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--- Begin Message ----Caveat Lector- Pot case fuels jury power debate Pot case By Josh Richman, STAFF WRITER http://www.oaklandtribune.com/Stories/0,1413,82%7E1865%7E1203118,00.html#Jurors who convicted Oakland medical marijuana grower Ed Rosenthal keep saying they now wish they had not done so, something they said most recently to a national television audience Friday. They know Rosenthal grew marijuana and they know federal law plainly forbids that. But the jurors say if they'd known more about the medical purpose for which Rosenthal acted, they would have "nullified" -- refused to find him guilty, knowing he broke a law but believing the law itself is unjust or misapplied. Now Rosenthal's case has re-ignited debate over whether jury nullification is anarchy or a basic, unwritten civil right. "Juries clearly have the power to nullify, but it's also perfectly clear that's not what we want them to do," saidProfessor J. Clark Kelso, at the University of the Pacific's McGeorge School of Law in Sacramento. "You don't want to be telling jurors that, 'Oh, by the way, you don't have to follow the law.'" That's exactly what jurors should know, said Iloilo Marguerite Jones, the executive director of the Fully Informed Jury Association, a Montana-based nonprofit organization that champions juries' power to weigh not only evidence but also a law's merit and use. "The court of public opinion is distilled and refined into its essence in the creation of a jury, and in their deliberations. ... They reflect the conscience of the community and the highest and best use of our justice system," she said. Jury nullification advocates like Jones note some founding fathers thought likewise. John Adams in 1771 said, "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 instruction of the court." Thomas Jefferson in 1789 said, "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution." And Alexander Hamilton in 1804 said, "Jurors should acquit, even against the judge's instruction ... if exercising their judgment with discretion and honesty they have a clear conviction the charge of the court is wrong." But critics say our judicial system has evolved since then, situating jurors as triers of fact -- deciding what actually happened -- and leaving the law's application and interpretation to judges. It's both a means of ensuring equal protection under law and "a due-process concern," Kelso said. "I have a right to be judged according to the law I know. You can't have criminal laws made up after the fact and applied retroactively. "The only way that works is if the judge instructs the jury on the applicable law," he said, with jurors "applying the law to the facts they find." Kelso said citizens have their say by electing and lobbying representatives who make laws. If people think a law -- in Rosenthal's case, the federal marijuana law -- is unjust, "the solution is not to undermine the jury system, the solution is to try to change federal law. "There is no right of nullification," he said. "They have a power solely as a consequence of the fact that normally we don't invade the jury's deliberative process." The California Supreme Court issued a pair of simultaneous, unanimous rulings in 2001 saying just that. "A nullifying jury is essentially a lawless jury," Chief Judge Ronald George wrote. "Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's case to depend upon the whims of a particular jury." But the court also strictly limited what can be done about it, leaving judges the power to intervene only when jurors flatly refuse to deliberate or to follow instructions -- a sort of "don't ask, don't tell" situation. Jones insists nullification doesn't violate equal protection, and said relying on elected lawmakers isn't enough. "Our legislatures... come together and enact laws often unaware of how those laws may be applied or accepted in their communities or by the country," she said, citing as an example the 1920s prohibition of alcohol. "It is the jury that is the final test of the validity of those laws in their application to the citizens." Sometimes nullification spurs legislative change, she said, noting New England juries refused to convict under 1850's federal Fugitive Slave Act requiring escaped slaves to be returned to Southern owners. Actually, that act wasn't repealed until 1864, after some states passed laws conflicting with it -- much as California's and seven other states' laws conflict with federal marijuana law -- and years after the Civil War had erupted. Letting juries decide a law's merit means depending on the values of any dozen citizens, which might require a very positive view of human nature. For example, when all-white Southern juries acquitted their peers of heinous, racist crimes against African-Americans and civil rights activists despite clear evidence, that was jury nullification, too. But Jones said newer and fairer jury selection procedures help eliminate such biases. "If we cannot depend upon 12 independent individuals to sit down in careful deliberations and come back with their best verdict to be rendered in the spirit of justice, fairness and mercy ... and to mitigate each others' prejudices and inclinations by their consultation as a group... then we both underestimate and fail to understand what our founding fathers left us as a heritage of justice in this country," she said. Contact Josh Richman at [EMAIL PROTECTED] . --- Secrecy is the cornerstone of all tyranny. Not force, but secrecy... censorship. When any government, or any church, for that matter, undertakes to say to its subjects, "This you may not read, this you must not see, this you are forbidden to know," the end result is tyranny and oppression, no matter how holy the motives. Mightily little force is needed to control a man who has been hoodwinked; Contrariwise, no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; The most you can do is kill him. -Robert A. Heinlein, Revolt in 2100 --- Smash The State! mailing list home http://groups.yahoo.com/groups/smashthestate --- And that, no matter how ugly, how insane, how despicable They make our world, We shall never surrender. We will not go quietly into the night, we shall fight to the end, to our last dying gasp, with every fiber of our beings, with every thought and action. We shall fight in the hills, we shall fight in the cities, we shall fight in the streets. ---------------------------------- Smash The State WWW http://groups.yahoo.com/group/smashthestate Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/ <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance�not soap-boxing�please! These are sordid matters and 'conspiracy theory'�with its many half-truths, mis- directions and outright frauds�is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRLgives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. CTRL gives no credence to Holocaust denial and nazi's need not apply. Let us please be civil and as always, Caveat Lector. ======================================================================== Archives Available at: http://peach.ease.lsoft.com/archives/ctrl.html <A HREF="http://peach.ease.lsoft.com/archives/ctrl.html";>Archives of [EMAIL PROTECTED]</A> http://archive.jab.org/[EMAIL PROTECTED]/ <A HREF="http://archive.jab.org/[EMAIL PROTECTED]/">ctrl</A> ======================================================================== To subscribe to Conspiracy Theory Research List[CTRL] send email: SUBSCRIBE CTRL [to:] [EMAIL PROTECTED] To UNsubscribe to Conspiracy Theory Research List[CTRL] send email: SIGNOFF CTRL [to:] [EMAIL PROTECTED] Om
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