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Juries and Judges


Edward Rosenthal was prosecuted for growing and distributing medical marijuana in compliance with the California Compassionate Use Act. At his Federal trial, District Court Judge Charles Breyer refused to let the jury learn that Rosenthal was growing marijuana for medical use. Breyer ruled evidence concerning medical marijuana was irrelevant, because federal law does not recognize medical uses for marijuana. Implicit in the ruling was a concern that evidence about medical marijuana would lead to jury nullification. As nearly eighty percent of San Franciscans voted for passage of Prop. 215, it was unlikely a San Francisco jury would willingly convict one of their neighbors for helping to implement State law.

Most legal commentators agree that Breyer made the correct legal decision. This judgment is based on traditional notions of legal relevance: if evidence does not make any element of the crime (in this case, knowingly growing marijuana) more or less likely, the evidence is irrelevant. Under this theory, evidence that serves no other purpose than to undermine the moral underpinnings of the law is inadmissible. Such evidence only encourages jury nullification of applicable law and unfairly hurts the Government’s case.

Many of Breyer’s brethren find this notion of relevance overly confining. Judge Jack Weinstein has noted that “courts cannot and should not try to prevent, by restricting evidence unduly or by leaning on jurors, a certain degree of freedom of the jurors to come in with verdicts which may not reflect, in an abstract way, what the facts and the law are.” Similarly, Judge Kenneth Hoyt has written that, as “part of the deliberative process is to determine the moral ‘rightness’ of the result reached,” “the justice system must be flexible enough to permit acts of mercy by a jury where the facts dictate morally and ethically that mercy is appropriate.”

This expanded concept of relevance has struck a sympathetic chord with nothing less than the United States Supreme Court – but to date, only when it helps the Government. In Old Chief v. United States, the Court held that Government evidence in a criminal case has “fair and legitimate weight” if it “convince[s] the jurors that a guilty verdict would be morally reasonable.” This is because “what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment.”

It seems grossly unfair to allow the Government to present evidence implicating the moral underpinnings of the law – and deny Ed Rosenthal a reciprocal right. If, as the Court holds, evidence which shows a conviction is morally reasonable is relevant, then evidence that a conviction is morally unreasonable is relevant. Are the scales of justice so unbalanced that the only relevant moral concerns are those that assist the Government?

Certainly, not all judges think so. While Judge Breyer operated within his discretion, such lopsided rulings allow for mechanical, unjust and tyrannical application of federal law. If Rosenthal was selling joints to schoolkids, Breyer would have let the jury know. Evidence that Rosenthal was causing no harm, and in the eyes of his community was accomplishing significant good, should have been considered by the jury. Such evidence may have inspired the jury to nullify the law – but, as Judge Weinstein noted, jury nullification is one of the legitimate outcomes of a criminal trial as anticipated by our Founding Fathers.

Jury nullification occurs when a criminal trial jury decides not to enforce a law because they believe it would be unjust or misguided to convict. This allows average citizens, in deliberative bodies, to limit the scope of the criminal sanction, so that acts not broadly condemned are not widely punished. History shows juries have taken this enormous power very seriously, and have used it responsibly.

Rosenthal’s jurors agree. Jury foreman Charles Sackett has said the jury probably would have nullified the law and acquitted, had they known this was a medical marijuana case. Half the jury appeared on NBC’s Dateline, decrying having been kept in the dark and manipulated into returning a verdict which does not reflect their conscientious judgment. Eight of his jurors apologized to Rosenthal, and petitioned Judge Breyer to grant a new trial.

This sort of thing is just not supposed to happen. If being a juror means anything, it should mean never having to say you’re sorry. If the law is just and justly applied, jurors have no reason to apologize to those they convict or to feel they have been used by their Government to commit injustice. Our jurors should hear and be empowered to act upon evidence which implicates the “moral underpinnings” of the law, regardless of which side benefits.

Clay Conrad is the author of “Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press, 1998),” He is the Chairman of the Fully Informed Jury Association and a member of the National Association of Criminal Defense Lawyers. He can be reached at


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