The federal government successfully charged and convicted a man for growing marijuana. However, the defendant, Ed Rosenthal, was growing the stuff pursuant to the City of Oakland’s ordinance implementing California’s medical marijuana initiative, Proposition 215. The federal judge ruled that the medical marijuana defense was irrelevant and prevented defense attorneys from informing the jury about it. This ruling was almost certainly legally correct, as the US Supreme Court has already held that federal drug laws trump state laws, specifically disavowing California’s Prop. 215 as a defense to federal charges.

Nonetheless, when the jurors found out about it, four of them said they never would have convicted if they had known, and issued statements in support of Mr. Rosenthal. “I really feel manipulated in a way,” one of the jurors said. “Had I known that information, there is no way I could have found that man guilty.”

If the man had been accused of bank robbery, and the prosecution tried to introduce evidence that he’d stolen money before, a defense attorney would move to keep the evidence out, saying that just because he’s a thief doesn’t mean that he did this bank robbery. Jurors might acquit, but be angry they did if they learned the man was already a known criminal. But the law protects against juries convicting someone based on inferences drawn from the type of person the defendant is. What’s clearly relevant to humans is sometimes irrelevant or inadmissible in the law.

So it is with motive. He had no motive, they say, but of course no one needs to prove a motive, and your motive is usually no defense to otherwise illegal behavior. An interesting case. It will be interesting to see whether the DOJ brings other cases against medical marijuana people. One of my students suggested that the Ashcroft justice department probably doesn’t care what a bunch of San Francisco jurors think about his prosecutions.
A list of cases of innocent people convicted, a favorite topic here, from TalkLeft, a blog with a liberal view on our systems of justice and injustice.
The Stanford Cyberlaw Clinic filed comments today with the United States Sentencing Commission in response to the Commission´┐Żs request for public comment. In summary, the commentators position is that computer crimes are currently punished more harshly than similar economic crimes so no increase in sentences is warranted. Additionally, the commentators point out several serious problems with the way cybercrime sentencing is currently done, including the application of a special definition of loss that includes unforseeable damages. To read more, you can obtain the comments from the Stanford Center for Internet and Society site.

A few years ago, I represented a very nice gentleman who had worked as the system administrator at a small ISP. The ISP was also in the bookselling business. The executives decided to find out what books its book dealer-customers were purchasing from Amazon and develop at top 100, 000 list. To gather the information, they collected email order forms as they queued up on the ISPs servers before being dispatched to the individual user email folders. The company was charged with violating 18 U.S.C. 2511, the wiretap law for intercepting emails. My client was also charged, for writing the code that collected the emails. Both the company and my client pled guilty. The company paid a fine and my guy went on probation. One of the executives who gave the order decided to fight it. Just last week, the judge ruled that collecting the emails was not a violation of the wiretap law and dismissed the charges. Congratulations to the judge who figured it out and the attorney (and client) who were brave enough to risk challenging the law.

Interestingly enough, the prosecutor was the same one who pursued Brian LaMacchia for his warez board under the wire fraud statute. That case was also dismissed, on the grounds that, at the time, non-commercial copyright infringement was not criminal. Subsequently, Congress modified the copyright law to criminalize non-commercial infringement. Congress also recently modified 18 U.S.C. 2701 (See section 225 of the USAPA), which prohibits unauthorized access to stored electronic communications, making it a felony. The collection of the book emails is arguably prohibited by that statute, but at the time of the offense, the maximum punishment was a year in jail, often considered too minor for a federal prosecution. I guess this prosecutor was a little ahead of her time.

Stefan Puffer was acquitted Friday in a case charging that he illegally hacked into a county wireless network when he demonstrated to his former employer how the network was insecure. The jury appeared to reject the allegation that Puffer caused over $5000 in damage, an element of the crime at the time. This is why we NEED to have damage be an element of the offense, to ward off prosecutions for trivial and incidental access to computer networks that just happens to embarrass someone important. However, the more fundamental problem remains. The definition of “unauthorized access” is horribly broad and can lead to prosecutions for spam, bots, spiders, wireless, public data mining, etc. For more, see the comments we filed on behalf of the NACDL and others to the U.S. Sentencing Commission.