JURIES: JUST SAY NO

When the jurors who last week convicted medical-marijuana cultivator
Ed Rosenthal later expressed disgust with their own ruling, I actually
yelled at my computer: "Well then why didn't you take Nancy Reagan's
advice and just say no?"

The trial was a joke from the start. Because Rosenthal was being tried
under federal law, not California's, the judge forbade any discussion
of the Golden State's medical marijuana statute or the fact that
Rosenthal was growing the pot with the special sanction of the city of
Oakland. As a result, the jury was not allowed to consider any such
information.

With no possible defense left, Rosenthal's attorney, Robert Eye, made
what the Sacramento Bee called "a thinly veiled plea for jury
nullification."

"Please do justice," he said. "We don't ask you to check your common
sense of justice at the door when you judge this case. I can only hope
there are those of you whose sense of justice"

Jumping on Eye, the judge interrupted and told the jury, "It's not
your determination whether a law is just or unjust. That can't be your
task." Going further, according to jurywoman Marney Craig, the judge
instructed, "You cannot substitute your sense of justice & for your
duty to follow the law."

The judge is wrong.

"If the jury feels the law is unjust," according to the Fourth Circuit
in the 1969 case U.S. v. Moylan, "we recognize the undisputed power of
the jury to acquit, even if its verdict is contrary to the law as
given by a judge, and contrary to the evidence. & If the jury feels
that the law under which the defendant is accused is unjust & the jury
has the power to acquit" (emphasis added).

Some buck at the notion of jury nullification. They see it as going
against the rule of law - a dozen anarchists passing judgment on a
whim. Endowed with such power and the guilty will walk free because a
chili onion supreme didn't sit well in the stomach of the jury foreman.

Perhaps - but the founders didn't see it that way.

"I consider trial by jury as the only anchor ever yet imagined by man,
by which a government can be held to the principles of its
constitution," said Thomas Jefferson in a 1789 letter to Thomas Paine.
His comments presuppose laws which go above and beyond the national
charter (such as drug prohibition today) and the jury's vital role in
seeing that no citizens are harmed by such tyrannical
legislation.

John Adams, the second American president, sang from the same hymnal.
"It is not only [the juror's] right, but his duty," he said in 1771,
"to find the verdict according to his own best understanding,
judgment, and conscience, though in direct opposition to the direction
of the court."

Likewise, in an 1804 libel case, Alexander Hamilton argued that "the
jury have an undoubted right to give a general verdict, which decides
both law and fact."

"This distribution of power, by which the court and jury mutually
assist, and mutually check each other," Hamilton continued, "seems to
be the safest, and consequently the wisest arrangement, in respect to
the trial of crimes. ... To judge accurately of motives and
intentions, does not require a master's skill in the science of law.
It depends more on a knowledge of the passions, and of the springs of
human action, and may be the lot of ordinary experience and sagacity."

In other words, the people are deemed sensible enough to decide when
one of their fellows is getting the shaft from an unjust law. This
only makes sense. The people are judged sensible enough to elect
legislators in the first place. If things go awry after the ballot
box, the jury box provides one more place to check and stop the
progress of tyranny by nullifying bad laws passed by those
legislators.

Far from viewing nullification as a gateway to random enforcement of
law and anarchy, the founders viewed it as an essential tool for
combating despotism and preserving liberty one more method of denying
absolute power to any single man or governing body.

What is so striking about nullification and the Rosenthal case in
particular is how applicable the reasoning of the founders proves to
be. The law violated the consciences of the jurors and was
unconstitutional, to boot.

"There is no such thing as medical marijuana," DEA spokesman Richard
Meyer told the Associated Press. "We're Americans first, Californians
second."

In terms of the law, that is unmitigated bull.

The U.S. Constitution gives the federal government no power to
prohibit pot. Article 1, Section 8, provides congressional marching
orders on many tasks - banning weed is not one of them. Neither is
skirting the 10th Amendment, which specifically holds the duties of
the government to what the Constitution permits; all else is the
business of the states alone.

Such is the case with California's medpot law, Prop. 215, which
permits precisely what Rosenthal was doing.

By nullifying, the jury would have been fulfilling Jefferson's
perceived role of the jury, holding the government to "the principles
of its constitution."

It's too bad the judge lied to the jury before it found Rosenthal
guilty. Had they known better, the jurors may have felt free to follow
their own conscience and sense of justice and thus spared an innocent
man from a travesty.

Find out more about the rights and duties of juries at Fully Informed
Jury Association. http://www.fija.org/