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CounterPunch
February
5, 2003
The Feds vs. Ed Rosenthal (Jurors)
A Guide to Being
a Real Juror
by CLAY S. CONRAD
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 weaselaw@aol.com
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