Thursday, April 27, 2006

Ninth Circuit Recognizes Juror Independence

It's about time.

Ed Rosenthal was convicted of growing marijuana in a San Francisco federal courthouse in January of 2003. Ed was a large grower of marijuana for the medical marijuana dispensaries in California. The trial court judge, Charles Breyer, refused to allow the defense to make any mention of the fact that Ed was growing marijuana for medical use. This, in spite of the fact that Ed was licensed under State law, and deputized by the city of Oakland, to do exactly what he was doing.

While most legal commentators agree that Breyer made the right decision by foreclosing any mention of medical marijuana, I have argued elsewhere that Ed should have been allowed to present evidence that undercut the moral underpinnings of the law. If, as Old Chief v. United States holds, evidence which shows a conviction is morally reasonable is relevant, then evidence that a conviction is morally unreasonable is relevant. While numerous federal judges do hold this view, Breyer was not among them. Rosenthal's constitutional right to present his defense was stopped in its tracks.

What happened following the conviction was virtually unprecedented. At least half the jurors (and both alternates) held a press conference on the steps of the federal courthouse the week following their verdict, proclaiming that if they had known that Ed's was a medical marijuana case, they would not have convicted him.

The jurors appeared on televised news shows. The juror's rebellion was fodder for TV and radio talk shows, news reports, print articles, and, of course, the internet. Why were they so angry? If the jurors had been informed that this was a medical marijuana case, they would not have convicted. The foreman of the jury, Charles Sackett, said that "I think jury nullification is going to be part of the answer regarding states' rights in future cases."

"What happened was a travesty and it's unbelievable, unbelievable that this man was convicted. I am just devastated," said juror Marney Craig.

Marney Craig had considered nullification, but she checked with a lawyer friend who told her that she could get in trouble if she refused to convict on conscientious grounds. She discussed this with two other jurors, Pam Karkowski and Eve Tulley-Dobkin. They voted to convict due to fear of repercussions had they done otherwise. Based on these facts, Rosenthal's lawyers filed a Motion for New Trial based on juror misconduct. It was denied, because the only thing the jurors had been told was not to nullify. In Judge Breyer's words:

Rosenthal's argument would be that a new trial is warranted because Craig's friend's exhortations to follow the law interfered with Craig's inclination to disobey it. This novel proposition is fundamentally irreconcilable with the Court's responsibility “to forestall or prevent” nullification whenever it is possible to do so. Rosenthal has failed to identify a single published decision in support of this argument, and this Court will not be the first to write one.

The Sentence: Breyer Appeases his Critics

Ed was sentenced on June 4, 2003. While the federal government asked for a sentence of at least six years, Breyer, citing the "extraordinary, unique circumstances of this case," sentenced Ed to only one day in jail - a day he had already served. Was Breyer doing what he thought right - or was he trying to appease the jurors, and the public, that had rallied so strongly against his denying Rosenthal the right to present evidence of medical marijuana in court?

Both sides appealed - Ed appealing his conviction, and the Government appealing the one day sentence. The Ninth Circuit Court of appeals heard argument in the case in September, 2005 - and issued its decision yesterday, April 26, 2006.

Ninth Circuit: Can't Coerce Jurors to Follow Law

The Court, in a unanimous opinion written by Judge Betty Fletcher, held that Rosenthal was entitled to a new trial. The Court of Appeals disagreed with Judge Breyer over whether Juror Craig's conversation with a lawyer (who told her to follow the law) constituted prejudicial extraneous information. The Court held that the circumstances and nature of that conversation left it dubious whether the jurors were left to deliberate without undue outside pressure or influence. The (erroneous) information was that the jurors could get "in trouble" for failing to apply the law. The Court held:

Jurors cannot fairly determine the outcome of a case if they believe they will face “trouble” for a conclusion they reach as jurors. The threat of punishment works a coercive influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished.

The verdict was overturned because the jurors received outside pressure that coerced them into not committing jury nullification. So much for any claims that jury nullification is illegal.

BTW, the Court ended its opinion noting that it was not inclined to disturb the "reasoned analysis" which led to Rosenthal's one-day sentence. The sole remaining questions: will Rosenthal be retried? And if so, will another San Francisco jury ever convict him?

Saturday, April 08, 2006

Juror Abuse at the Hands of the State: A Case Study

Recently, someone emailed Jurygeek an appalling story from the Houston Chronicle. Seems a newly minted prosecutor in Harris County, Texas lost a jury trial in the 232nd District Court. His reaction was not to suck it up and take it as a learning experience, but to throw an infantile temper tantrum accusing the jurors of breaking the law. Unfortunately, this is not only normal operating procedures for the Harris County District Attorney's Office - it is a violation of the Texas Disciplinary Rules of Professional Conduct.

Disciplinary Rule 3.06 (d) reads:

(d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

Hmmm, seems to me that the statements attributed to Harris County Assistant D.A. Doug Richards fit that bill nicely. For example, "The jurors say Doug Richards told them, "You have violated your oath as jurors today," before he walked out of the jury room after the trial last week."

"He broke into a tirade about the strength of his case, and that we had screwed up," Yules [ a juror in the case] said . . . "He said we ignored the facts. Then he turned around and stomped out."

"He didn't like our verdict and he lost control," said juror Juanita A. Byers.

"He said we ignored the laws and the facts" said jury foreman Terri Hebert who, like her two colleagues, said she found the remarks "offensive."

Unfortunately, this is de rigeur in Harris County. Prosecutors here routinely admonish jurors who acquit as to why they were wrong, what evidence was not allowed to come in, the defendant's criminal history, etc. Clearly, this violates another rule: that they should not communicate with jurors in a way calculated to prejudice the jurors potential future jury service. But no prosecutor in Texas has ever been punished for this activity by the Texas State Bar.

Civil attorneys have been disciplined by the State Bar for exactly this sort of behavior. Yet prosecutors are given a free pass. Why? Why are prosecutors protected by the State Bar when their conduct involves harassing jurors and tampering with the jury system?

Perhaps Mr. Richards misconduct has become so public that it will have to result in some sanctions. We can only hope so. Those who seek to prosecute others must be held to the highest ethical and legal standards if the legal system is to retain a shred of respectability.

Friday, April 07, 2006


I received a telephone call earlier this week that one of my first clients had died. He was caught with two kilograms of cocaine in a federal case. We were unable to get the case to go away - he was the proverbial client caught red handed.

However, I got his sentence reduced on appeal. U.S. v. Miller, 179 F.3d. 961 (5th Cir. 1999). All good enough.

The problem was that Mr. Miller had a kidney transplant while on bond prior to pleading guilty. He was selling drugs in order to make money to pay his doctors. While in the custody of the Federal Bureau of Prisons, his special needs as a transplant patient were completely neglected. Consequently, his transplanted kidney failed and he had to go back on dialysis.

And now, he is dead.

Did the war on drugs kill him? Hard to say. That, and poverty, and kidney disease, and perhaps other problems. Our willingness to hand out pain and death instead of aid and education, however, must be considered a major factor.

Sometime, somehow, someway, we must re-think our approach to non-violent crime. The death of Mr. Miller should be, but won't be, the last needless casualty in our "get tough on crime" approach.