State vs. federal: Whose law prevails?

This wasn't supposed to happen here

[Reprinted from Issues & Views February 10, 2003]

The collusion of prosecutor and judge against a defendant often can be so complete, that jurors feel too cowed in court to go against the wills of these two powers and vote their own consciences. As a society, we seem to have moved away from the 1960s-70s coddling of "perps" to a willingness to ignore what once were considered sacred legal protections. The case of Ed Rosenthal is a striking example.

On January 31, he was convicted in a California federal court for marijuana cultivation. Under the draconian laws of mandatory sentencing, he faces life in prison. Besides the general outrage of the charges themselves, what makes this case special is the behavior of Judge Charles Breyer, who would not allow the jury to learn that Rosenthal's activities were perfectly legal under California law. As an official for the city of Oakland's medical marijuana program, Rosenthal was authorized, under Prop. 215, passed in 1996, to operate a plant growing facility. In court, he was not allowed to testify in his own defense and explain his actions.

The case opens up cans of all kinds of legal worms, the most prominent of which are jury nullification and states rights. The defense is appealing, and sentencing is set for June. Prospects look good for a re-trial. Following are excerpts from two commentaries on the subject:

From Alexander Cockburn in Counterpunch:

Within hours of finding famed marijuana expert Ed Rosenthal guilty on three felony counts of conspiracy and marijuana cultivation, a sobbing juror was overheard saying she and others jurors had been terrified that US District Judge Charles Breyer would throw them in prison if they had found Rosenthal innocent, although she herself had had a strong disposition to do so.

Jury foreman Charles Sackett (a building contractor) told the press after the verdict that he hoped the Ninth Circuit Appeals Court would reverse the verdict and another juror, Marney Craig (a property manager), said "It seems like we made a horrible mistake. I should have stood up and said, 'I'm not convicting.'" . . .

The Feds, in the form of the DEA, accused Rosenthal of being a big time marijuana grower, and at no time did Breyer allow Rosenthal or his defense team to explain to the jury that Rosenthal believed his actions to be entirely legal under state law. . . .

Of course the jury, like all juries, had the right to consult their consciences and set the law aside, but such is the deplorable state of civics instruction today, and such is the dictatorial propensity of judges and the hostility or indifference of elite opinion that the fundamental principle of jury discretion, the foundation stone of freedom is barely known.

Joel Miller at World Net Daily tells what happened when Rosenthal's attorney, Robert Eye, made a veiled plea to the jury for jury nullification of the case, whereby the jurors would determine not only the defendant's guilt, but also the justice of the law itself:

Jumping on Eye, the judge interrupted and told the jury, "It's not your determination whether a law is just or unjust. That can't be your task." Going further, according to jurywoman Marney Craig, the judge instructed, "You cannot substitute your sense of justice . . . for your duty to follow the law."

The judge is wrong. "If the jury feels the law is unjust," according to the Fourth Circuit in the 1969 case U.S. v. Moylan, "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 . . . the jury has the power to acquit . . ." . . .

John Adams, the second American president, sang from the same hymnal. "It is not only [the juror's] right, but his duty," he said in 1771, "to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

Likewise, in an 1804 libel case, Alexander Hamilton argued ... "To judge accurately of motives and intentions, does not require a master's skill in the science of law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity."

In other words, the people are deemed sensible enough to decide when one of their fellows is getting the shaft from an unjust law. What is so striking about nullification and the Rosenthal case in particular is how applicable the reasoning of the Founders proves to be. The law violated the consciences of the jurors and was unconstitutional, to boot.

"There is no such thing as medical marijuana," DEA spokesman Richard Meyer told the Associated Press. "We're Americans first, Californians second." In terms of the law, that is unmitigated bull.

The U.S. Constitution gives the federal government no power to prohibit pot. Article 1, Section 8, provides congressional marching orders on many tasks -- banning weed is not one of them. Neither is skirting the 10th Amendment, which specifically holds the duties of the government to what the Constitution permits; all else is the business of the states alone.

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