Thompson at Large - author, journalist, blogger, and periodic talk radio host

Federal jurisdiction versus states' rights — and common sense

A number of the jurors say they felt it in their stomachs, an aching feeling that the proceedings were hiding as much as they were revealing — a sense that there was something false at the trial’s very core.

For Pamela Klarkowski it was "the non-stop objections raised by prosecutors to repeated attempts by the defense to present its case, coupled with a certain automatic quality in the way the judge sustained the vast majority of those objections." Marney Craig was perplexed by the judge’s demand that the defense had to stick to a pre-approved list of questions. She also couldn’t help wondering "who was this defendant really, why was he so important that they seemed to have such high stakes in convicting him."

Eve Tulley-Dobkin said she had to work to suppress a recurring sense that the proceedings were a mere formality, "as if the outcome had somehow been predetermined." Charles Sackett, the jury’s foreman, said he came to feel "truly saddened as I realized deep down I was being conned."

By the time they knew their misgivings were collective, it was too late. They had already joined eight other jurors in unanimously convicting an Oakland man named Ed Rosenthal on federal charges of growing and distributing marijuana. A majority of the panel says they would today acquit Rosenthal on all counts says if they could vote again.

Obviously it’s not every day that jurors walk of a courtroom denouncing their own verdict and calling for a new trial ‘ especially jurors who say they believe the defendant committed the crimes listed in the indictment. It’s also not every day that prosecutors emerge from the same courtroom declaring that the "people of California have spoken," particularly prosecutors who've just spent several days arguing that the views of the people of California are entirely irrelevant to the case. And it’s not every day that a judge pulls out every stop to ensure that jurors won’t hear mention of the decision seven years earlier by California voters to legalize the very acts for which the defendant found himself in court.

For the record, the day was January 31, 2003. The place was U.S. District Court in San Francisco. Then and there, say his defenders, Rosenthal was convicted of growing and supplying marijuana in accordance with Proposition 215, the 1996 initiative that made it legal to grow and distribute marijuana for medicinal purposes. Federal prosecutors remember things differently. They say Rosenthal was convicted of three felony crimes: cultivation of over 100 marijuana plants; conspiracy to cultivate over 100 plants; and running a drug manufacturing facility.

As it happens, both sides are right ‘ in their own way. Inside the borders of California, Ed Rosenthal was deputized by the city of Oakland as the official supplier of a city-sponsored medical marijuana dispensary, authorized to grow and supply marijuana for seriously ill people under a doctor’s advice and care. But inside the borders of United States, marijuana is a Schedule I controlled substance with no recognized medical efficacy. By cultivating starter plants in a warehouse that were to be distributed into the population, Ed Rosenthal came into the crosshairs of the feds as a large-scale drug dealer.

In American criminal justice, federal law trumps state and municipal law. This means when agents of the federal Drug Enforcement Agency broke down the door of Oakland medical marijuana deputy Rosenthal’s home on February 12, 2002, the ensuing conversation about who would be leaving in handcuffs was probably brief.

* * *

Eleven months later, most of the potential jurors summoned for duty indicated they wouldn’t be willing to brand someone a felon for growing or dispensing medical marijuana. After removing those who wouldn’t convict in a medical marijuana case (it took a total of eighty jurors to find twelve willing to convict Rosenthal), U.S. District Court Judge Charles Breyer ruled that evidence concerning medical marijuana was irrelevant because federal law does not recognize medical uses for marijuana. Though prosecutors and defense attorneys were well aware of Rosenthal’s role as a medical marijuana grower, Breyer was determined to prevent the jury from finding out. Ironically, it was his efforts to keep jurors in the dark that came close to tipping them off.

‘"One thing that made me take notice was when the judge demanded that the defense stick with a pre-approved list of questions," recalls alternate juror Don Withers. "At one point the judge stunned the whole courtroom by taking over the questioning of a witness. It was like a bitch-slap to the defense attorney who stood there in amazement."

Breyer’s close scrutiny of the defense reached a climax during closing arguments, several jurors noted. Rosenthal attorney Robert Eye told jurors they had brought life experience and common sense with them to the trial, and it was right that they should apply them in deciding the case. Eye urged that jurors to take stock of their own sense of justice, and be willing to apply it in reaching their verdict. "Send a message about what you expect and demand from the U.S. government when they prosecute a case like this," Eye said.

Breyer roundly scolded Eye for his remarks. Then he turned to the jury and declared, "You cannot substitute your sense of justice, whatever that means, for your sense of duty."

"Something about how the judge emphasized the words ‘whatever that means’ had a chilling effect," recalls Klarkowski. Several jurors agreed, saying they felt an unspoken threat that they could have gotten thrown off the jury and maybe even thrown in jail if they had voted to acquit based on the hints about medical marijuana they’d been picking up throughout the trial.

"Something happened to us in the deliberation room," says Craig. "I don’t fully understand our response, but I believe the experience was collective and it involved a sense of implied coercion." Craig’s remark brings to mind the now classic study of obedience to authority conducted by Stanley Milgram in the early 1960s at Yale. Milgram had test subjects ("Teachers") believing they were inflicting deadly electrical shocks to fellow test subjects ("Learners"), in order to study the effects of negative conditioning on learning. The shocks were not real and the learners’ shrieks of pain were prerecorded, but the Teachers didn’t know their role in an elaborate illusion designed to put the real test volunteers ‘ the Teachers ‘ in a position where they had to decide whether to carry on with experiment believing they were shocking the Learners, or instead refuse to continue with the experimenters’ instructions, persuaded by the agonized screams of the Learners.

"Many of Milgram's subjects needed years of psychoanalysis to overcome the harm done by believing they'd committed horrendous acts in obedience to malevolent authority," says Clay Conrad, chairman of the Fully Informed Jury Association (www.fija.org), a non-profit organization dedicated to restoring the political function of the jury as the final check and balance on our system of government. Conrad believes Rosenthal's jurors have been subjected to the same sort of treatment Milgram's subjects endured. "Potential jurors need to know they are independent citizens, and no judge can force them to silence or ignore their own moral judgment. The conscience of the community, as the jury is known, cannot operate with its conscience silenced. In these cases, which pit government against the judgment of the great majority of citizens, the conscience of the community is desperately needed."

Juror fear is far more widespread than most people realize, says Godfrey Lehman, a veteran jury watcher, lecturer and historian based in Petaluma. "It’s really only when jurors are informed of their own powers, when they receive all the evidence rather than only some, when they are free of outside influences ‘ in other words, when they are independent, that they nearly always prove themselves to be the ultimate defenders and guardians of the people’s liberties."

The power of juries is their immediate impact, says Lehman, author of Is This Any Way to Run a Jury? "Deciding the facts in a dispute is central of course, because that’s what’s asked of them. But in deciding the facts, the jury is obliged to decide if the law or laws involved make good public policy. In every criminal case jurors have a right to acquit, regardless of the evidence. And when the jury acts, the government complies at once ‘ the government can’t retry the accused or appeal the conviction. This is because in our republic all power is inherent in the people. The jury is composed of a representative group of equal sovereigns - intended to be large enough to be diverse, but small enough to be operable, and as sovereigns, they retain, inherently, all power."

Jurors rarely know this, which allows judges to turn them into pawns, Lehman adds. "Judges like it when jurors are submissive. But if the panel is able to rise up and act on conscience in the face of bad laws, it turns itself into a true jury, and forces the government to hang its head."

* * *

When jurors convicted Rosenthal on three federal counts of cultivation and conspiracy ‘ a conviction requiring a minimum of five years in prison ‘ they didn’t know he was growing marijuana for medicinal purposes. Appearing on the steps of the federal courthouse four days after their verdict, five jurors, joined by an alternate, said they would not have found Rosenthal guilty if they had been permitted to consider the California law. The group said they spoke for at least two other jurors.

"In good faith, we as jury members allowed ourselves to be blindfolded to weigh the evidence before us," the statement said. "But in this trial, the prosecution was allowed to put all of the evidence and testimony on one of the scales, while the defense was not allowed to put its evidence and testimony on the other scale. Therefore we were not allowed as a jury to properly weigh the case."

Against a backdrop of a banner reading "Arrest Criminals Not Caregivers," the jurors apologized to Rosenthal, his wife, Jane Klein, and their daughter Justine. "I’m sorry doesn’t begin to cover it, said Marney Craig, a property manager in Novato. "It’s the most horrible mistaken I’ve ever made I my entire life." Charles Sackett of Sebastopol said, "We as a jury were kept in the dark. I never want to see this happen again."

Reacting to the Rosenthal verdict and other marijuana raids throughout the state, U.S. Rep. Sam Farr, D-Carmel, recently announced legislation that would keep medical marijuana growers and suppliers out of federal prisons. "These federal agencies, including the Drug Enforcement Administration and the Justice Department, have no respect for the laws we here in California have established to allow patients to live pain-free lives," Farr said.

Co-sponsored by Rep. Lynn Woolsey, the bill would allow defendants in federal criminal trials to introduce evidence that their marijuana-related activity was performed for a valid purpose under state law. "If a jury finds that a defendant was following state medical marijuana law, then the defendant should not be sent to prison."

Farr’s bill is not the first stab at getting Congress to allow for states with medical marijuana laws. Similar proposals by Rep. Barney Frank, D-Mass., received almost no attention in the House of Representatives. "It’s going to be a long haul," says Farr.

Rep. Dana Rohrabacher, R-Huntington, agrees. "Most conservative Republicans have a very strong libertarian streak," says Rohrabacher, a co-sponsor of Farr’s legislation. "A large number of these people are politically afraid of having someone claim they’re for legalizing all drugs, attacking them viciously in a Republican primary."

KGO radio talk show host Gene Burns, a longtime libertarian thinker and activist, is glad for the legislative efforts but says he would prefer for the Rosenthal case to go directly to the Supreme Court. "There are very few instances where the Supreme Court has original jurisdiction," says Burns, noting that the court usually takes cases solely on appeal from other judicial venues. "The Constitution gives the top court authority to directly hear disputes between states and the federal government," he says. For that reason he believes the Rosenthal case is an ideal candidate for Supreme Court jurisdiction.

"Our highest court is currently comprised of justices who claim to believe the job of a judge is to interpret the law, not make law. I happen to share that view, which is why I would be eager to see how the justices might try to skate around the tenth amendment: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.'

Burns continues: "I would also want to hear how strict-constructionist justices like Antonin Scalia and Clarence Thomas would justify any federal involvement in marijuana prohibition, given that federal authority to legislate on drug use is interpolated; it is not in the Constitution, it’s derived from other things."

Burns doesn’t really expect the nation’s top court to claim immediate jurisdiction on the Rosenthal case. He believes the time has come for more powerful and more direct medicine: a willingness of "stealth jurors" to nullify marijuana laws in the same spirit of "enlightened subversion" that inspired patriots like Patrick Henry, Tom Paine and Paul Revere during America’s founding era.

"Jury nullification allows the people, without the assistance of the supreme court or any lawyer, to effectively repeal these laws, so long as they do it very carefully. There are some frightening court decisions stipulating that if you openly talk in a jury room about jury nullification, and another juror complains, you can be removed. So what we need is a group of stealth jurors who will hang the jury without saying why. It only takes one juror to hang a jury in a criminal case."

Burns envisions a scenario in which widespread awareness grows that jury nullification is happening, although prosecutors would never know in what specific cases. As the feds start losing a lot of marijuana cases, they carry some provocative questions to Attorney General Ashcroft:

"With all due respect, sir, do we really want to make medical marijuana cases the centerpiece of our prosecution agenda, at a time when we’re beset by terrorists and huge legal wrangles over whether we can hold foreign nationals incommunicado Guantanamo Bay? Sir, do you really want us out there wasting our time on marijuana cases, when there’s this ugly mood out there in the population not to convict?"

Perhaps federal prosecutors assumed that getting a conviction of Ed Rosenthal would stop the medical marijuana movement in its tracks. Given Rosenthal’s sudden emergence as a rallying point for that movement, an image from Star Wars comes to mind. Darth Vader is preparing to finish off Obi-Wan Kenobe, who calmly says to his dark nemesis: "If you strike me down I will become more powerful than you can possibly imagine."

Federal Prosecutors say they mean to proceed with more than 20 California medical marijuana cases now pending in federal court. The outcomes could hinge on how many jurors choose to just say no. It remains to be seen whether the phrase "medical marijuana" becomes interchangeable with "Boston Tea Party" in future discussions on the symbolic power of herbs.