In November 1996, California voters approved an initiative that allows people who are seriously ill to obtain and use marijuana for medical purposes. Federal officials lobbied against that measure, but the voters approved it anyway. After the election results were tallied, Attorney General Janet Reno and Drug Czar Barry McCaffrey declared that they would throw any doctor in jail for prescribing or even for discussing the medical benefits of marijuana.
Last year, the U.S. Supreme Court made it clear that whatever may be the law in the various states, in federal marijuana prosecutions, the trial judge can stop the person who is accused of a crime from mentioning in court why he possessed or used marijuana. United States v. Oakland Cannabis Buyer’s Cooperative, 532 U.S. 483 (2001). The court reasoned that because the federal law did not have any “medical use” exception to its ban on drug possession, any discussion of a compassionate motive could be deemed “irrelevant.” If a defense attorney so much as mentions the “medical” subject in front of the jury, the judge can throw him in jail for “contempt of court.”
Since the passage of the 1996 initiative, federal prosecutors have been extremely worried about enforcing the federal marijuana laws in California. With thousands of voters expressing disapproval for criminalizing marijuana possession in medical situations, prosecutors fret that juries will exercise leniency toward defendants by simply voting “not guilty.” Even if a single juror resists peer pressure and votes not guilty, there will be a mistrial because of a hung jury.
Contrary to popular belief, there is nothing wrong with jurors who wish to vote their conscience. Our second president, John Adams, wrote that “it is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” C.F. Adams, “The Works of John Adams” 253–255 (1856).
Today, however, federal judges view such behavior with disdain. In most cases, judges tell jurors that they must “follow the law‐even if they disagree with it.” In the event that a jury should reject that suggestion, the judge is powerless to reverse the verdict or to punish the jurors. As Justice Oliver Wendell Holmes once noted, “The jury has the power to bring in a verdict in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135 (1920).
This brings us back to the trial of Epis, who is accused of being a “marijuana dealer” and faces a minimum term of 10 years in prison. Epis would like to have an opportunity to persuade the jury that he only sells marijuana to people who are seriously ill, but the government has stopped him from raising that defense.
The federal prosecutor also is upset about the protesters who have been gathering around the courthouse. The protestors have been holding up signs in an attempt to alert jurors about the harsh 10‐year penalty that Epis is facing. Prosecutors don’t like all the attention the case is receiving and want to keep the penalty information away from the jury because it might affect their deliberations.
Believe it or not, one protestor was arrested for simply handing out pamphlets to pedestrians headed for the courthouse. The pamphlet explained that jurors can vote their conscience and that judges mislead juries by telling them otherwise. Jury nullification is certainly a controversial topic. But have we reached the point where an American can be thrown in jail for passing out flyers with quotations from the men who fought the American Revolution, framed the Constitution and served as president of the United States?
The federal prosecutor also has complained to the judge about the news articles that have appeared in The Sacramento Bee. The articles have been “negative to the government,” he sniffed. This little trial is fascinating because it shows the lengths to which the federal government will go to enforce its Draconian drug laws‐keep the jury in the dark as much as possible, arrest peaceful protestors and demand “favorable” news coverage about the whole thing.