- When the jurors who last week convicted medical-marijuana
cultivator Ed Rosenthal later expressed disgust with their own ruling,
I actually yelled at my computer: "Well then why didn't you take Nancy
Reagan's advice and just say no?"
-
- The trial was a joke from the start. Because Rosenthal
was being tried under federal law, not California's, the judge forbade
any discussion of the Golden State's medical marijuana statute or the fact
that Rosenthal was growing the pot with the special sanction of the city
of Oakland. As a result, the jury was not allowed to consider any such
information.
-
- With no possible defense left, Rosenthal's attorney,
Robert Eye, made what the Sacramento Bee called "a thinly veiled plea
for jury nullification."
-
- "Please do justice," he said. "We don't
ask you to check your common sense of justice at the door when you judge
this case. I can only hope there are those of you whose sense of justice
"
-
- Jumping on Eye, the judge interrupted and told the jury,
"It's not your determination whether a law is just or unjust. That
can't be your task." Going further, according to jurywoman Marney
Craig, the judge instructed, "You cannot substitute your sense of
justice for your duty to follow the law."
-
- The judge is wrong.
-
- "If the jury feels the law is unjust," according
to the Fourth Circuit in the 1969 case U.S. v. Moylan, "we recognize
the undisputed power of the jury to acquit, even if its verdict is contrary
to the law as given by a judge, and contrary to the evidence. If the jury
feels that the law under which the defendant is accused is unjust the
jury has the power to acquit " (emphasis added).
-
- Some buck at the notion of jury nullification. They see
it as going against the rule of law - a dozen anarchists passing judgment
on a whim. Endowed with such power and the guilty will walk free because
a chili onion supreme didn't sit well in the stomach of the jury foreman.
-
- Perhaps - but the founders didn't see it that way.
-
- "I consider trial by jury as the only anchor ever
yet imagined by man, by which a government can be held to the principles
of its constitution," said Thomas Jefferson in a 1789 letter to Thomas
Paine. His comments presuppose laws which go above and beyond the national
charter (such as drug prohibition today) and the jury's vital role in seeing
that no citizens are harmed by such tyrannical legislation.
-
- John Adams, the second American president, sang from
the same hymnal. "It is not only [the juror's] right, but his duty,"
he said in 1771, "to find the verdict according to his own best understanding,
judgment, and conscience, though in direct opposition to the direction
of the court."
-
- Likewise, in an 1804 libel case, Alexander Hamilton argued
that "the jury have an undoubted right to give a general verdict,
which decides both law and fact."
-
- "This distribution of power, by which the court
and jury mutually assist, and mutually check each other," Hamilton
continued, "seems to be the safest, and consequently the wisest arrangement,
in respect to the trial of crimes. ... To judge accurately of motives and
intentions, does not require a master's skill in the science of law. It
depends more on a knowledge of the passions, and of the springs of human
action, and may be the lot of ordinary experience and sagacity."
-
- In other words, the people are deemed sensible enough
to decide when one of their fellows is getting the shaft from an unjust
law. This only makes sense. The people are judged sensible enough to elect
legislators in the first place. If things go awry after the ballot box,
the jury box provides one more place to check and stop the progress of
tyranny by nullifying bad laws passed by those legislators.
-
- Far from viewing nullification as a gateway to random
enforcement of law and anarchy, the founders viewed it as an essential
tool for combating despotism and preserving liberty - one more method of
denying absolute power to any single man or governing body.
-
- What is so striking about nullification and the Rosenthal
case in particular is how applicable the reasoning of the founders proves
to be. The law violated the consciences of the jurors and was unconstitutional,
to boot.
-
- "There is no such thing as medical marijuana,"
DEA spokesman Richard Meyer told the Associated Press. "We're Americans
first, Californians second."
-
- In terms of the law, that is unmitigated bull.
-
- The U.S. Constitution gives the federal government no
power to prohibit pot. Article 1, Section 8, provides congressional marching
orders on many tasks - banning weed is not one of them. Neither is skirting
the 10th Amendment, which specifically holds the duties of the government
to what the Constitution permits; all else is the business of the states
alone.
-
- Such is the case with California's medpot law, Prop.
215, which permits precisely what Rosenthal was doing.
-
- By nullifying, the jury would have been fulfilling Jefferson's
perceived role of the jury, holding the government to "the principles
of its constitution."
-
- It's too bad the judge lied to the jury before it found
Rosenthal guilty. Had they known better, the jurors may have felt free
to follow their own conscience and sense of justice and thus spared an
innocent man from a travesty.
-
- Find out more about the rights and duties of juries at
Fully Informed Jury Association at:
- http://www.fija.org/
-
-
- Joel Miller is managing editor of WND Books.
- Additionally, he runs his own publishing house, Oakdown.
-
- http://wnd.com/news/article.asp?ARTICLE_ID=30946
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