Helping Justice Overcome a Flawed Policy

Sen. Richard J. Durbin, D-Ill., (search) is 58 years old and a graduate of Georgetown Law School. He has been in federal elected office for more than 20 years.

Nobody has ever accused him of being an old hippie or anarchist. His official duties include appointments on his chamber's Judiciary Committee, the Governmental Affairs Committee, the Committee on Rules and Administration, and the Select Committee on Intelligence, as well as about a dozen subcommittees. His demeanor is serious, sober and focused.

So why does Durbin want juries to follow their own conscience and ignore federal law?

Durbin is currently seeking co-sponsors for a bill that allows federal juries to be informed when defendants facing medical marijuana charges (search) were in fact complying with state medical marijuana laws. A similar measure is pending in the House (introduced by Sam Farr, D-Calif.). Federal prosecutors say if these bills pass and juries learn that marijuana involved in a case is for medical use, they will commit "jury nullification of the law" -- acquitting plainly guilty criminals.

Durbin's measure may be a reaction to the conviction of Edward Rosenthal (search), who grew marijuana in California for distribution to medical dispensaries. His actions were legal under California Proposition 215 (search), and he was deputized by the City of Oakland to provide his product to dispensaries there. Rosenthal's growing operations were inspected, licensed and approved by all branches of California government.

It took a pool of 80 potential federal jurors to find 12 willing to convict Rosenthal. During jury selection, most of those summoned said they could not brand someone a felon for growing medical marijuana. Even after eliminating those who would not convict in a medical case, Judge Charles Breyer (search) prevented any mention of medical use from reaching the jury during the trial. The jury heard nothing about why Rosenthal was growing marijuana. He was disingenuously portrayed by prosecutors as a common drug dealer, not as a conscientious caregiver.

Most legal commentators agree Judge Breyer made the technically correct call. Under traditional notions of relevance, if a fact does not make an element of the crime (i.e., growing marijuana) more or less likely, it is irrelevant. How that marijuana is to be used is not a "legal" factor. Under this theory, any evidence that serves no other purpose than to undermine the moral underpinnings of the law is inadmissible.

Following the conviction, nine jurors did something that, in most cases, would be unthinkable: They publicly expressed remorse for and denounced their own verdict. Jury foreman Charles Sackett apologized to Rosenthal and expressed shock and outrage after learning the jury had been prevented from hearing Rosenthal's story. Several jurors held a press conference, complaining that they had been misled, manipulated and bullied into convicting. The conscience of the community had been stifled.

Sackett has said the jury probably would have nullified the law and acquitted, had they known they were considering a medical marijuana case. "I think jury nullification (search) is going to be part of the answer regarding states' rights in future cases," he said. However, for juries to come to a conscientious judgment, they must hear the whole case. Preventing the jury from knowing that this was a medical marijuana case slandered Ed Rosenthal, misled the jury, and led to the unsavory conviction of a man who, instead of dealing poison on the street and destroying his community, was in fact administering to AIDS, MS, cancer and glaucoma patients.

Not all federal judges accept Breyer's constrained view of relevance. Senior Federal District Judge Jack Weinstein has noted that "courts cannot and should not try to prevent, by restricting evidence unduly or by leaning on jurors, a certain degree of freedom of the jurors to come in with verdicts which may not reflect, in an abstract way, what the facts and the law are." Federal Judge Kenneth Hoyt has written that, as "part of the deliberative process is to determine the moral 'rightness' of the result reached...the justice system must be flexible enough to permit acts of mercy by a jury where the facts dictate morally and ethically that mercy is appropriate."

Sen. Durbin's bill is in line with the history and purpose of the American criminal jury system, which has been likened to the "fourth branch of government" and the "final check and balance." His measure would allow jurors to know whether the verdict they are asked to return would be a just one. If not, jurors could refuse to convict -- nullify the law -- on their own initiative. Durbin's bill will merely allow the jury system -- the conscience of the community -- to dispense, as Judge Hoyt so well put, "acts of mercy ... where the facts dictate morally and ethically that mercy is appropriate."

Clay S. Conrad is an attorney and the author of "Jury Nullification: The Evolution of a Doctrine" (Carolina Academic Press, Cato Institute).