Jurors Denounce Their Own Verdict

February 3, 2003

After she and her fellow jurors found Ed Rosenthal guilty of federal marijuana cultivation and conspiracy charges in San Francisco last week, Marney Craig discovered that that she had made a terrible mistake.

Instead of the "businessman" she thought she had convicted, Craig learned that Rosenthal, was, in fact, a widely published marijuana advocate who had been asked to grow medical cannabis for critically ill patients. The judge had kept this information from jurors, because Rosenthal was tried under federal drug laws that do not recognize the medicinal use of marijuana.

"What happened was a travesty and it's unbelievable, unbelievable that this man was convicted. I am just devastated," said Craig. "We made a terrible mistake and he should not be going to prison for this."

Craig is not alone in her remorse. Five other jurors, including the jury foreman, are expected to join Craig to denounce the verdict in a joint press conference this week. The event will take place immediately after a hearing to determine whether prosecutors will succeed in revoking Rosenthal's $200,000 cash bond and send him to jail until sentencing on June 4. Attorneys for Rosenthal, who is facing five to 20 years in prison, say they will ask an appeals court for a new trial.

"I was not allowed to tell my story," said Rosenthal. "If the jury had been allowed to hear the whole truth, and nothing but the truth, I would have been acquitted."

Juror Debra DeMartini said she was distressed to discover that Rosenthal had been deputized by the city of Oakland, California to grow marijuana for its medical cannabis program. Oakland city officials testified during pre-trail hearings that they had tried to reconcile the conflict between the federal Controlled Substances Act, which bans all marijuana cultivation, and California's Compassionate Use Act (Prop. 215) which permits patients to possess, consume and grow their own medical cannabis.

In an effort to provide medical cannabis to patients who could not grow their own, the city granted Rosenthal immunity from prosecution under a section of the Controlled Substances Act. But U.S. District Judge Charles Breyer halted every attempt by the defense team to directly tell jurors for whom Rosenthal's marijuana was being grown and blocked city officials from explaining Rosenthal's deputization during the trial.

"If I had known that he was told he could grow this by the city, that would have raised some questions for me in front of the judge," said DeMartini. "It's a waste of taxpayer money to bring these cases and prosecute people."

Craig sobbed as she recounted her growing concern during the trial that Judge Breyer was withholding critical information. Craig said she became alarmed when the judge took over questioning of the witnesses, when he repeatedly cut off the defense attorney, and when she saw protest signs in front of the courthouse suggesting that jurors were not fully informed.

"The more information we get, the more we realize how manipulated and controlled the whole situation was, and that we were pawns in this much larger game," says Craig. "As residents, we voted to legalize medical marijuana and now we are forced to sit here and not take any of this into consideration?

"In some sense it is a major setback, and in another it is a call to arms,"said Jeff Jones, executive director of the Oakland Cannabis Buyers' Cooperative, one of the medical marijuana clubs that Rosenthal was growing for.

Rosenthal's trail was attended by a number of medical marijuana patients, many of whom wept when the verdict was announced. Nicholas Feldman, a quadrapalegic cerebral palsy patient who says he smokes medical cannabis to ease the pain and spasticity in his limbs, was one of several people who arrived in court in a wheelchair. "How can they do this to us? People are in pain and it means a lot to us as citizens not to see a person suffer." said Feldman. "I stand here to day for people who could end up in jail for helping to ease my pain."

Despite the emotion surrounding the case, some jurors felt that they had no choice but to follow Judge Breyer's instructions, based on the evidence in front of them. DEA agents testified that they seized thousands of marijuana plants and cuttings at a San Francisco medical marijuana club, and at an Oakland warehouse owned by Rosenthal. But jurors said they distrusted the testimony and based their convictions on video tapes of the marijuana grow sites. They found that Rosenthal conspired with others at the club to to grow not more than 1,000 marijuana plants, as the prosecutor claimed, but more than 100 marijuana plants, a fact which will affect Rosenthal's sentencing. Jurors also found him guilty of growing more than 100 plants at the warehouse and maintaining a place to grow marijuana.

Shortly after the verdict was read, juror Bill Zemke walked solemnly from the courthouse past past two medical marijuana patients who sat weeping. "We considered the evidence in the case, the evidence that we could review, it was not an easy decision," said Zemke evenly. [Medical cannabis] was in the back of everyone's mind, a factor in the case, but it was not in the evidence in this case."

"We have state's rights," shouted the disconsolate patient, "you can't lock all of us up."

Jurors Have Power But Not The City

Jury foreman Charles Sackett agreed with Zemke that jurors came to the only conclusion that they could have, given the information they were provided. But he said he supports medical marijuana and hopes Rosenthal will win his appeal. "The medical issue was not introduced into the court proceedings, it was never an issue for us," said Sackett. "We weren't allowed to discuss it amongst ourselves, ever."

Sackett says he's now intrigued by the idea of jury nullification, which he says none of the jurors was aware of. Jury nullification is a legal principal which allows the jury to find a defendant innocent if the law itself is unjust or unjust in a particular application. Would jurors have taken the option of jury nullification in Rosenthal's case? "It would be speculation on my part, but it's very possible; dare I say, probable," says Sackett. "I think jury nullification is going to be part of the answer regarding states' rights in future cases."

Down at San Francisco City Hall, Matt Gonzalez, president of the city's Board of Supervisors, or city council, said jurors in cases like Rosenthal's should know that they can simply refuse to follow federal law. "The judge is not giving the jury any space, whatsoever, to engage in what has been an extremely long tradition in common law as it relates to jury nullification," said Gonzalez.

Craig said she believed that if she had taken a stand during deliberations and said the federal law was wrong, she would have been removed from the jury. "I didn't know what would happen to us if we didn't follow the rules, how much trouble I would get into," said Craig. "I was totally intimidated into going along with the verdict because I didn't see any other way."

San Francisco public defender Jeff Adachi noted that there have been a number of decisions involving jury nullification in which judges have removed jurors who have refused to convict. But he said a jury instruction that permitted this was ruled to be unconstitutional in the last year. "Over the past 20 years, there has been a movement to limit the power of the jury by keeping the jury ignorant of the facts," said Adachi. "Jury nullification is a constitutional right that every individual person who is called for jury duty possesses, and unless we appreciate that right, we will lose it because the courts will take it from us."

In the meantime, Adachi warned that Rosenthal's conviction will encourage federal authorities to arrest more medical cannabis growers and distributors. "The kind of prosecution that we are seeing in the Rosenthal case could be multiplied 50 or 100 times over in the next year or two here," said Adachi.

Despite the warning of coming prosecutions, Rosenthal's attorney Bill Simpich noted that city officials were absent during Rosenthal's trial. While Prop. 215 passed by 78 percent in San Francisco, he said officials have been slow to comply with a recent ballot initiative ordering them to investigate a city-run medical cannabis growing and distribution system.

"'The single biggest thing that hurt us is that we did not have the cities of San Francisco and Oakland by our side," said Simpich. "They were not there and if they had been there we would have won. They made a mistake and the time to correct it is now."

Simpich is calling for California cities and counties to continue immunizing medical cannabis caregivers because the judge's condemnation of this tactic applies only to those cases in front of him. "I'd love to get deputized," said Bob Martin, proprietor of the San Francisco's Compassion and Care Center medical marijuana club. "We are scared every day."

Gonzales says he is still meeting with officials and legal advisers to review the city's options. DEA spokesman Richard Meyer has made it clear that any San Francisco city authority involved growing or distributing medical marijuana will be subject to arrest and property forfeiture.

Craig said she upheld federal law and convicted Rosenthal because she felt she didn't have any choice. But she says that following instructions was no excuse for not acting on her conscience and refusing to convict a medical marijuana grower. "Anyone who said I was just following orders ... well yeah, we just wiped out this village in Viet Nam, we were just following orders, or 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," said Craig.

"I feel like if I had done something in this trial, even if I had been thrown off the jury, it would have made a difference because it would have been on the record that someone said 'No,' and that is something I have to live with."


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