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CounterPunch
February
28, 2003
Juries and Judges
What's "Relevant"?
By CLAY S. CONRAD
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 weaselaw@aol.com
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February 15
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