Seven Jurors Revolt After Learning A Federal Judge and Federal Prosecutors Duped Them Into Convicting An Innocent Man
By Hans Sherrer
For Justice Denied Magazine
(Feb. 28, 2003)
Within days after convicting Ed Rosenthal of violating federal drug charges, eight jurors decried the verdict as wrong, and that Federal Judge Charles Breyer and prosecutors with the U.S. Attorney’s Office duped them into falsely convicting an innocent man.
On January 31, 2003, a 12 person federal jury in San Francisco unanimously voted to convict 58 year-old Ed Rosenthal of three federal drug crimes: maintaining an Oakland warehouse to grow marijuana, growing more than 100 marijuana plants, and conspiring to cultivate marijuana. 1
Based on the number of marijuana plants involved, Ed Rosenthal is subject to being given a minimum of five years in prison at his sentencing scheduled for June 4, 2003. 2
During jury selection, the trial, and while deliberating Ed Rosenthal’s fate, the jurors thought they were participating in a cut and dried case of a middle-aged man involved in growing a large number of marijuana plants for his own profit. The jury’s verdict reflected its acceptance of the government’s painting of Rosenthal as a major drug manufacturer who is a menace to society.
After the trial, however, the jurors learned the truth bore no relationship to the prosecutor’s courtroom presentation they relied on to convict Ed Rosenthal. What was concealed from them is that under the authority of California’s 1996 voter approved Proposition 215, the City of Oakland deputized him to grow marijuana for medicinal use proscribed by doctors to ill and dying people. 3
Yet during the two week trial federal Judge Charles R. Breyer repeatedly refused to allow the defense to make any mention, present witnesses, or introduce evidence supporting that what Ed Rosenthal was doing was legal under California law, that he was a duly deputized agent of the City of Oakland, and that he was assisting doctors duly authorized under California law to engage in the humane activity of helping to alleviate the pain and suffering of sick and dying people. 4 The facts underlying his benevolent intent and motives were hidden from the jury. 5 It probably seemed odd to the jury during the trial and their deliberations that Mr. Rosenthal didn’t present much of a defense considering the seriousness of the charges against him. Yet unbeknownst to them he had vainly been trying to defend himself, but his ability to do so was gutted by Judge Breyer’s evidentiary and testimonial rulings that aided the government. 6
Judge Breyer’s refusal to let Mr. Rosenthal present a defense to the criminal charges against him was based on his prosecution under federal law. Federal authorities consider state law to be subservient to federal law when the two conflict, and Judge Breyer used that presumption to justify his actions. 7 It is noteworthy given the prosecution’s dark portrayal of Ed Rosenthal as a near Mafioso like figure and the vehemence with which he was prosecuted and convicted of conspiracy and other charges, that none of the doctors he was assisting, none of the Oakland city officials he was working with, and none of the California state officials overseeing implementation of Proposition 215 he was acting under, were prosecuted for their relationship to what he was doing. Judge Breyer was both well aware of that glaring inconsistency in the government’s case, and why it was necessary: if those numerous well respected people had been prosecuted as Ed Rosenthal’s co-defendants it would have made the concealment of what he was doing all but impossible, and hence his acquittal, and theirs, would have been highly probable.
Thus the facts Judge Breyer concealed from the jury were the most important ones for them to know, because they established that Ed Rosenthal isn’t a criminal but a concerned person that men, women and children throughout society can admire for his willingness to go out of his way to help people less fortunate than he is. 8
That is exactly how the jurors saw things when they learned the truth outside the courtroom after the trial was over. Seven of the twelve jurors that voted to convicted Rosenthal, and one of the two alternates publicly let it be known within days after the trial ended that they would have voted to acquit him if the judge had allowed the truth to be told in the courtroom, and if the prosecutor had told the truth about Ed Rosenthal when he had the opportunity to do so. Jurors are the triers of facts in a case. To at least the eight jurors that have publicly expressed an opinion, Ed Rosenthal is plainly innocent based on the facts Judge Breyer and the prosecutors worked hand in glove to conceal from them, as they are applied to the law given them by the judge prior to beginning their deliberations. In other words, based on how the judge instructed the jury to apply the law to the facts, at least eight jurors have made written or verbal statements that the facts the judge concealed from them make Ed Rosenthal’s innocence self-evident to them. 9
Given that the majority of the jurors have been willing to publicly express that Ed Rosenthal is innocent, there is certainly reason to believe that in the confines of the jury room the jury would have unanimously agreed to acquit him if they had been allowed to hear the truth in the courtroom.
One juror, 58 year-old property manager Marney Craig was so distressed at convicting a man she found out after the trial is innocent, that she wrote an op-ed article for the San Jose Mercury News in which she said: “Last week, I did something so profoundly wrong that it will haunt me for the rest of my life. I helped send a man to prison who does not belong there.” 10
The jury foreman, 51 year-old Charles Sacket echoed those sentiments in a letter of apology to Rosenthal he read several days later on the steps of the Courthouse, in which he barely veiled accusing Judge Breyer of rigging the trial: “I never want to see this happen again … I must admit that court played unfairly.” 11 He also said, “I ask myself how could this have happened? The answer is that we as a jury were kept in the dark.” 12
Those and other jurors made it plain on the day of Ed Rosenthal’s bail hearing four days after they had convicted him, that they knew they had been duped into rubber stamping Judge Breyer and the U.S. Attorney’s Office’s carefully orchestrated legal lynching of a man the juror’s belatedly learned is innocent. Five of the jurors and one alternate appeared in court to support Ed Rosenthal’s release on bail, and two others had statements read at a press conference held outside the courthouse expressing concern about the injustice they had been tricked into being a part of. 13
On February 4, 2003 Ed Rosenthal was released on a $500,000 bond pending the outcome of his direct appeal. During the appeal process the political and ethical aspects of Ed Rosenthal’s wrongful conviction may prove to be far more important than the legal issues it involves. The law is remarkably elastic in how it can be interpreted by judges to satisfy whatever outcome they desire. 14 Thus the federal appeals court judges can easily find a basis to ignore any case law supporting the superior position of federal law over conflicting state law if they decide it is politically advantageous to do so. Appeals court judge’s typically gloss over errors and unethical conduct by a trial judge when reviewing their performance during a trial. However national publicity about Judge Breyer’s blatant shepherding of Ed Rosenthal’s case in a manner supportive of the U.S Attorney’s Office scheme to manufacture his conviction by misleading the jury, may be too politically dicey for them to ignore.
A majority of Ed Rosenthal’s jurors have expressed solidarity with his assessment that Judge Breyer conducted a “Kangaroo” court. 15 They recognize he was victimized by an Americanized version of the show trials that have been staged to legitimize the conviction of innocent people in numerous countries for decades. Many show trials were conducted during the mid-1930s when Communist Party members that had fallen out of favor with Josef Stalin’s regime were convicted by rigged proceedings that typically resulted in a death sentence. 16 Hitler also had his share of show trials. February 22, 2003 was the sixtieth anniversary of one such sham trial that resulted in the wrongful conviction and execution of Hans Scholl, Sophie Scholl and Christopher Probst for treason. 17
Judge Breyer performed as politically dutiful as the distinguished Judge Roland Freisler did in the trial of the Scholls and Probst. 18 In the same way show trials in other countries are remembered as low watermarks of a judge using a courtroom to perpetrate a terrible injustice in the name of political expediency, the trial of Ed Rosenthal has all the earmarks of being long remembered as an example of this countries judiciary at its worst.
1 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm.
2 However, his sentence could be enhanced by various factors exacerbating the seriousness of his offense so that he could get a statutory maximum of life in prison. Marijuana is a schedule I controlled substance under federal law, the same as heroin and LSD, whereas, cocaine and injectable methamphetamines are considered less dangerous schedule II substances, and have correspondingly lesser punishments associated with convictions of manufacturing and/or distributing them.
3 How the Feds duped jurors in marijuana trial, Clarence Page, Chicago Tribune, Op-Ed page, February 9, 2003. Proposition 215 is also known as the Compassionate Use Act.
4 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm.
5 The U.S. Attorney’s Office (federal prosecutors) has adopted the position that anyone acting under authority of Proposition 215 is acting criminally, even though it is not only the law in the State of California, but it was enacted by a direct vote of the people, not by California politicians.
6 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm, and others.
7 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm.
8 Ed Rosenthal made an easy target for the prosecutors to smear because he is one of the world’s leading authorities on marijuana and the author of numerous books about it. The jury was allowed to hear that, which could be argued was irrelevant to the substance of what he was doing on behalf of the City of Oakland, doctors, and sick and dying people under the authority of Proposition 215. However the judge’s allowance of that “evidence” had significant smear value when combined with the other testimony and documentary evidence the judge allowed that falsely characterized what Ed Rosenthal was doing.
9 See e.g., How the Feds duped jurors in marijuana trial, Clarence Page, Chicago Tribune, Op-Ed page, February 9, 2003. Proposition 215 is also known as the Compassionate Use Act.
10 How the Feds duped jurors in marijuana trial, Clarence Page, Chicago Tribune, Op-Ed page, February 9, 2003.
11 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm.
12 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm.
13 How the Feds duped jurors in marijuana trial, Clarence Page, Chicago Tribune, Op-Ed page, February 9, 2003.
14 For an excellent analysis by a law professor that contrary to popular myth the U.S. is ruled by the opinions of the men in power that are referred to as judges, and not any adherence to lofty principles of law, see e.g., The Myth of the Rule of Law, John Hasnas, Wisconsin Law Review, Volume 1995, p. 199, esp. 200, 215.
15 Rosenthal remains free as pot case jurors decry their own verdict, Angela Watercutter (staff), Associated Press, February 4, 2003, http://www.bayarea.com/mld/mercurynews/news/local/5097432.htm.
16 An excellent intense fictionalized account of the Communist Show Trials by a man who at the time was a communist, is Darkness At Noon, Arthur Koestler, Bantam, 1976.
17 For information about the prosecution and trial of the Scholls and Christoph Probst, see e.g., A Noble Treason: The Revolt of the Munich Students Against Hitler,” Richard Hanser, G.P. Putnam’s Sons, NY, 1979, pp. 319, ISBN: 0-399-12041-6. See also the excellent website, http://www.jlrweb.com/whiterose/.
18 Judge Breyer blatant politicism in Ed Rosenthal’s case is a classic example of the political nepotism underlying all federal judicial appointments. That a person’s legal knowledge or ability is secondary to backroom political wheeling and dealing is amply demonstrated by Charles Breyer’s appointment as a federal judge by President Clinton on November 12, 1997. Mr. Breyer’s brother is Supreme Court Justice Stephen Breyer. With less than 1,000 federal judges in the U.S., only an overtly political selection process would enable the odds to be beaten against brothers joining that group, considering it is a far more elite club than that of people who have survived being struck by lightening. Every year at least 1,500 people survive being struck by lightning – more than the total number of federal judges appointed for life, while 100-300 are killed each year, more than the average number of federal judges appointed each year. Source: Ask The Scientist at: http://newton.dep.anl.gov/askasci/gen99/gen99019.htm.
Seven Jurors Revolt 2-23-03 by Hans Sherrer