Judge Breyer's action is questionable, most questionable

[alan]

Jurors Who Convicted Marijuana Grower Seek New Trial
By DEAN E. MURPHY


SAN FRANCISCO, Feb. 4 — In an unusual show of solidarity with the man they convicted last week, five jurors in the trial of a medicinal marijuana advocate issued a public apology to him today and demanded that the judge grant him a new trial.

The jurors said they had been unaware that the defendant, Ed Rosenthal, was growing marijuana for medicinal purposes, allowed since 1996 under California state law, when they convicted him on three federal counts of cultivation and conspiracy. He is to be sentenced in June and faces a minimum of five years in prison.

"I'm sorry doesn't begin to cover it," said one of the jurors, Marney Craig, a property manager in Novato. "It's the most horrible mistake I've ever made in my entire life. And I don't think that I personally will ever recover from this."

The judge in the case, Judge Charles R. Breyer of Federal District Court, had barred Mr. Rosenthal's defense from mentioning the state law because he was indicted under federal law, which does not allow the growing of marijuana for any purpose.

When he was arrested last February, Mr. Rosenthal was cultivating starter plants in a warehouse that were to be distributed to seriously ill patients by medical marijuana clubs in the San Francisco Bay Area. Mr. Rosenthal, who lives in Oakland, was acting in his official capacity as "an officer of the city" under Oakland's medical marijuana ordinance, Oakland officials said.

In a statement read outside the federal courthouse here, the five jurors, joined by an alternate, said they would not have voted to convict Mr. Rosenthal if they had been allowed to consider the California law. The group said they represented the views of at least two others who had served on the 12-member panel.

"In good faith, we as jury members allowed ourselves to be blindfolded to weigh the evidence before us," the statement said. "But in this trial, the prosecution was allowed to put all of the evidence and testimony on one of the scales, while the defense was not allowed to put its evidence and testimony on the other scale. Therefore we were not allowed as a jury to properly weigh the case."

One by one, the jurors stepped up to a lectern and apologized to Mr. Rosenthal, his wife, Jane Klein, and their daughter, Justine, who stood nearby.

"We as a jury truly were kept in the dark," said Charles Sackett of Sebastopol, who was the jury foreman. "I never want to see this happen again."

In a striking demonstration of how deep the divide remains between federal and California laws on medicinal uses of marijuana, the jurors were joined by the San Francisco district attorney and two members of the San Francisco Board of Supervisors.

Eight other states allow the sick and dying to smoke or grow marijuana with a doctor's recommendation.

"This is really a travesty," Matt Gonzalez, the board's president, said of the court's decision to exclude the state law from Mr. Rosenthal's defense. The jurors "have been violated by this court," Mr. Gonzalez said.

Before holding the news conference, the jurors attended a hearing during which the United States attorney's office asked that Mr. Rosenthal's bail be revoked. Judge Breyer, ruled, however, that Mr. Rosenthal was not likely to flee and let him remain free on $200,000 bond pending his sentencing.

Though none of the jurors made their feelings known to the judge at the hearing, where the five of them and the alternate sat at the front of the courtroom, Mr. Sackett said he was certain their presence helped persuade the judge to allow Mr. Rosenthal to remain free.

"We did not say a word," Mr. Sackett said. "We were not disrespectful. We just wanted to make a statement."

Mr. Rosenthal's lawyers said they had filed a motion to have the indictment against Mr. Rosenthal dismissed. If that fails, they said, they will file a motion for a new trial. If that should also fail, the lawyers said, they will appeal the verdict to the United States Court of Appeals.

Posters Note: Readers are directed to www.cato.org for additional information and comment. Given that the people on this trial jury were all from "The Bay Area", part of California, it seems unlikely that notwithstanding whatever the judge might have allowed, or disallowed, that they would have been unaware of the results of a hotly fought referendum, said referendum having been on the ballot not many years ago.

 

[Ledbetter]

The part they were unaware of is that they could have applied it to him in this case.

The judge refused to allow the jury to know the facts surrounding the defendant's actions for fear they would not convict, which is what apparently would have happened.

 

[DeltaElite]

"Do you promise to tell the truth and nothing but the truth?"

"If you will let me."

The sad truth is that the judge decides what the jury hears, even pertinent facts are concealed at the whim of a judge.
This is a prime example of that judicial abuse.

 

[Selfdfenz]

Violation of a federal (not California) law.
Tried in a federal (not California) court.

Found guilty. End of story.

Since it was a violoation of federal law, which is supposedly the same across the land, I can't see why informing the jury about standing of the case had it been tried in a state court has any significance.

Not breaking a state law is not a defense for violating a federal law...or am I missing something?
S-

 

[Blackhawk]

Perhaps Mr. Rosenthal's attorneys should be disbarred. His defense was the CA law, and to allow the judge to prevent the jury from not hearing his defense was unconscionable. The CA will surely overturn the DC verdict, but it's very bad form to depend on an appelate court to dispense justice since it's not a fact finder. If Mr. Rosenthal's did not strenuously object to the judge's action on the record, they should also be tarred and feathered.

 

[Blackhawk]

Not breaking a state law is not a defense for violating a federal law...or am I missing something?

Yes, you are.

They are conflicting laws. What business is it of the federal government's that a citizen does or doesn't do something that the CA law specifically addresses?

Was the warehouse federal property or occupied by a federal agency? No? Thought not....

 

[Airwolf]

From the story I read last night about this case, his council DID try on several occasions to get the fact that he was working as an agent for the City of Oakland admitted into evidence. Each time the judge refused.

I understand about Federal vs. State law. I also know the idea of State's Rights was just about wiped out with Lincoln and the Civil War but I think this case is going to be a flashpoint on those issues (as well as the demonizing of Marijuana and the WOD in general).

 

[Blackhawk]

Thanks Airwolf. That's all the the CA needs to reverse Breyer. The question is "Would have admitting the defendant's observance of the CA law made a difference to the jury?" Obviously, it would.

The CA has little choice but to reverse and remand for a new trial.

 

[Selfdfenz]

"when they convicted him on three federal counts of cultivation and conspiracy."

I guess this was the text that caused me to believe he was being tried in federal court for violating federal law.

I guess untill now I had aways just assumed that violating federal law and being tried and convicted of that federal crime(s) could happen with complete disregard to what by law(s) the states may or may not sanction.
That..and the fact that someone could still be in violation of federal law and tried for it inspite of the fact that a state like Alaska decriminalized private use some years ago.

If Cali had a medical crack law and someone was caught producing same in a warehouse could the state overturn a federal conviction? Interesting.

Sometimes I think after highschool there should be two more years of legal education tacked on just as life insurance.
Take care
S-

 

[VictorLouis]

Just one more reason why there should be

a 'Fully-Informed Jury' law enacted in every state. IOW, the absolute right of the jurors to vote their conscience and not just the facts of the law.

 

[another okie]

The state law is not a legal defense. If the jury, in the privacy of the jury room, chooses to disregard the judge's instructions, that is their business.

The judge as it now stands has the legal right to refuse to allow evidence of the state law in, but that doesn't make it morally right to do so.

I can't believe not one person on the jury had read a newspaper article about the case before trial, but it just goes to show the truth of the statement about how dangerous it is to put your fate in the hands of twelve people too stupid to get out of jury duty.

 

[Owen]

However the fed gov does not have the power to regulate growing and distribution of marijuana as in this case, it has no effect on interstate commerce. The pot is grown distributed, and used in Cali.

What part of the constitution would allow the federal gov to regulate marijuana in this case?

 

[Ledbetter]

The defense of necessity

One important issue is the federals' recent refusal to allow the medical necessity defense in marijuana cases.

The defense of necessity has been recognized since common law times. It is never a defense to murder, even if your life is threatened. It is not a defense to theft of a loaf of bread because you're hungry.

However, it has particularly been applied in cases of laws prohibiting behavior that is not evil in-and-of-itself. Permit violations, being forced to carry something into the country, etc.

What the Feds won't permit is for a marijuana defendant to present to the jury the defense that it was necessary to cultivate or possess marijuana in order to alleviate pain, depression and suffering or treat glaucoma more effectively.

The preoccupation of the Feds with control of marijuana is consistent with their monopoly on the regulation of Alcohol, Tobacco and Firearms. It is certain that the Fed cannot permit state decriminalization and maintain its monopoly.

To explain an otherwise irrational government policy, look to who stands to gain power or money.

 

[labgrade]

Coupla things.

The feds have no legal (read that as constitutional) authority dealing with this subject at all.

Apparently, the state has "allowed" said use through statute & is not conflicting with their own constitution.

End of the discussion.

Jury process should (already does!) allow nulification of any stupid law anyway. Frankly, none of the state's business what anybody stuffs in their own body.

 

[alan]

Blackhawk wrote, in part the following:

The CA has little choice but to reverse and remand for a new trial.

If the term you used CA means Court of Appeals, I suspect that they likely have wide enough choice to sail a battleship through. Not being particul;arly learned in the law, I could well be wrong, but I suspect that that is the way it will turn out, which is not to say that some Appeals Court might not overrule Breyer. We shall have to wait and see though.

 

[BogBabe]

Jury process should (already does!) allow nulification of any stupid law anyway.

Well, technically, yes -- a jury verdict of not guilty generally is final, regardless of their reasoning. (Except when the government ignores the double-jeapordy clause and tries you again, as in the case of the Rodney King trial.) And the jury can find "not guilty" for absolutely any reason they want, including the belief that the charge stems from a bad and unjust law, and no one can do a thing about it.

But: The judge's instructions to the jury, prior to deliberations, tell the jury, explicitly and in no uncertain terms, that they are not permitted to judge the law; that they are only permitted to arrive at a verdict based on the evidence and testimony in accordance with the law.

Juries can exercise jury nullification, if they are aware of that power, but they are told by the judge that they cannot.

The fully informed jury movement advocates for the right of jurors to be informed of their right to find "not guilty" because they believe the law is bad, even if they are convinced that the defendant did in fact violate the bad law.

 

[Ted Bell]

Would you still argue for jury nulllification if YOU were on trial for murder and a jury of pacifists thought the self-defense law was "stupid" and chose to ignore the Court's instruction that self-defense is a valid defense to murder?

 

[BogBabe]

In your scenario, Ted Bell, the difference is that the judge, knowing that the self-defense law is a valid law and a sufficient legal defense, and having instructed the jury in its application, can immediately toss the jury's verdict of "guilty" as a mis-application of the law.

"Jury nullification" typically refers to a jury finding a defendant "Not Guilty" because they believe a law is bad and that the defendant should not suffer just because he did, in fact, break a "bad" law. It does not refer to juries finding innocent defendants guilty.

Here are a couple of quotes from court decisions that may enlighten this issue a bit:

The jury has an "unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge... The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law. U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132. (Nevertheless, the majority opinion held that jurors need not be told this. Dissenting Chief Judge Bazelon thought that they ought to be so told.)


"If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision." United States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at 1006.

There is protection built into the legal system for defendants who are unjustly found guilty of a good law. But without jury nullification, there is no protection in the legal system for defendants who are "justly" found guilty of a bad law (i.e., they did in fact break the law, but the law is immoral and/or unjust). Jury nullification provides that protection, but the courts not only don't allow juries to be informed of that power, the courts actually instruct juries that they do not have that power.

 

[Don Gwinn]

No offenz, Selfdefenz, but you're arguing straw men. No one argued that the state would overturn the federal law, nor did anyone argue that a state law in conflict with a federal law automatically overturns the federal law. No one is suggesting that the judge should have thrown out the conviction because there was some automatic disqualification involved.

The point is that the jury was not allowed to know that the man was acting as an agent for Oakland, nor that his marijuana was grown for medical purposes only, nor that the state of California has legalized such activities and several cities in California actively encourage it. Had they known, these five jurors say they would have voted to acquit. If they had argued in the jury room and converted one or two other jurors, he'd have been acquitted. That's a pretty big difference.

Where the judge erred was in not admitting the evidence. Although I'm not a lawyer (and I presume you are, since you make pretty free with the condescending legal education comments) I don't believe the job of a judge is to bar the defense counsel from introducing any evidence that the judge thinks won't get the client acquitted. The attorney is supposed to make that judgment for himself. The judge is supposed to exclude evidence that is prejudicial, not everything that, in his opinion, won't work.

Regardless of what judges instruct, the jury has every right to nullify a law they find unjust by acquittal. As Bogbabe pointed out, it's not at all clear that nullification by conviction is legal--but then, most judges will tell you that nullification by acquittal is illegal, too, so who knows? Certainly nullification by conviction DOES happen. When a jury decides they're going to convict a man they think committed the crime even though they can't articulate what evidence pushed the matter beyond reasonable doubt, they have nullified our evidence laws by that action.

 

[Russ]

I agree with labgrade. The Feds had no business prosecuting this case. IMO, this is a state's rights issue and should have been handled under California law. CA, like it or not, passed a law a number of years ago that made Medical use of Marijuana legal. The feds keep wasting billions fighting their losing war on drugs.

I'm certainly no liberal but I voted for this when I was a California resident. I've seen too many people die from cancer and if smoking pot helps them deal with the chemo treatments then let them do it.

To get Medical Marijuana you have to have a note or prescription from a physician. Do the police now claim to know more about health care than physicians? This infuriates me.

 

[Ted Bell]

BogBabe:

Your selective qoute from Moylan does not represent the Court's conclusion. Reading a little farther ahead in the opinion is this quote:

No less an authority than Dean Pound has expressed the opinion that "Jury lawlessness is the great corrective of law in its actual administration." However, this is not to say that the jury should be encouraged in their "lawlessness," and by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.

Thus, the court in Moylan reaffirmed the "sanctity" of deliberations (the quote you cited) but its not the court's role to instruct a jury that it may disregard the law (the court's decision in the case)

 

[Selfdfenz]

Hi Don,

Its possible that in committing a crime both state and federa laws may be violated.

States have laws that the federal government does not and the converse is true. Prosecutors may elect to attack using either set of laws to get a more or less meaning prison sentence etc.

I thought, from the arti, this was a case where in there was not state law violation but there was a federal violation. He was prosecuted for violating federal law and so far seems to be convicted.

Informing the jury that he was not in violation of state or local laws seems useless to me (and the judge) just like telling them what/about any other state might or might not have on the books for a given crime. If he was being charged with violation of a federal law what Cali has on the books is moot.

I'm not approcahing this from what is right or wrong, moral or immoral, what the voters in Cail wanted or did not want or what rights the states have or don't have or if the evil feds are keeping cancer patients from smoking pot.

Just this ...was the judge required to say one single word about the Cali law? NO because the accused was not charged with breaking the state law of Cali.

His problemo was a federal violation.
Capital F, capital ederal.
The sate law is no defense for breaking a federal law.

BTW all. When was it that the DEA did not have the jurisdiction for going after any drug manufacturing operation in the country?
Not a question of what is right or makes you or the city gov in Cali feel good but of the federal drug laws, like'em or not.
These laws may be stupid, and not-moral and what have you. But unless they are taken off the books you cook your own goose by violating them or anyothers like them do you not when you do what this fellow did.



S-

 

[spartacus2002]

Although I'm not a lawyer (and I presume you are, since you make pretty free with the condescending legal education comments)

I'm sorry, but I have to agree with Selfdfenz when he says Sometimes I think after highschool there should be two more years of legal education tacked on just as life insurance.

I don't know what kids in school today are being taught, but they sure aren't getting taught anything about law or constitutional rights. The amount of ignorance today with regard to the concept of federalism, restraints on the power of police to search and question, or how our system of law works, is incredible. There are an amazing amount of people I've met who have no idea what is in the Constitution, beyond "oh yeah, there are 3 branches of govt."

What happened to history in this country?

 

[alan]

Don Gwinn:

Re the juries action in this case, I have a problem, note that I HAVE A PROBLEM. The existing law in California was enacted in 1996, as I recall, after what seemed to be a hard fought referenda battle. Since the jurors were mostly from The Bay Area, essentially San Francisco and Oakland, plus a few smaller communities, I find it hard to accept that notwithstanding Judge Breyer's action, they weren't aware of the state of the law in California, where they live.

Perhaps I'm cynical, but personally I tend to smell double-talk, or rotten eggs re "apologizing juries", who after the fact, lament the verdict that they brought in, especially in a case like this one. They bowed to a dictatorial judge, and now they wish to avoid the responsibility for what some would describe as their perhaps intellectual cowardice. Unfortunately, it appears that someone who should now be walking around free, just like you and I, isn't.

Bogbabe wrote in part the following.
"There is protection built into the legal system for defendants who are unjustly found guilty of a good law. But without jury nullification, there is no protection in the legal system for defendants who are "justly" found guilty of a bad law (i.e., they did in fact break the law, but the law is immoral and/or unjust). Jury nullification provides that protection, but the courts not only don't allow juries to be informed of that power, the courts actually instruct juries that they do not have that power".

Does the jury need the judges permission to look out the window, that they might determine for themselves whether or not snow is falling. I should hope not, but such might be the case, which to my mind is one hell of a serious indictment of the quality of jurors. Additionally, while the presiding judge might, in some cases, set aside the juries guilty verdict, anyone who knows better correct me, there is nothing that the judge can do with a verdict of not guilty, brought in by the trial jury.

So when push comes to shove, in my view, Judge Breyer was way off base, denying factual material to the jury, and the jury was way off base re what appears to be it's ducking of it's responsibility, that being to consider matters of fact, that it reasonably should have been aware of, such matters being likely to influence it's verdict, this based on what the jury offered, after the fact of their guilty verdict.

 

[alan]

Spartcus2002 asked

"What happened to history in this country?"

History is still there. however it might be that the educational bureaucrats that run our schools find such matters to be somehow "inconvenient". After all, curious students might ask embarassing questions. Another unfortunate circumstance seems to be that things like "Music to break the furniture by"and "computer games" have replaced reading, perhaps replaced thinking too.