FacebookTwitterGoogle+RedditEmail

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 weaselaw@aol.com

 

More articles by:
April 26, 2018
Robby Sherwin
The Hat
April 25, 2018
Stanley L. Cohen
Selective Outrage
Dan Kovalik
The Empire Turns Its Sights on Nicaragua – Again!
Joseph Essertier
The Abductees of Japan and Korea
Ramzy Baroud
The Ghost of Herut: Einstein on Israel, 70 Years Ago
W. T. Whitney
Imprisoned FARC Leader Faces Extradition: Still No Peace in Colombia
Manuel E. Yepe
Washington’s Attack on Syria Was a Mockery of the World
John White
My Silent Pain for Toronto and the World
Dean Baker
Bad Projections: the Federal Reserve, the IMF and Unemployment
David Schultz
Why Donald Trump Should Not be Allowed to Pardon Michael Cohen, His Friends, or Family Members
Mel Gurtov
Will Abe Shinzo “Make Japan Great Again”?
Binoy Kampmark
Enoch Powell: Blood Speeches and Anniversaries
Frank Scott
Weapons and Walls
April 24, 2018
Carl Boggs
Russia and the War Party
William A. Cohn
Carnage Unleashed: the Pentagon and the AUMF
Nathan Kalman-Lamb
The Racist Culture of Canadian Hockey
María Julia Bertomeu
On Angers, Disgusts and Nauseas
Nick Pemberton
How To Buy A Seat In Congress 101
Ron Jacobs
Resisting the Military-Now More Than Ever
Paul Bentley
A Velvet Revolution Turns Bloody? Ten Dead in Toronto
Sonali Kolhatkar
The Left, Syria and Fake News
Manuel E. Yepe
The Confirmation of Democracy in Cuba
Peter Montgomery
Christian Nationalism: Good for Politicians, Bad for America and the World
Ted Rall
Bad Drones
Jill Richardson
The Latest Attack on Food Stamps
Andrew Stewart
What Kind of Unionism is This?
Ellen Brown
Fox in the Hen House: Why Interest Rates Are Rising
April 23, 2018
Patrick Cockburn
In Middle East Wars It Pays to be Skeptical
Thomas Knapp
Just When You Thought “Russiagate” Couldn’t Get Any Sillier …
Gregory Barrett
The Moral Mask
Robert Hunziker
Chemical Madness!
David Swanson
Senator Tim Kaine’s Brief Run-In With the Law
Dave Lindorff
Starbucks Has a Racism Problem
Uri Avnery
The Great Day
Nyla Ali Khan
Girls Reduced to Being Repositories of Communal and Religious Identities in Kashmir
Ted Rall
Stop Letting Trump Distract You From Your Wants and Needs
Steve Klinger
The Cautionary Tale of Donald J. Trump
Kevin Zeese - Margaret Flowers
Conflict Over the Future of the Planet
Cesar Chelala
Gideon Levy: A Voice of Sanity from Israel
Weekend Edition
April 20, 2018
Friday - Sunday
Paul Street
Ruling Class Operatives Say the Darndest Things: On Devils Known and Not
Conn Hallinan
The Great Game Comes to Syria
Jeffrey St. Clair
Roaming Charges: Mother of War
Andrew Levine
“How Come?” Questions
Doug Noble
A Tale of Two Atrocities: Douma and Gaza
Kenneth Surin
The Blight of Ukania
FacebookTwitterGoogle+RedditEmail