Commentary

Compassion Challenged

By Clay S. Conrad
February 7, 2003

Criminal law enforcement is different from anything else government does. Criminal law is the only area of law in which government deliberately and purposefully sets out to inflict pain on its citizens. While violent criminals ought to be punished, our government has a seemingly boundless appetite for inflicting pain on harmless Americans in the guise of the war on drugs. This zeal for punishment comes at the cost of degrading Federalism and the needs and values of the American people. A recent case demonstrates that arrogance handily.

Edward Rosenthal was a medical marijuana supplier who, in compliance with the California Compassionate Use Act, had been growing marijuana for seriously ill people under a doctor’s advice and care. Rosenthal was arrested in February 2002 and accused of supplying marijuana to the Harm Reduction Center in San Francisco. State and local officials knew all about Rosenthal’s business. In fact, Rosenthal had been “deputized” by the City of Oakland, California and made the official supplier of a city-sponsored medical marijuana dispensary.

The Compassionate Use Act passed with 78 percent of the vote in San Francisco. But the federal government moved in to enforce its law. It took a total of 80 jurors to find 12 willing to convict Rosenthal. Most of those summoned for jury duty said they would not be willing to brand someone a felon for growing or distributing medical marijuana. Even after eliminating those who would not convict in a medical marijuana case, Federal Judge Charles Breyer did his best to keep any mention of medical use from entering the case. The jury was given no information as to why Rosenthal was growing marijuana. Rosenthal was disingenuously portrayed not as a conscientious caregiver, but as a large-scale drug dealer.

The evidence that Rosenthal was growing marijuana was indisputable, although there were questions concerning quantities. The government charged him with growing over 1,000 plants — an offense potentially carrying a life sentence. In the end, the jury found Rosenthal guilty of growing between 100 and 1000 plants. He now faces a maximum sentence of “only” 40 years without parole. To Rosenthal, aged 58 and with a 12-year-old daughter, the reduced sentencing range is a distinction without a difference.

In response to the verdict, the Drug Enforcement Administration was ecstatic. “We feel the people of California have spoken,” said DEA spokesmen Richard Meyer. “We’re pleased with the verdict.” Unfortunately, the only people that spoke were those allowed to speak — and 85 percent of the people had been eliminated from the jury.

Even these handpicked jurors were unhappy with the outcome. Several, including jury foreman Charles Sackett, apologized to Rosenthal and expressed shock and outrage after learning Judge Breyer blocked them from hearing Rosenthal’s side of the story. At least half the jury expressed remorse and denounced their verdict. Several jurors held a press conference Feb. 4, 2003 and complained of being misled, manipulated, and bullied into convicting in a case that none of them would have voted “guilty” in, had they known the full story.

Sackett has said it was probable that the jury would have nullified the law and acquitted, had they known this was a medical marijuana case and had they understood the American tradition of independent juries. “I think jury nullification is going to be part of the answer regarding states’ rights in future cases,” said Sackett. Several of Rosenthal’s jurors felt intimidated into going along with the verdict because they erroneously believed that had they engaged in jury nullification they could have been punished or removed from the jury. Matt Gonzalez, president of the San Francisco Board of Supervisors, has commented that juries should know of their ability to refuse to enforce federal laws, when application of those laws would be unjust: “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.”

San Francisco Public Defender Jeff Adachi noted that “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.” It appears that the Rosenthal jury failed to appreciate their nullification prerogative, and, as a result, have inflicted enormous and undeserved pain on Edward Rosenthal and his family.

Meyer is partially right: The people of California have spoken. They spoke in passing Proposition 215, allowing for the compassionate use of marijuana by medical patients, under a doctor’s supervision. Under our Federalist system of government, it would appear that the voice of the people of California should be heeded. Edward Rosenthal is simply a pawn, having been caught in the crossfire between the DEA’s insatiable desire to inflict pain on those who use or grow marijuana, regardless of the reasons, and the compassionate tolerance of Californians.

Clay Conrad is an attorney and the author of “Jury Nullification,” published by the Cato Institute.