One Angry Jury

by Alexander Cockburn

The district attorney of San Francisco, Terence Hallinan, got it right. Tuesday saw a scene outside U.S. District Court in that city that was probably without parallel in American history. Five jurors plus one alternate (there were three more jurors unable to attend but in agreement) publicly apologized to the man they had found guilty four days earlier and proclaimed to the press their shame that they had been, as one of them put it, "manipulated, intimidated, controlled" by U.S. District Judge Charles Breyer into finding Ed Rosenthal guilty.

It was certainly one of the most moving scenes outside a courthouse I have ever witnessed: six angry people asking Rosenthal for forgiveness and declaring that they would be ashamed of what they did for the rest of their lives.

The reluctant jury found Ed Rosenthal guilty last Friday afternoon of breaching federal drug laws. Within moments of leaving the court, the furious jurors found out what Judge Breyer had prevented Rosenthal's defense team from disclosing to them: that Rosenthal had been appointed by the City of Oakland under the terms of California's Proposition 215, passed by the voters in 1996, as the supplier of medical marijuana to people in chronic and desperate pain.

One juror was thrown into such anguish that she spent the evening in tears and finally decided go to the press to disclose her rage and disappointment in the justice system. Over the weekend, in anticipation of Tuesday's hearing on whether Rosenthal should be jailed pending sentencing in June, their anger hardened into determination to make a public stand.

These are people (a landscape contractor, a registered nurse, an airplane engineer, a property manager and a student working in her dad's trucking firm) who would have trembled a week earlier at the thought of facing press and TV cameras. When it came to it, at that noon press conference on Tuesday, they all had the pure eloquence of people outraged at the injustice of what they had been compelled to do to Rosenthal, by dint of Judge Breyer's peremptory scripting of the federal railroading of Rosenthal.

Charles Sackett, jury foreman, read out a letter of apology to Rosenthal. "I fail to understand," he said, "how evidence and testimony that is pertinent, imperative and representative to state government policy and regulation, as well as doctor and patient rights, and indeed your family, are irrelevant to this case. I wondered why the defense portion of your case was so brief as to be almost non-existent. We as a jury were unaware that your counsel was being denied the opportunity to present most of your evidence and outside testimony."

Other jurors followed Sackett to the microphones, tendering their personal apologies. Marney Craig pledged to do "whatever I can to get this verdict set aside and to see that Ed gets a fair trial with full information provided to the jurors;" Pamela Klarkowski, a registered nurse, dwelt on the fact that because Rosenthal's conviction had thrown into question the ability of people like himself to provide medical marijuana, cancer and AIDS patients were being doomed to years of pain.

After the jurors came Matt Gonzalez, chairman of the San Francisco board of supervisors and a former public defender who invoked something that should be imparted in every civics class and indeed read out to every jury at the start of every trial (as Mendocino DA Norm Vroman once pledged to me he would insist upon, if elected): the fact that centuries of common law and court rulings have sustained the jury's discretion to decide issues of law as well as fact. Juries in the nineteenth century routinely set aside laws they deemed unjust and freed those accused of sheltering fugitive slaves, upheld freedom of the press and the right of women to vote.

Next came DA Hallinan, who had made a point of attending the earlier court session. He roared out his insistence that "Ed did not violate the laws of California" and that the feds had no excuse to trample over the rights of Californians."

Perhaps the most moving moment of all was one that came after Sackett read out his letter of apology for the first time, in a more private session with the others jurors and with Rosenthal, his wife Jane Klein and daughter Justine. Rosenthal, remember, faces the possibility of many years in prison. When Sackett, a short, somewhat rotund landscape gardener from Sebastopol, California, finished reading in his quiet voice, Rosenthal beamed at him gently and said, "I don't think you wronged me. You were as much victims as me. You were all victims of a judge who had a certain goal in mind."

"This isn't devastation," Rosenthal said to me a few minutes later, "We're a political family. We live our politics. They chose the absolute wrong person." Justine, his 12-year-old daughter, later made a warm and composed speech of sympathy with the remorseful jurors who may have doomed her father to hard prison time.

This was an important political event in the wars over medical marijuana and the rights of those eight states that have passed medical marijuana laws. All Tuesday morning talk show hosts on big San Francisco radio stations such as KGO were broadcasting advice to all future jurors in drug trials to exercise their discretion to set aside unjust laws and to vote their conscience. TV news coverage has been similarly sympathetic. Historically, independent-minded juries overruling dictatorial judges and setting aside bad laws blazed important new paths to freedom.

Judge Breyer has set the sentencing date as June 4, much farther out than is normal. The nearly six months until sentencing should allow enough time for the Ninth Circuit Court of Appeals to decide the appeal of another of Judge Breyer's cases that dealt with a similar question of immunity from prosecution in the context of medical marijuana distribution. If the Ninth Circuit Court of Appeals overturns Judge Breyer's interpretation of the federal statute, as he himself said they very well might, it would guarantee that Rosenthal's conviction would be overturned. The public fury of Rosenthal's jury may well be an important factor.