JURY RIGGING

Ed Rosenthal never had a chance.

During Ed Rosenthal's trial, a defense witness mentioned that he had met
the marijuana cultivation expert "in the context of Proposition 215." U.S.
District Judge Charles Breyer interrupted the witness, instructed the jury
to disregard his statement, and took over the questioning.

The reason for Breyer's heavy-handedness was clear: He did not want the
jury to consider the fact that Rosenthal was growing marijuana for medical
use, which is legal under Proposition 215, an initiative that California
voters approved in 1996. Since federal law does not recognize marijuana as
a medicine, the judge reasoned, Rosenthal's motivation was irrelevant to
the question of his guilt. '

Because no one disputed that Rosenthal had grown marijuana, the jurors felt
they had no choice but to convict him of federal charges that carry a
five-year mandatory minimum sentence. But at a recent press conference in
San Francisco, five members of the jury, saying they spoke for at least two
more, complained that they had been led by the nose to a result that was
manifestly unjust.

"'I'm sorry' doesn't begin to cover it," said one. "It's the most horrible
mistake I've ever made in my entire life." The foreman, Charles Sackett,
said, "We as a jury truly were kept in the dark."

That is not entirely true. After the verdict, Sackett himself told The New
York Times: "I am for the use of medical marijuana, as a number of jurors
were. But we just couldn't base our decision on that...We followed the
letter of the law. We followed the court's instructions."

At least some of the jurors clearly knew why Rosenthal was growing
marijuana, although they may not have understood the extent of his
cooperation with local authorities. The city of Oakland had asked Rosenthal
to help supply patients who were not able to grow their own cannabis. It
even deputized him as an "officer of the city" in an attempt to shield him
from prosecution.

"If I had known that he was told he could grow this by the city, that would
have raised some questions for me," a juror told an AlterNet reporter.
"It's a waste of taxpayer money to bring these cases."

Another said: "The more information we get, the more we realize how
manipulated and controlled the whole situation was...As residents, we voted
to legalize medical marijuana, and now we are forced to sit here and not
take any of this into consideration?"

For those who believe the sole legitimate role of a jury is to determine
the facts, the answer is plain: Yes, the jurors had an obligation to put
aside their personal views about medical marijuana and apply the law as it
was explained to them. But for those who believe jurors ought to judge the
law as well as the facts, it's clear they had a duty to acquit if they
decided the law, or its application in this particular case, was unjust,
unconstitutional, or both.

Many people, especially conservatives, are troubled by the idea of jury
nullification, with its apparent invitation to apply vague, unwritten
standards. But the Rosenthal case shows how this power, which has a
venerable history in Anglo-American law, can help combat a far more
dangerous kind of lawlessness.

Whatever one thinks of marijuana's merits as a medicine, the Constitution
simply does not give the federal government the authority to override a
state's judgment on this issue. As Rosenthal's attorneys pointed out in a
pre-trial brief, "the class of activity involved is entirely local and does
not affect, much less substantially affect, interstate commerce."

Although this is the strongest legal argument in Rosenthal's favor, in a
sense it proves too much, calling into question not just the war on drugs
but much of what the federal government has been doing since the New Deal.
Hence it's unlikely that an appeals court will take this opportunity to
affirm that there are limits to the federal government's powers under the
Commerce Clause, despite the Supreme Court's recent moves in that direction.

That leaves the task of defending the Constitution to juries. "I think jury
nullification is going to be part of the answer regarding states' rights in
future cases," Sackett, the jury foreman, told AlterNet.

It seems Sackett first learned about jury nullification only after the
trial. Ignorance of their own power may be the crucial way in which he and
the other jurors were kept in the dark.