POT CASE FUELS JURY POWER DEBATE

Jurors who convicted Oakland medical marijuana grower Ed Rosenthal keep
saying they now wish they had not done so, something they said most
recently to a national television audience Friday.

They know Rosenthal grew marijuana and they know federal law plainly
forbids that. But the jurors say if they'd known more about the medical
purpose for which Rosenthal acted, they would have "nullified" -- refused
to find him guilty, knowing he broke a law but believing the law itself is
unjust or misapplied.

Now Rosenthal's case has re-ignited debate over whether jury nullification
is anarchy or a basic, unwritten civil right.

"Juries clearly have the power to nullify, but it's also perfectly clear
that's not what we want them to do," saidProfessor J. Clark Kelso, at the
University of the Pacific's McGeorge School of Law in Sacramento. "You
don't want to be telling jurors that, 'Oh, by the way, you don't have to
follow the law.'"

That's exactly what jurors should know, said Iloilo Marguerite Jones, the
executive director of the Fully Informed Jury Association, a Montana-based
nonprofit organization that champions juries' power to weigh not only
evidence but also a law's merit and use.

"The court of public opinion is distilled and refined into its essence in
the creation of a jury, and in their deliberations. ... They reflect the
conscience of the community and the highest and best use of our justice
system," she said.

Jury nullification advocates like Jones note some founding fathers thought
likewise.

John Adams in 1771 said, "It is not only the juror's right, but his duty to
find the verdict according to his own best understanding, judgment and
conscience, though in direct opposition to the instruction of the court."
Thomas Jefferson in 1789 said, "I consider trial by jury as the only anchor
yet imagined by man by which a government can be held to the principles of
its constitution."

And Alexander Hamilton in 1804 said, "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."

But critics say our judicial system has evolved since then, situating
jurors as triers of fact -- deciding what actually happened -- and leaving
the law's application and interpretation to judges.

It's both a means of ensuring equal protection under law and "a due-process
concern," Kelso said. "I have a right to be judged according to the law I
know. You can't have criminal laws made up after the fact and applied
retroactively.

"The only way that works is if the judge instructs the jury on the
applicable law," he said, with jurors "applying the law to the facts they
find."

Kelso said citizens have their say by electing and lobbying representatives
who make laws. If people think a law -- in Rosenthal's case, the federal
marijuana law -- is unjust, "the solution is not to undermine the jury
system, the solution is to try to change federal law.

"There is no right of nullification," he said. "They have a power solely as
a consequence of the fact that normally we don't invade the jury's
deliberative process."

The California Supreme Court issued a pair of simultaneous, unanimous
rulings in 2001 saying just that.

"A nullifying jury is essentially a lawless jury," Chief Judge Ronald
George wrote. "Jury nullification is contrary to our ideal of equal justice
for all and permits both the prosecution's case and the defendant's case to
depend upon the whims of a particular jury."

But the court also strictly limited what can be done about it, leaving
judges the power to intervene only when jurors flatly refuse to deliberate
or to follow instructions -- a sort of "don't ask, don't tell" situation.

Jones insists nullification doesn't violate equal protection, and said
relying on elected lawmakers isn't enough.

"Our legislatures... come together and enact laws often unaware of how
those laws may be applied or accepted in their communities or by the
country," she said, citing as an example the 1920s prohibition of alcohol.
"It is the jury that is the final test of the validity of those laws in
their application to the citizens."

Sometimes nullification spurs legislative change, she said, noting New
England juries refused to convict under 1850's federal Fugitive Slave Act
requiring escaped slaves to be returned to Southern owners. Actually, that
act wasn't repealed until 1864, after some states passed laws conflicting
with it -- much as California's and seven other states' laws conflict with
federal marijuana law -- and years after the Civil War had erupted.

Letting juries decide a law's merit means depending on the values of any
dozen citizens, which might require a very positive view of human nature.
For example, when all-white Southern juries acquitted their peers of
heinous, racist crimes against African-Americans and civil rights activists
despite clear evidence, that was jury nullification, too.

But Jones said newer and fairer jury selection procedures help eliminate
such biases.

"If we cannot depend upon 12 independent individuals to sit down in careful
deliberations and come back with their best verdict to be rendered in the
spirit of justice, fairness and mercy ... and to mitigate each others'
prejudices and inclinations by their consultation as a group... then we
both underestimate and fail to understand what our founding fathers left us
as a heritage of justice in this country," she said.