The Importance of the Skeptical Jury

The Importance of the Skeptical Jury

By Clay S. Conrad1

On June 4, 2003, Edward Rosenthal was sentenced to one day in prison for growing marijuana. Rosenthal is clearly guilty. If the law is to be applied mechanically, it would appear the law, if not justice, has been served by Ed’s conviction. However, if the law is to be applied mechanically, then Rosenthal’s sentence was unreasonably lenient.

The Rosenthal case underlines why the law should never be applied without regard to the motives for, or consequences of, a defendant’s actions. Rosenthal grew marijuana as medicine, for use on a doctor’s advice, as permitted under California law. Rosenthal was deputized by the city of Oakland to grow marijuana for medical dispensaries. Rosenthal’s actions were approved by California authorities. They remained illegal under Federal law.

After finding Rosenthal guilty, his jurors learned these facts for the first time. District Judge Charles Breyer refused to let Rosenthal’s lawyers mention medical marijuana to the jury. He suppressed any mention that Rosenthal’s operations were legal under California law. The government painted Rosenthal as a drug kingpin, concealing the essence of the case from the jury.

Certainly, jurors knew something was wrong. After one witness blurted out that this was medical marijuana, Judge Breyer instructed the jurors to disregard that remark and silenced the defense, taking over questioning of the witness and disallowing other defense witnesses. Rosenthal was left defenseless, damned and doomed. The jurors felt that they had no choice but to convict.

Of course, they had a choice. Jurors may always acquit, whatever the evidence. They may vote "not guilty" because they believe a Defendant was denied a fair trial and prohibited from presenting his defense. They may vote "not guilty" because they have a hint of a medical marijuana case, or because they sense they are not getting the whole story. They may vote "not guilty" simply because a conviction would be unjust.

The Rosenthal jurors were not told they could acquit on conscientious grounds. One juror asked her lawyer if she could acquit simply because the trial was unfair and the Defendant was silenced. Her attorney said that if she didn’t apply the law, she could be punished.

That is plainly wrong. A juror can always acquit on conscientious grounds. This is the history and purpose of trial by jury. The right to jury trial is the only right mentioned more than once in the Constitution and Bill of Rights (it is guaranteed three times.) It was the only right guaranteed in the constitutions of all thirteen original states. Our Founders considered trial by jury one of our most important rights.

And with good reason. As Patrick Henry noted that "Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off. This gives me comfort – that as long as I have existence, my neighbors will protect me." Henry was never a defendant before Judge Breyer. He never saw a situation in which only evidence which supported the prosecution was allowed. The facts showing Rosenthal’s case was oppressive were hidden - and the jurors, lulled into complacency, were tricked and manipulated into a conviction few of them would have agreed to, had they known the ramifications of their decision.

In response, the Rosenthal jurors did something few jurors ever do - they went public, apologizing to Rosenthal and condemning Judge Breyer for the unfairness of the trial. They have served an important role, alerting future jurors to the need to remain skeptical, and to demand a full picture of the case before them, before agreeing to convict. Should their message be heard, they will have done an enormous service to this country.

Apparently in response to the outrage expressed by the jurors, Judge Breyer minimized Rosenthal’s sentence. However, this begs the question: if it is unjust to sentence Rosenthal for growing marijuana, was it not unjust to convict him? Ed Rosenthal, a gentle man who has done no harm, is now a felon - and only because his jurors were not allowed to know the facts surrounding his actions. He was fined $1300 and faces 3 years of supervised release. He may no longer possess firearms, and may not vote – and may not serve on a jury! His conviction will be appealed, at considerable expense.

Americans have a right to trial by jury. Rights exist for one reason: to limit the power of government. We, as jurors, should remember that the role of a juror is not to be complacent or compliant, but skeptical and independent. Until we have been shown not only that a crime has been committed, but also that the crime is one deserving of punishment, we should remember the gross injustice visited upon Ed Rosenthal, his family, and his jury. We should remember the words of Patrick Henry. We should acquit. Additional trials similar to Ed's are coming up. Let's hope the jurors in these cases understand their role as independent jurors.


1 Shareholder, Lamson & Looney, P.C., Houston, Texas. Chair, Fully Informed Jury Association. Author, Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press, 1998).