Pubdate: Mon,  3 Feb 2003
Source: AlterNet (US Web)
Copyright: 2003 Independent Media Institute
Author: Ann Harrison, AlterNet
Related: please visit and
Bookmark: (Cannabis - California)


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 Rosenthal'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

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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