Tidbits on Drug Policy

Another two cents thrown in

How much should the jurors be told?

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Ed Rosenthal, a long-time medical marijuana advocate, is brought to trial in the federal court in San Fransisco on charges of marijuana cultivation. This is his second trial for essentially the same offense: growing marijuana as an agent for the city of Oakland’s medical marijuana distribution program (just to remind the readers, California legalized medical marijuana in 1996).

During his first trial in 2003, he was convicted and sentenced to only one day in jail (which he had already served at the time). That verdict was thrown out by the federal appeals court because of jury misconduct. Probably because Ed Rosenthal is such a well-known and an outspoken public figure, or possibly because they want a precedent on the books, the federal prosecutors are pursuing the conviction, even though they acknowledged that he could not be jailed if convicted again.

The larger issue here is that, just like in the first trial, the information that Ed Rosenthal was growing marijuana for sick patients is being withheld from the jurors. From what I remember, the 2003 conviction culminated in the angry jurors holding a press-conference to apologize to Rosenthal for convicting him and expressing their outrage for being manipulated. In the present case,

“District Judge Charles Breyer told the jurors they were there to decide whether Rosenthal was guilty of growing marijuana, not to draw conclusions about why the government was prosecuting him. For his part, Assistant U.S. Attorney George Bevan described the case as a straightforward prosecution for marijuana cultivation.”

Source: San Fransisco Chronicle: Pot advocate’s new trial begins

Obviously, this is not a straightforward prosecution for marijuana cultivation. While social attitudes to recreational drug use might have remained the same, it seems like, at least in California, the public views therapeutic marijuana use in a favorable light. Not telling the jurors about the reason behind Rosenthal’s marijuana cultivation prods them to make a decision that they would not otherwise have made, as the previous attempt at prosecuting Rosenthal amply demonstrated. The evidence that marijuana cultivation was authorized by the city of Oakland for distribution to sick patients might be irrelevant under the federal Controlled Substances Act; however, it is very relevant to a group of Rosenthal’s peers who are called upon by the federal government to decide his guilt or innocence. As far as I know, the jury still has the power to acquit a defendant regardless of whether he technically broke the law or not. I guess, I can’t say it better than Wikipedia:

“Jury nullification refers to a rendering of a verdict by a trial jury, disagreeing with the instructions by the judge concerning what is the law, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what is the law or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a “dead-letter” or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict than officials who may be unduly influenced. Jury nullification is a reminder that the right to trial by one’s peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.” (Italics Added).

Source: Wikipedia: Jury Nullification

The federal prosecutors and Judge Breyer are undoubtedly aware of the very real possibility of the jury exercising its jury nullification right in this particular trial. Hence, they withheld the information from it, I suppose, on the grounds that the probative worth of such evidence is low considering that (a) it is irrelevant as far as the federal law is concerned, and (b) it might make jurors unduly sympathetic to the defendant and thus, render their reasonable doubts uhm… unreasonable. The irony here is that a reasonable person is likely to render a more equitable decision had he or she been presented with a full context behind Rosenthal’s marijuana cultivation. The fact that that decision would likely not be the one favorable to the government should not be dispositive in excluding the evidence.

Originally written on May 16, 2007

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