> Pubdate: Mon,  3 Feb 2003
> Source: AlterNet (US Web)
> Copyright: 2003 Independent Media Institute
> Contact: letters@alternet.org
> Website: http://www.alternet.org/
> Details: http://www.mapinc.org/media/1451
> Author: Ann Harrison, AlterNet
> Related: please visit http://www.green-aid.com/ and
> http://www.medicalmj.org/ Bookmark:
> http://www.mapinc.org/people/Ed+Rosenthal Bookmark:
> http://www.mapinc.org/find?115 (Cannabis - California)
>
> JURORS DENOUNCE THEIR OWN VERDICT
>
> 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
> 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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>
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