Wednesday, June 22, 2005

Medical Marijuana - Is Jury Nullification the Next Step?

Perhaps the last defense against intrusive law will finally start to be employed and medical marijuana users will start having juries come back with NOT GUILTY verdicts.

Medical Marijuana

Is Jury Nullification the Next Step?


Since the June 6 Supreme Court decision in Gonzalez v. Raich, medical
marijuana supporters have largely determined to focus on lobbying
congress. While Raich did not overturn state medical marijuana laws
in the eleven states that have them (Alaska, California, Colorado,
Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and
Washington), it did permit the federal government to arrest medical
marijuana patients in those states. (State medical marijuana bills
exempt qualified patients who use cannabis medicinally from state
criminal penalties.)

Congress is expected to vote later this month on a bipartisan
amendment sponsored by Reps. Dana Rohrabacher (R-CA) and Maurice
Hinchey (D-NY) that would prohibit the federal government from
spending taxpayers' dollars to prosecute patients who comply with
their state's medical marijuana laws. Yet Congress has refused to
pass a similar bill before, and has by all appearances only moved
further towards intolerance in the interim. It seems a stretch to
believe that this Congress will act to protect medical marijuana

In some areas, particularly the San Francisco/Oakland area of
Northern California, it seems likely that jury nullification may be
an increasing threat in federal marijuana cases. In 2003, jurors
revolted after convicting Ed Rosenthal of growing 100 pounds or more
of marijuana in a highly disputed San Francisco federal case. The
jury was outraged that they had not been informed that Rosenthal was
growing the marijuana for distribution to medical dispensaries. Juror
Marney Craig, a 58 year old Marin County property manager, labeled
the trial "a cruel charade." "It is the most horrible mistake I have
ever made," she said. "I feel like we were sheep, we were

The foreman, Charles Sackett, said, "I fail to understand how
evidence and testimony that is pertinent, imperative and
representative to state government policy, as well as doctor and
patient rights, and indeed your own family, are irrelevant to this

Following Rosenthal's conviction, five of the jurors joined Rosenthal
on the steps of the Federal Courthouse, denouncing their own verdict,
saying they had been manipulated and misdirected, and demanding that
Rosenthal receive a new trial. Not surprisingly, the trial court
judge, Charles Breyer (brother of U.S. Supreme Court Justice Steven
Breyer) refused to consider the jurors protests or grant a new trial.
However, in the glare of negative publicity, Judge Breyer eventually
gave Rosenthal - whom the federal government wanted to send to prison
for six and a half years - a startling one-day sentence.

The Rosenthal jurors convicted without being aware of their
nullification prerogative. However, the Rosenthal case made the issue
of jury nullification a front page item - and cast it in a positive
light. Articles on the jury revolt, often including statements by
Sackett and others that jury nullification would play a large rule in
future trials, were carried by the New York Times, Newsday, the
Washington Post, Reuters, the San Francisco Chronicle, San Francisco
Examiner, Oakland Tribune, the Chicago Tribune, the Associated Press
and elsewhere. The jurors themselves appeared on numerous nationally
televised news broadcasts.

Will medical marijuana advocates, such as Americans for Safe Access,
NORML and Green-Aid, find that educating the jury pool in their
nullification prerogative is their only way to defeat the Federal
efforts to steam-roller their home-grown velvet revolution? It
wouldn't be an unreasonable choice. Particularly in Northern
California, it would be difficult to imagine putting together a jury
of 12 people without including at least one medical marijuana
supporter. Such a person could simply refuse to convict - claiming to
find the evidence unconvincing - and avoid a conviction. Any
acquittals and/or hung juries would successfully announce to other
potential jurors that they simply did not have to convict. In short,
a few recalcitrant "stealth" jurors could cut government prosecution
efforts off at the knees.

Moreover, should jurors decide not to convict in cases of this sort,
Congress might be spurred on to finally pass a law exempting
state-authorized medical marijuana patients from prosecution. The
acquittal of John Peter Zenger paved the way for the reform of
English libel law, and as the acquittals of abused women in "burning
bed" cases paved the way for battered woman syndrome defenses, have
shown that jury nullification can foreshadow dramatic changes in the

Independent jurors could force a change in the way our drug laws
treat seriously ill people who smoke marijuana to relieve suffering
and prolong their lives. And I don't think you have to be stoned to
think that such a change is long overdue.

Clay Conrad currently serves as Chairman of the American Jury
Institute. He can be reached at


Post a Comment

<< Home