Pubdate: Tue, 20 May 2003 Source: Oakland Tribune, The (CA) Copyright: 2003 MediaNews Group, Inc. and ANG Newspapers Contact: http://www.oaklandtribune.com/ Details: http://www.mapinc.org/media/314 Author: Josh Richman Bookmark: http://www.mapinc.org/people/Ed+Rosenthal MEDICAL POT ACTIVIST LOSES NEW TRIAL BID A federal judge on Friday denied Ed Rosenthal's motion for a new trial, clearing the way for the Oakland medical marijuana guru to be sentenced June 4. Rosenthal's claims of judicial error and juror misconduct didn't convince U.S. District Judge Charles R. Breyer of San Francisco to throw out his Jan. 31 conviction on three federal marijuana-related felony charges. "It wasn't unexpected -- he's had an agenda throughout this trial... he has shown his prejudice throughout," Rosenthal said Friday. "He had to bend the law, to find a crooked path to get to where he wanted to be." Rosenthal, 58, a renowned author and columnist on marijuana, grew pot under the auspices of California's medical marijuana law and related Oakland city ordinances. But federal law still prohibits all marijuana cultivation, possession and use, and federal agents arrested the self-described "guru of ganja" in February 2002. Breyer forbade Rosenthal from defending himself based on the state and city laws, ruling that federal law takes precedence and is the only relevant law in federal court. Most of the jurors who convicted Rosenthal, upon learned all the facts after the trial, apologized and now support him. Rosenthal's lawyers sought a new trial, arguing Breyer shouldn't have barred them from mounting a defense based on Rosenthal's belief that state and city laws immunized him from federal prosecution. They also argued the judge improperly excluded 19 people with pro-medical-marijuana beliefs from the jury, and later improperly instructed the jury about its right to "nullify," or vote their consciences instead of obeying the law. And they argued Rosenthal's right to a fair trial was violated by the misconduct of juror Marney Craig of Novato, who during the trial asked a lawyer friend whether she had to follow the law and Breyer's instructions explicitly. The friend told her she did, and she shared that with another juror. Breyer on Friday ruled no federal official ever misled Rosenthal into thinking he was immune from prosecution, and Rosenthal got the kind of jurors to which any defendant is entitled -- people whose personal beliefs won't bias them from following their court-given instructions to follow the law. Breyer also found his instructions to the jury didn't "preclude the jury from bringing its sense of justice to bear on its verdict, nor did they divest the jury of its inalienable right to nullify. As such, Rosenthal is not entitled to a new trial on this basis." And he rejected the argument "that a new trial is warranted because Craig's friend's exhortations to follow the law interfered with Craig's inclination to disobey it," an idea in conflict with the judicial duty to prevent nullification whenever possible. "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." Breyer has said he'll consider legal reasons to issue a sentence less than the five-year mandatory minimum prison term Rosenthal faces. Rosenthal has vowed an appeal. - --- MAP posted-by: Josh