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Government has a boundless appetite to inflict senseless pain on Americans, in the guise of the war on drugs, even at the cost of degrading Federalism and the needs and values of the American people. A recent case demonstrates this arrogance handily. Ed Rosenthal was a medical marijuana supplier who, in compliance with the California Compassionate Use Act, had been growing marijuana for seriously ill people under a doctor’s advice and care. Rosenthal was arrested in February, 2002 and accused of supplying marijuana to the Harm Reduction Center in San Francisco. Rosenthal had been deputized by the city of Oakland, California and made the official supplier of a city-sponsored medical marijuana dispensary.
The Compassionate Use Act passed with 78 percent of the vote in San Francisco. It took a total of eighty jurors to find twelve willing to convict Rosenthal. Most of those summoned for jury duty said they would not be willing to brand someone a felon for growing or distributing medical marijuana. Even after eliminating those who would not convict in a medical marijuana case, Judge Charles Breyer did his best to keep any mention of medical use from entering the case. The jury was given no information as to why Rosenthal was growing marijuana. Rosenthal was disingenuously portrayed not as a conscientious caregiver, but as a large-scale drug dealer.
The evidence that Rosenthal was growing marijuana was indisputable, although there were questions concerning quantities. The Government charged him with growing over 1,000 plants–an offense potentially carrying a life sentence. In the end, the jury found Rosenthal guilty of growing between 100 and 1000 plants. He now faces a maximum sentence of “only” 40 years ” without parole. To Rosenthal, aged 58 and with a twelve year old daughter, the reduced sentencing range is a distinction without a difference.
In response to the verdict, Drug Enforcement Administration spokesmen Richard Meyer was ecstatic. “We feel the people of California have spoken. We’re pleased with the verdict.” Unfortunately, the only people that spoke were those allowed to speak–and 85 percent of the people had been eliminated from the jury.
Even these hand-picked jurors were unhappy with the outcome. Several, including jury foreman Charles Sackett, apologized to Rosenthal and expressed shock and outrage after learning Judge Breyer blocked them from hearing Rosenthal’s side of the story. At least half the jury expressed remorse and denounced their verdict. Several jurors held a press conference February 4, 2003, complaining of being misled, manipulated and bullied into convicting in a case that none of them would have voted “guilty” in, had they known the full story. The conscience of the community has been stifled.
Sackett has said it is probable that the jury would have nullified the law and acquitted, had they known this was a medical marijuana case and had they understood the independent role of American juries. “I think jury nullification is going to be part of the answer regarding states’ rights in future cases,” said Sackett. Several of Rosenthal’s jurors felt intimidated into going along with the verdict, because they erroneously believed that had they engaged in jury nullification they could have been punished or removed from the jury. Matt Gonzalez, president of the San Francisco Board of Supervisors, has commented that juries should know of their ability to refuse to enforce federal laws, when application of those laws would be unjust.
“The judge is not giving the jury any space, whatsoever, to engage in what has been an extremely long tradition in common law as it relates to jury nullification.”
San Francisco Public Defender Jeff Adachi noted that “jury nullification is a constitutional right that every individual person who is called for jury duty possesses, and unless we appreciate that right, we will lose it because the courts will take it from us.” It appears that the Rosenthal jury failed to appreciate their nullification prerogative–and as a result, have inflicted enormous and undeserved pain on Edward Rosenthal and his family.
Mr. Meyer is partially right: the people of California have spoken. They spoke in passing Proposition 215, allowing for the compassionate use of marijuana by medical patients, under a doctor’s supervision. Under our Federalist system of Government, it would appear that the voice of the people of California should be heeded. Edward Rosenthal is simply a pawn, having been caught in the crossfire between the D.E.A.’s insatiable desire to inflict pain on those who use or grow marijuana, regardless of the reasons, and the compassionate tolerance of Californians.
Doing Your Best as a Trial Juror: Surviving Voir Dire
There should be no happier day in the life of a marijuana activist than the day he opens his mail and finds a summons for jury duty. While he may not be called to serve on a marijuana case, or even a drug case, the number of such cases clogging our courts make it very likely. The opportunity to serve on a jury is an important attribute of citizenship, and should not be wasted. It is the job of juries to ensure our courts dispense justice–and justice is what good activism is all about.
What’s a Juror to Do?
How can jurors dispense justice, when the law they are instructed to apply is unjust? The answer is simple: by voting their conscience. In every criminal case jurors have a prerogative to acquit, whatever the evidence. And when they do acquit, the Government cannot retry the Accused, or appeal the conviction. The case is over–the Accused has been vindicated by a jury of his peers. When a jury acquits because the law is unconscionable, it is called jury nullification of the law–or, in short, jury nullification.
Jury nullification occurs in 3-4% of all criminal trials. Jurors cannot be ordered to convict or punished for acquitting. A jury verdict of Not Guilty is final.
An Abbreviated History of Jury Nullification
Jury independence is well established in American law. In 1804, Supreme Court Justice Samuel Chase was impeached for denying a jury’s right to judge law. He holds the dubious distinction of being the only Supreme Court ever impeached. Why did the Founders give juries such awesome power? Theophilus Parsons, first Chief Justice of Massachusetts, explained:
The people themselves have it in their power to resist usurpation, without an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.
Or, as Patrick Henry put it:
Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off. This gives me comfort ” that as long as I have existence, my neighbors will protect me.
American history is full of proud examples of jury nullification. The common-law tradition of freedom of religion and of assembly has its origins in the 1670 trial of William Penn, accused of preaching an illegal religion in Gracechurch Street, London. The jury refused to convict Penn in spite of clear evidence of guilt, because they were unwilling to brand a man a felon for worshiping God according to his own beliefs. When the court attempted to punish Penn’s jury for their act of nullification, a higher court reversed on the principle that it is only the jury, not the judge, which has the authority to decide whether a defendant is guilty. The American tradition of freedom of the press began in 1735, when a New York jury acquitted John Peter Zenger of seditious libel for publishing criticisms of the royally appointed Governor of New York. Even though 18th Century law didn’t recognize truth as a defense to seditious libel (the rule was the greater the truth, the greater the libel), Zenger’s jury acquitted because Mr. Zenger’s words were true.
But jury nullification of the law is not just a remnant of Colonial days, when Americans were still proud, independent and free. During the nineteenth century, juries as far South as Georgia refused to convict whites who assisted slaves escaping from bondage. (Escaped slaves were not entitled to trial by jury. A judge deciding whether to return an escaped slave to bondage was paid twice as much for finding the accused was a slave than for finding he was free.) The inability of the South to see the Fugitive Slave Act enforced led to the Civil War and thus the end of chattel slavery. As many as sixty percent of alcohol prohibition cases ended in acquittal, leading to the repeal of Prohibition. (Remember that under alcohol prohibition, possession and use of alcohol was legal–only sales, distribution and manufacturing were banned.)
A Little Subversion
The conventional wisdom is that jury nullification is subversive. Is that not the Great American Paradox–that our best citizens are our greatest
subversives? A good American is by nature an inquisitive soul unwilling and temperamentally unable to kowtow to malevolent authority–in short, an old-fashioned boat-rocker. The Rev. Martin Luther King was investigated by the FBI. As, I am sure, have more than a few CounterPunch readers (and editors)(and contributors), (and illustrators), (hell, maybe even a stray receptionist or two).
Sometimes a bit of subversion is needed to rescue government from itself. The second part of the credo “my country, right or wrong,” is “when right, to stand by her. When wrong, to set her right again.” Setting government right again is what jury nullification is all about. Bureaucrats may whine about subversion, but jury nullification, in the end, is the democratic response of deliberating citizens to laws that are not popularly supported, in a nation where we, the people, not government, are the source of sovereign power.
Judges refuse to tell jurors about their option to veto unjust or misapplied laws, and may even dismiss potential jurors who let the Court know they are aware of this power. That is why potential jurors must know their power
prior to going to court. Most people who receive a jury summons do not show up for jury duty, or try to get excused. If those who know about the power of the jury and who care about justice are willing to serve, their influence is magnified many times over.
Surviving Jury Selection
In order to nullify the law, you need to survive jury selection (or “voir dire’), and be seated on the jury. When you appear for jury duty, you are a “venire-member.” The venire is the group (or “panel’) of citizens from which a jury is chosen. The jury is chosen by removing members of the venire.
After both sides have removed the venire-members they object to, the first twelve (or six, or eight, depending on the case and the state) venire-members remaining are sworn in as the jury.
Venire-members can be removed in two ways: they can be stricken “for cause,” or through use of a peremptory strike. Both sides can remove as many venire-members “for cause” as they can find lawful reasons to strike. A “for cause” strike is based on a venire-member being legally ineligible to serve, because, for example, he or she has a felony record, is not a citizen, is insane, or, most importantly, has indicated that they are unable or unwilling to apply the law.
Peremptory strikes can be used by either side for any reason other than race or gender. Depending on the case and the jurisdiction, each side may have three to fifteen peremptory strikes (even more in death penalty cases.) Generally, parties strike venire-members they believe are unlikely to vote for their side. The prosecutor and the defense attorney get to question venire-members about their attitudes, opinions and behaviors in order to “intelligently” exercise peremptory challenges.
What this means is that if you show up for jury duty and proudly announce “marijuana should be legal, prohibition is immoral and unconstitutional and I would never vote to convict anyone in a weed case,” you will immediately be removed by the prosecutor “for cause,” and you will have absolutely no impact on the outcome of the case. Similarly, if you say “police do not arrest innocent people,” the defense will strike you. You must appear neutral and fair to both sides to be seated–if you appear to lean too far either way, the other side will strike you off the jury.
Thus, to survive jury selection, you want to appear neutral. However, you may not lie during voir dire. Lying can constitute perjury or obstruction of justice–felony offenses. The clue to survival is to give neutral but truthful answers. This can take some care and serious thought, depending on the exact questions you are asked. However, there are some general rules. One of them is that you should never elaborate on your answers to voir dire questions, or volunteer answers to questions that have not been asked. A typical question is to ask venire-members what organizations they are members of. In anticipation of this question, you may consider resigning from NORML, FIJA and similar organizations when you get your jury summons. (You can always rejoin later.)
Other typical questions, and appropriate unobjectionable neutral answers, include: What magazines and newspapers do you subscribe to or read regularly? (Time to cancel some subscriptions–at least temporarily! And time to start reading Popular Mechanics, PC World, Money and People. Don’t mention U.S. News & World Report or The Economist. People interested in world events tend to be opinionated independent thinkers. You want to appear a neutral, law abiding middle of the road taxpayer.)
Do you know anyone with a drug problem? (Yes, but not well. This is usually true because such people never allow anyone to know them well. Of course, if your spouse, parent or child is in rehab, it’s time to fess up.)
How do you feel about people accused of selling or possessing drugs? (They deserve fair trials, like anyone accused of a crime.)
Do you know anyone who has been accused of selling drugs? (If so, the answer may be “yes, but not well.” If they ask for an example, they will stop after one, so there must be someone you knew distantly who was accused of selling drugs. If you know someone who was acquitted on drug charges, say so–it lets the venire know false accusations happen. Answer in short, to the point sentences, and do not digress, volunteer or elaborate.)
How do you feel about the government’s use of paid informants or informants who are receiving reduced sentences in return for their testimony? (Their testimony has to be examined carefully, but fairly.)
Do you have such strong feelings about drug cases that you would be unable to be a fair and impartial juror? (Of course not! What you want is a fair and just outcome.)
If asked whether you are opposed to drug laws, you can truthfully say you have questions about how effective drug laws are. (Who doesn’t? Even Gen. McCaffrey has had such questions.) If asked if you are able to put your
opinions aside and vote guilty, you can always say yes. (You are also able to shove your arm down a kitchen garbage disposal. That does not mean you are committed to doing so.) Take the questions literally, and answer as briefly and generally as you truthfully can.
Appearing for Jury Duty
Come into court looking like a respectable, law abiding middle-class America n. Think of a perfectly acceptable computer technician visiting a DEA office. Wear clean, business casual clothes. Cover any tattoos and remove superfluous jewelry or piercings. Carry some work related reading material such as a technical manual, a trite apolitical (not classic) novel, or a non-issue magazine such as People or US (not CounterPunch)
Don’t act like you are excited to be there. Nobody is happy to receive a jury summons unless they are either 1) retired and bored to death, 2) insane, or 3) have an “agenda.” If you are insane, you are not qualified to serve. You probably can’t fake being of retirement age. Any excitement will be seen as an “agenda.” Act bored and a smidgeon annoyed that you must waste your time on a case you could not care less about.
Get a haircut. Do not argue that getting your dreadlocks cut infringes on your personal expression. (The author of this article used to be able to sit on his hair, too.) Getting a haircut may give you a chance to express yourself in the jury room where it counts. Hair grows back. A term in prison leaves permanent scars. Let us hope nobody reading this is so vain that their hairstyle is more important to them than the freedom of one of their brothers or sisters.
When All Else Fails
Jury selection is not the time for speeches. Generally, the less you say, the more likely you are to get on the jury. The only time to proselytize during voir dire is when you know you will not be on the jury (the prosecutor has recognized you from a drug law debate or demo, or he asks a question you just cannot answer truthfully without giving your position away.) Then speak quickly, in calm, rational sound bites. “I could not convict a young man for a harmless act. It would ruin the rest of his life. That’s immoral.” Then sit down and be quiet. Make the prosecutor or defense attorney follow up by asking you more questions. Don’t rant. If they ask a follow up question, give a similarly short, to-the-point answer. The more polite, respectful and reasonable you are, the more you will influence (and perhaps empower) remaining venire-members.
What you must avoid is having the judge cut you off before your message gets out. You want to appear candid and honest–not like you are trying to send a forbidden message to (or, as courts consider it, “contaminate”) other people on the venire. If the judge blows up after you politely sit down, he risks looking like a tyrant. After all, if citizens cannot speak their mind, why ask them questions? (That would be a fair question to ask a judge who would ridicule or chastise a venire member in front of the rest of the venire.)
In the Jury Room
Once on the jury, do not mention nullification during deliberations unless the “not guilty” votes are in the majority. If the judge believes a juror is nullifying he may remove her, causing a mistrial or allowing the remaining jurors to decide the case. First, however, the judge must question the juror. If the juror has doubts on the facts, she cannot be dismissed. If she justifies her “not guilty” vote by saying “I can’t convict a young man for smoking a joint,” she’s gone. If she says “I think Officer Krupke lied” the judge will return her to deliberations.
The inability to discuss nullification openly encourages hung juries. If you must, hang. Reasonable people may disagree. You have a right to hang–you do not have a right to compromise someone else’s life away. Vote your conscience even if other jurors browbeat you. Your principles are at stake. Principles cannot be compromised–only abandoned. Vote your conscience. Hang with pride.
Just Say No!
I know of a case in which a prosecutor was offering a twenty year sentence as a plea bargain in a methamphetamine case. The defendant rejected the offer and took the case to trial. A marijuana activist was on the jury, and refused to convict. The jury hung 11-1. When the case came back, the prosecutor reduced the charge to a misdemeanor with a four month sentence. The defendant is free today–and with no felony conviction–because one independent American stuck to his principles and followed Nancy Reagan’s sage advice–Just Say No! That is the power of a juror.
American juries have a proud and heroic tradition of standing up to tyranny and saying “no” to oppressive, unjust or misapplied laws. Now, with the horror of the war on marijuana becoming apparent to a broad cross-section of society, we have an opportunity to make prosecution of marijuana laws an exercise in futility. Only when the likelihood of convicting and sentencing harmless pot smokers becomes minimal will our opponents begin to rethink their positions. We know what happens when they begin that process. They join our side.
A jury summons is not just another form letter from a government clerk. It is an invaluable gift from our Founding Fathers, a gift intended to keep our government true not just to the letter of the Constitution, but to its principles. Justice, our forefathers knew, requires eternal vigilance. Vigilance takes more than reading the papers and casting a ballot at election time. It requires that government be subject to continuous oversight by its subjects. Trial by jury was meant to ensure that citizens maintained a peaceful but powerful and effective means to exercise that vigilance–regula ting, monitoring and when necessary, vetoing tyrannical government actions.
Decades of attempts by judges, prosecutors and legislators to weaken trial by jury have limited but not removed the ability of juries to perform their intended task, by keeping jurors ignorant of their nullification prerogative. Jurors, however, still have the same powers they possessed in 1776–if they only know about them. Too many harmless people have suffered at the relentless hands of the drug warriors. Jury service is our best chance to fight back. And once we do, our victory, while slow, will be assured.
CLAY S. CONRAD, author of Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press, 1998) is a shareholder in the law firm of Lamson & Looney, P.C., 11767 Katy Freeway, Ste. 740, Houston, Texas, 77079. He is the Chairman of the Fully Informed Jury Association and can be reached at firstname.lastname@example.org