IN THE DARK: MEDI-POT JURIES KEPT UNINFORMED

Can't Seek Out the Course of Justice

Marney Craig is a middle-class white woman with a good job, fine
family and clear sense of right and wrong. It was not surprising that
she wound up on a jury in February judging Ed Rosenthal, a marijuana
producer on trial in San Francisco federal court for growing over one
thousand plants. She and her fellow jurors noticed from the outset
that something was strange about this trial. Almost all of the defense
witnesses were barred from testifying. The judge himself took over
cross-examination of one of the two defense witnesses. And certain
words seemed taboo - AIDS, medicine, physician.

Judge Charles Breyer's final words clearly defined Craig's obligation
to the court: "You cannot substitute your sense of justice for your
duty to follow the law." Despite her uneasiness, after a brief
deliberation, she and her colleagues found Rosenthal guilty of growing
hundreds of marijuana plants. The evidence was beyond any reasonable
doubt. The defendant clearly was manufacturing marijuana on an
industrial scale.

But the minute the jurors stepped out of Breyer's courtroom, they were
hit with what they really had done. The defendant was not the
cold-hearted drug kingpin portrayed by federal prosecutors. In fact,
he was a hero to thousands of seriously ill Californians who were
depending on him for relief. Outside the courtroom, Craig discovered
that Rosenthal was an official agent of the city of Oakland - growing
marijuana for the ill.

Can you have a fair trial with an uninformed jury?

Federal medical marijuana prosecutions are undermining the bedrock
principle of trial by jury. The independent juror is rooted firmly in
the Sixth Amendment to the Constitution and the right to a trial by a
jury of one's peers.

An independent jury has been a check against unjust laws - a community
conscience - throughout U.S. history. Juries refused to convict
William Penn in 1670 for unlawful assembly, newspaper reporters under
the Alien and Sedition Act, African-Americans for violation of the
Fugitive Slave Act, alcohol distributors during Prohibition and draft
resisters during Vietnam. John Adams, a founder and the second
president, said: "[I]t 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 court."

In federal medical marijuana prosecutions, judges go to extreme
lengths to prevent jurors from knowing what the case is really about -
federal government efforts to undermine California's medical marijuana
law. Undermining the law begins before the trial, when the judge rules
that evidence related to medical marijuana is irrelevant. Jurors who
support medical marijuana are excluded from the jury. When questioning
results in medical information being elicited, the judge stops the
testimony and takes over.

These steps leave Good Samaritans who are trying to provide medicine
to the seriously ill with no defense - they admit that they were
growing marijuana, but can't tell the jury why. Prosecutors paint them
as major marijuana traffickers.

After the Rosenthal verdict, five jurors held a press conference
(three others agreed, but could not attend) to say that they
participated in an injustice. They felt used - "manipulated,
intimidated, controlled" - because they found guilt without being
given relevant evidence. Craig wrote: "The verdict we reached - the
only verdict those instructions allowed us to reach - was wrong. It
was cruel, inhumane and unjust." The decision, she said, will "haunt
her for the rest of her life." Craig described federal prosecutions as
a "charade ... where jurors are forced to choose between justice and
the law."

In another federal medical marijuana case in Sacramento, Judge Frank
Damrell went further than Breyer. When demonstrators were outside the
courthouse handing out jury independence literature, he stopped jury
selection, prosecuted one demonstrator and, during the trial, had the
jury bussed in through the courthouse garage to avoid them seeing the
demonstrators. The result: Bryan Epis was convicted. Epis could not
tell the jury about the serious automobile injury for which his doctor
recommended medical marijuana. Nor could he describe the importance of
his medicine to the patients for whom he was a provider - several of
who have died since his incarceration. Epis received 10 years - a
mandatory sentence designed for drug kingpins. His daughter Ashley's
photograph now is appearing on billboards in California, proclaiming:
"My Dad is not a Criminal." See www.medicalMJ.org

Do democratic votes of Californians mean anything?

In 1996, California voted for medical marijuana. Since then, six other
states and Washington, D.C., have voted for it - often in landslides.
Hawaii instituted medical marijuana legislation last year. A recent
Time Magazine poll showed that 80 percent of Americans support medical
marijuana. As one juror in the Rosenthal case said: "As residents, we
voted to legalize medical marijuana, and now we are forced to sit here
and not take any of this into consideration?"

San Francisco District Attorney Terence Hallinan agreed: "Ed did not
violate the laws of California," and the Feds had "no excuse to
trample over the rights of Californians." A patient outside the
courthouse echoed Hallinan, shouting: "We have state's rights you
can't lock all of us up."

When he was running for president, George W. Bush said that medical
marijuana should be left to the states. But Attorney General John
Ashcroft has aggressively enforced federal marijuana laws against
providers of medicine. There have been over 30 federal enforcement
actions in California and over 20 defendants are awaiting charges.
Bearing the brunt of this enforcement effort are 30,000 medical
marijuana patients in California. These patients thought that they
were protected when their neighbors voted for medical marijuana, but
now they are targets of the most powerful government on earth.

Many California leaders are uniting against the Feds. Last week,
Assemblyman Mark Leno and State Sen. Don Perata released a letter that
they signed, along with 48 of their colleagues, urging the California
Congressional Delegation to secure states' rights, allow a medical
necessity defense and cut funding of federal departments that
prosecute California's medical patients or providers. They also have
introduced a resolution for the state Legislature to consider.

In Congress, Reps. Sam Farr, Lynn Woolsey and Dana Rohrabacher
introduced a bill to allow a medical marijuana defense. And in the
last legislative session, many in the California Congressional
delegation were among the 50 co-sponsors of Rep. Barney Frank's bill
to allow medical use of marijuana.

But some important elected officials are missing. California's two
senators have taken no action to protect their constituents. While
this can be expected from Sen. Dianne Feinstein, who has consistently
opposed medical marijuana, more should be expected from Sen. Barbara
Boxer. Boxer may find herself a victim of the federal medical
marijuana onslaught. Outrage is growing among her constituents as
federal prosecutions escalate. If she remains silent, people who
support medical marijuana may vote Green or Libertarian, or even stay
home. Even the loss of a few percentage points could make her a
medical marijuana victim. She has nothing to lose by supporting
medical marijuana - because it is a widely popular - but could lose
everything by remaining silent.

Local governments also can take action. San Francisco should follow
the will of its voters, who voted for the city to grow its own medical
marijuana. Cities need to continue to make providers of medical
marijuana into agents of the government. And, if these people are
prosecuted, stand with them in court - intervene in federal
prosecutions to uphold the state's laws.

The surest way to stop federal prosecutions is the through consciences
of jurors. Federal enforcement puts immense power in the hands of
single jurors. One juror can stop a conviction. When jurors exercise
their independence, the federal government will rethink prosecutions.
Jurors will have on their side not only compassion and justice, but
also the vast majority of Americans. Jurors who don't may feel like
Marney Craig, who said that following instructions was no excuse for
not acting on her conscience. "Anyone who said I was just following
orders ... the Europeans turning away when the Jews were taken away by
the Nazis. We are no better than that if we can't take a stand for
what we believe in," she said.

Throughout U.S. history, unjust verdicts have led to dramatic change.
Indeed, the birth of the United States was sparked by a verdict in
Paxton's Case allowing warrantless searches by the king's soldiers of
colonial homes and businesses. John Adams, who was a young court
reporter at the time of the verdict wrote, "Then and there, the child
Independence was borne." The Rosenthal verdict may unite Californians
against the federal onslaught. If so, the Feds will regret picking the
battle of California.