POT JURY REBELLION

Marney Craig and 11 other jurors convicted a California man on federal
drug charges this week. But Craig says the feds deceived her -- and
she's furious.

If you've ever served on a jury, you know the drill. When the parties
are done presenting their evidence, the judge instructs you on your
job as a juror. "It is your duty to find the facts from all the
evidence in the case," the judge will say. "To those facts, you will
apply the law as I give it to you. You must follow the law as I give
it to you whether you agree with it or not."

Marney Craig listened to words like those in a federal courtroom in
San Francisco last week, then walked into the jury room to begin
considering the fate of a defendant named Ed Rosenthal.

A few hours later, Craig and her follow jurors voted to convict
Rosenthal on three federal drug charges. And about five minutes after
that, Craig discovered that she had made a horrible mistake: She
hadn't been given all the facts about Rosenthal, and she didn't have
to convict him.

Rosenthal, it turns out, wasn't the garden-variety marijuana grower
that federal prosecutors had made him out to be. In 1996, California
voters adopted Proposition 215, which allows seriously ill individuals
in need of pain relief to possess and use marijuana with the approval
of a medical doctor. Shortly after the passage of Proposition 215,
several groups formed "medical cannabis dispensaries" to serve as a
source of marijuana for those qualified to receive it. Rosenthal grew
his marijuana for one of these dispensaries; in fact, the City of
Oakland deputized Rosenthal as an official supplier for one of them.

None of this mattered to the Justice Department prosecutors who
indicted Rosenthal. Although candidate George W. Bush proclaimed that
states should be free to make their own decisions about the legality
of medical marijuana, his Justice Department since the election has
taken exactly the opposite approach, aggressively pursuing civil and
criminal actions against individuals and groups associated with the
medical marijuana movement. Californians and voters in seven other
states have legalized medical marijuana, but Washington apparently
knows better. "There is no such thing as medical marijuana," a
spokesperson for the DEA told the Associated Press last week.

The fact that Rosenthal was growing marijuana for medical purposes
would have mattered to Craig and several of the other jurors who
convicted him, but they weren't allowed to hear a word of it. In 2001,
the U.S. Supreme Court held that federal drug laws trumped Proposition
215, and that claims of "medical necessity" provided no defense
against federal drug charges. Bound by that ruling, U.S. District
Judge Charles Breyer prevented Rosenthal's attorneys from presenting
any evidence that Rosenthal had grown marijuana for medical purposes
- - let alone that he had done so with the express approval of the City
of Oakland.

Craig and her fellow jurors learned the truth about Rosenthal minutes
after they returned with their verdict. "A woman came up to us and
told us who Ed was and what he did," Craig told Salon in an interview
this week. "We were sick, absolutely sick."

Although Craig, a 58-year-old property manager from Marin County, says
she has never spoken in public nor taken a public position on any
political issue, she and three of her fellow jurors felt compelled to
do something about what had happened. Earlier this week, they held a
press conference outside the U.S. District Court in San Francisco
where they publicly apologized to Rosenthal and expressed their dismay
with a legal system that deprived them of the truth they believe they
needed before determining Rosenthal's fate. At their press conference,
the jurors were flanked by a number of local government officials --
including San Francisco's district attorney -- all of whom expressed
their support for Rosenthal and his work.

In making their case public, the Rosenthal jurors have drawn national
attention to two issues: the Bush administration's offensive against
state-level decisions on medical marijuana, and the right of a jury to
know -- and to act on -- all the facts of a case.

Throughout the history of the United States, juries have sometimes
ignored the law in favor of what they considered justice. But jury
nullification is a double-edged sword. It's easy to trumpet the
bravery of the American jurors who refused to let British authorities
jail publisher John Peter Zenger in 1735 for criticizing the odious
colonial government of New York, and it's hard to argue with the many
Northern jurors who refused to convict runaway slaves. But what of the
Southern juries who wouldn't convict a white man charged with a crime
against a black man, or the Simi Valley jury that acquitted the cops
who beat Rodney King, or the jury that has allowed O.J. Simpson to
spend his days playing golf rather than doing time?

Judge Breyer, a Clinton appointee and the younger brother of U.S.
Supreme Court Justice Stephen Breyer, didn't take that risk. He kept
the jurors from hearing anything that might lead them to nullify, and
he told them they had no right to do so. According to the San
Francisco Chronicle, when Rosenthal's lawyer urged the jurors to use
their "common-sense justice," Breyer cut him off and said: "You cannot
substitute your sense of justice, whatever that is, for your duty to
follow the law."

Now that she is outside of Breyer's courtroom, Craig feels another
duty: to "right the wrong" that has been done to Ed Rosenthal. It's
not at all clear that she will succeed. Rosenthal's conviction carries
a mandatory five-year minimum prison sentence, and there may be no way
for Judge Breyer to sentence him to anything less. And while Rosenthal
plans to appeal, the Supreme Court's 2001 decision leaves little room
for even a sympathetic court to rule in his favor. For now, all Craig
can do is spread the word about what happened to her -- and what
happened to Ed Rosenthal.

Craig talked with Salon by telephone from her home in Novato,
Calif.

When You Walked into the Jury Room to Begin Deliberations, What Did
You Know About Ed Rosenthal and Why He Had Been Growing Marijuana?

Actually, I don't think we knew anything. During the jury-selection
process, we were asked if we had strong views on medical marijuana or
on Proposition 215. We were told it was OK to have strong views so
long as we thought we could be fair and impartial. That was kind of a
tip-off. But the judge continually admonished and instructed us that
this was a federal court, that we were bound by the federal law, that
we could only consider evidence that was presented in the courtroom,
and -- over and over again -- that the reason for growing the
marijuana was irrelevant. So, you know, we just bought into the whole
thing: "We can't consider that he was growing medical marijuana, and
we can't consider that we live in California and voted for Prop. 215
and support medical marijuana." That was not relevant.

So the Jurors Had Some Sense That the Case Was About Medical
Marijuana?

We didn't know that's what it was really about, but we knew that it
was an issue.

If You, As Jurors, Had Some Sense the Case Was About Medical
Marijuana, Why Didn't You Just Vote to Acquit?

Unfortunately, none of us knew who Ed Rosenthal was or what he was
doing. The key piece of information that we did not know and that was
never mentioned anywhere was that he was employed by the City of
Oakland and deputized by the City of Oakland to grow medical
marijuana. He was operating under the auspices of the law as an
associate of the city. That alone probably would have brought in a
different verdict. But that, along with all the other information
related to medical marijuana, was never entered into evidence. We were
told we couldn't consider any of that.

Did You Think That You Were Permitted to Acquit Under These
Circumstances?

We didn't know what we could do under the law because the judge's
instructions were very narrow. He said we had to judge this case by
federal law only, that federal law takes precedence over California
law, that this is a federal courtroom, and that we could only consider
evidence that was presented in the trial. We felt we were strictly
bound by those guidelines. The judge could have given us other
instructions and informed us of our right of juror nullification, but
he didn't. We didn't know that we had a right to do anything else
other than follow his instructions and follow the letter of the law
and convict this man who was presented to us as a major grower. For
example, we didn't know that all of his marijuana was for medical
purposes. There was no way for us to know that. And even if we might
have suspected that, we were so intimidated by the process and by the
hostility -- the outright hostility -- of the judge toward the
defense. We watched him be so hostile to them, and the prosecutor
being so hostile, and here we are 12 people sitting there thinking --
I don't know how many of them thought it, but I did -- "Wow, what's
the judge going to do to me if I do something I'm not supposed to do?"

Did Any of That Hostility Suggest to You, "Boy, This Defendant Must Be
a Really Bad Guy?"

I knew that they were trying to portray him as a really bad guy. But
if you look at him, you can see that he is not. He's the same age I
am, and he seems like a really nice guy, and I thought, "What's going
on here?" You know, it's so amazing to me that we could have done
this. We're all sitting in the deliberation room, and not a single one
of us ever felt free to even broach the subject of, "Guys, what are we
doing here? Why are we doing this? Does everybody feel OK with this?"
And we were all having our doubts, and we were just like sheep. It
still amazes me that we did that.

Who Is to Blame Here? You've Obviously Got a Lot of Hostility Toward
the Judge, but Congress Adopted This Law, and the Justice Department
Chose to Prosecute This Case.

I'm angry at the system. I'm angry at all of them. The judge was
obviously operating within his legal parameters, but he chose the
strictest interpretation, and he chose to be fairly dictatorial, and
he chose to make it as difficult as possible for the defense to
present their evidence and their witnesses. That was obviously his
choice, so he has taken an obvious stand. The prosecuting attorney was
equally responsible. The feds obviously went after Rosenthal. They
were out to get him because of who he was. And that occurred to me in
deliberations. I thought, "Why Ed Rosenthal? Why this guy? There's got
to be something else going on here."

But Didn't That Cut Both Ways in Your Mind? the Justice Department's
Interest in Rosenthal Might Make You Think That It Had Some Ulterior
Motive in Going After Him, or It Might Just Make You Think That The
Justice Department Considered Rosenthal a Serious Criminal.

Yeah, but the one thing the defense managed to get out is that he had
written two books. [Both were how-to books on marijuana.] Alarms went
off in my head when I heard that. I thought, "Wait a minute, this guy
has written books? OK, who is he?" I'm sitting there in the trial
thinking, "Who is this guy?" And there was no way for us to find out.
We weren't reading newspapers or watching TV or listening to the radio
because the judge told us not to.

When Did You First Figure Out the Truth About Rosenthal?

About five minutes after we walked out of the courtroom. I was
devastated. I just could not believe it. Three of us carpooled back up
north together, and we could hardly talk. And then I got home and told
my husband and my brother and another friend who was around, and their
reaction just astounded me. My husband was so upset he left the house
and didn't come back for hours. He couldn't even talk to me. He now
understands what happened. But I was so upset. I was sitting here
thinking, "How did I ever get involved in something like this? How
could I, me, who I am, have done what I did to Ed Rosenthal and to his
family and to all of the medical marijuana patients?" I was sick.

So You Feel Some Personal Responsibility for This?

I do.

But at the Same Time, You Feel That You Were Constrained From Doing
Anything About It.

We were. We were constrained. And honestly, I was fearful about taking
a stand and trying to stick with it unless I could get some support
from some of the other jurors, and those of us who made attempts
didn't get a lot of support because it was obvious we were committed
to following the law. I didn't know what would happen to me if I didn't.

What Did You Think Might Happen to You?

You know, I had no idea. I didn't know if I would be prosecuted myself
somehow. We're so ignorant of the law, and so ignorant of normal
courtroom procedure, and so ignorant of jurors' rights in particular,
that we had no idea. I didn't know I could sit there and say, "I can't
do this. I'm not going to convict this man."

Have You Spoken With Rosenthal Since You Handed Down Your
Verdict?

We actually ran into him in the elevator on the way up to the [bail]
hearing. The door opened, and we stepped in and there he was with his
family. I hugged him and I told him I was sorry. I was crying. He was
with his wife and daughter, and the three of them couldn't have been
nicer to us. I was standing there in tears, and they said, "Don't
apologize. It wasn't your fault. We know what happened."

And Did You Speak Directly With Rosenthal?

I did have an opportunity to speak with him, yeah. He's taking such a
positive attitude toward this. He said, "Whether or not I go to
prison, this has become a much larger issue because of what you're
doing, and we will be able to accomplish much more because of the
outcome of the trial and the fact that all of you have come forward."
And that's how he is looking at it. He's not looking at his years in
prison. He's looking at what we can do now with the platform that we
have.

And What Did You Tell Him?

I told him that he's an amazing man, that I'm sorry I didn't know who
he was before, and that I'm committed to trying to help him get a new
trial. I don't know if I have any clout in that at all. Obviously, I
have no legal standing at all. But he knows that I'm willing to do any
public speaking or talk to as many people as I can to try to get the
word out and to make people understand. There are major issues here.
We're dealing with medical marijuana here, we're dealing with states'
rights, we're dealing with jurors' rights, and we're dealing with Ed
Rosenthal needing a fair trial. The whole system is so flawed.