Marney Craig is a middle-class white woman with a good job,
fine family and clear sense of right and wrong. It was not
surprising that she wound up on a jury in February judging Ed
Rosenthal, a marijuana producer on trial in San Francisco
federal court for growing over one thousand plants. She and her
fellow jurors noticed from the outset that something was strange
about this trial. Almost all of the defense witnesses were barred
from testifying. The judge himself took over cross-examination
of one of the two defense witnesses. And certain words seemed
taboo - AIDS, medicine, physician.
Judge Charles Breyer's final words clearly defined Craig's
obligation to the court: "You cannot substitute your
sense of justice for your duty to follow the law." Despite
her uneasiness, after a brief deliberation, she and her
colleagues found Rosenthal guilty of growing hundreds of
marijuana plants. The evidence was beyond any reasonable doubt.
The defendant clearly was manufacturing marijuana on an
But the minute the jurors stepped out of Breyer's courtroom,
they were hit with what they really had done. The defendant was
not the cold-hearted drug kingpin portrayed by federal
prosecutors. In fact, he was a hero to thousands of seriously
ill Californians who were depending on him for relief. Outside
the courtroom, Craig discovered that Rosenthal was an official
agent of the city of Oakland - growing marijuana for the ill.
Can you have a fair trial with an uninformed jury?
Federal medical marijuana prosecutions are undermining the
bedrock principle of trial by jury. The independent juror is
rooted firmly in the Sixth Amendment to the Constitution and the
right to a trial by a jury of one's peers.
An independent jury has been a check against unjust laws - a
community conscience - throughout U.S. history. Juries refused to
convict William Penn in 1670 for unlawful assembly, newspaper
reporters under the Alien and Sedition Act, African-Americans
for violation of the Fugitive Slave Act, alcohol distributors
during Prohibition and draft resisters during Vietnam. John Adams,
a founder and the second president, said: "[I]t is not
only [the juror's] right but his duty to find the verdict
according to his own best understanding, judgment, and conscience,
though in direct opposition to the court."
In federal medical marijuana prosecutions, judges go to extreme
lengths to prevent jurors from knowing what the case is really
about – federal government efforts to undermine California's
medical marijuana law. Undermining the law begins before the
trial, when the judge rules that evidence related to medical
marijuana is irrelevant. Jurors who support medical marijuana are
excluded from the jury. When questioning results in medical
information being elicited, the judge stops the testimony and
These steps leave Good Samaritans who are trying to provide
medicine to the seriously ill with no defense - they admit that
they were growing marijuana, but can't tell the jury why.
Prosecutors paint them as major marijuana traffickers.
After the Rosenthal verdict, five jurors held a press conference
(three others agreed, but could not attend) to say that
they participated in an injustice. They felt used -
"manipulated, intimidated, controlled" – because they
found guilt without being given relevant evidence. Craig
wrote: "The verdict we reached - the only verdict those
instructions allowed us to reach - was wrong. It was cruel,
inhumane and unjust." The decision, she said, will "haunt
her for the rest of her life." Craig described federal
prosecutions as a "charade ... where jurors are forced to
choose between justice and the law."
In another federal medical marijuana case in Sacramento, Judge
Frank Damrell went further than Breyer. When demonstrators were
outside the courthouse handing out jury independence literature,
he stopped jury selection, prosecuted one demonstrator and, during
the trial, had the jury bussed in through the courthouse garage to
avoid them seeing the demonstrators. The result: Bryan
Epis was convicted. Epis could not tell the jury about the
serious automobile injury for which his doctor recommended medical
marijuana. Nor could he describe the importance of his medicine
to the patients for whom he was a provider - several of who
have died since his incarceration. Epis received 10 years - a
mandatory sentence designed for drug kingpins. His daughter
Ashley's photograph now is appearing on billboards in
California, proclaiming: "My Dad is not a Criminal."
Do democratic votes of Californians mean anything?
In 1996, California voted for medical marijuana. Since then,
six other states and Washington, D.C., have voted for it - often in
landslides. Hawaii instituted medical marijuana legislation last
year. A recent Time Magazine poll showed that 80 percent of
Americans support medical marijuana. As one juror in the Rosenthal
case said: "As residents, we voted to legalize
medical marijuana, and now we are forced to sit here and not
take any of this into consideration?"
San Francisco District Attorney Terence Hallinan agreed:
"Ed did not violate the laws of California," and the
Feds had "no excuse to trample over the rights of
Californians." A patient outside the courthouse echoed
Hallinan, shouting: "We have state's rights, you
can't lock all of us up."
When he was running for president, George W. Bush said that
medical marijuana should be left to the states. But Attorney
General John Ashcroft has aggressively enforced federal marijuana
laws against providers of medicine. There have been over 30
federal enforcement actions in California and over 20 defendants
are awaiting charges. Bearing the brunt of this enforcement effort
are 30,000 medical marijuana patients in California. These
patients thought that they were protected when their neighbors
voted for medical marijuana, but now they are targets of the
most powerful government on earth.
Many California leaders are uniting against the Feds. Last week,
Assemblyman Mark Leno and State Sen. Don Perata released a
letter that they signed, along with 48 of their colleagues, urging
the California Congressional Delegation to secure states'
rights, allow a medical necessity defense and cut funding of
federal departments that prosecute California's medical
patients or providers. They also have introduced a resolution
for the state Legislature to consider.
In Congress, Reps. Sam Farr, Lynn Woolsey and Dana Rohrabacher
introduced a bill to allow a medical marijuana defense. And in
the last legislative session, many in the California Congressional
delegation were among the 50 co-sponsors of Rep. Barney Frank's
bill to allow medical use of marijuana.
But some important elected officials are missing. California's
two senators have taken no action to protect their constituents.
While this can be expected from Sen. Dianne Feinstein, who has
consistently opposed medical marijuana, more should be expected
from Sen. Barbara Boxer. Boxer may find herself a victim of the
federal medical marijuana onslaught. Outrage is growing among her
constituents as federal prosecutions escalate. If she remains
silent, people who support medical marijuana may vote Green or
Libertarian, or even stay home. Even the loss of a few percentage
points could make her a medical marijuana victim. She has nothing
to lose by supporting medical marijuana - because it is a widely
popular - but could lose everything by remaining silent.
Local governments also can take action. San Francisco should
follow the will of its voters, who voted for the city to grow
its own medical marijuana. Cities need to continue to make
providers of medical marijuana into agents of the government.
And, if these people are prosecuted, stand with them in court -
intervene in federal prosecutions to uphold the state's laws.
The surest way to stop federal prosecutions is the through
consciences of jurors. Federal enforcement puts immense power
in the hands of single jurors. One juror can stop a conviction.
When jurors exercise their independence, the federal government
will rethink prosecutions. Jurors will have on their side not only
compassion and justice, but also the vast majority of Americans.
Jurors who don't may feel like Marney Craig, who said that
following instructions was no excuse for not acting on her
conscience. "Anyone who said I was just following orders
... the Europeans turning away when the Jews were taken away by the
Nazis. We are no better than that if we can't take a stand
for what we believe in," she said.
Throughout U.S. history, unjust verdicts have led to dramatic
change. Indeed, the birth of the United States was sparked by a
verdict in Paxton's Case allowing warrantless searches by
the king's soldiers of colonial homes and businesses. John
Adams, who was a young court reporter at the time of the verdict
wrote, "Then and there, the child Independence was borne."
The Rosenthal verdict may unite Californians against the federal
onslaught. If so, the Feds will regret picking the battle of