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The Coalition for Medical Marijuana includes:
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In the Dark

Medi-Pot Juries Kept Uninformed Can't Seek Out the Course of Justice

By Kevin B. Zeese, President, Common Sense for Drug Policy
Originally published in the Los Angeles Daily Journal & San Francisco Daily Journal, March 6, 2003

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 industrial scale.

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 takes over.

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." See

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 California.

copyright © 2003, Coalition for Medical Marijuana
Sponsors Include: American Alliance for Medical Cannabis   --   Americans for Safe Access   --   Angel Wings Patient OutReach, Inc.   --   California NORML   --   CannabisMD   --   Cannabis Action Network   --   Cannabis Consumers Campaign   --   Change The Climate   --   Common Sense for Drug Policy   --   DRCNet   --   Drug Policy Alliance   --   DrugSense   --   Green Aid   --   Human Rights in the Drug War   --   Patients Out of Time   --   Safe Access
Updated: Thursday, 16-Jul-2009 10:04:25 PDT   ~   Accessed: 8825 times
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