written
that, as "part of the deliberative process is to determine the moral
'rightness' of the result reached," "the justice system must be
flexible enough to permit acts of mercy by a jury where the facts
dictate morally and ethically that mercy is appropriate."

Senator Durbin's bill is in line with the history and purpose of the
American criminal jury system, which has been likened to the "fourth
branch of government" and the "final check and balance." His measure
would allow jurors to know whether the verdict they are asked to
return would be a just one. If not, jurors could refuse to convict -
nullify the law - on their own initiative. Durbin's bill will merely
allow the jury system - the conscience of the community - to dispense,
as Judge Hoyt so well put, "acts of mercy .. where the facts dictate
morally and ethically that mercy is appropriate."