Pubdate: Thu, 27 Apr 2006
Source: Oakland Tribune, The (CA)
Copyright: 2006 MediaNews Group, Inc. and ANG Newspapers
Author: Josh Richman, Staff Writer, Inside Bay Area
Note: the opinion, 15 pages$file/0310307.pdf
Bookmark: (Rosenthal, Ed)
Bookmark: (Marijuana - Medicinal)


A federal appeals court on Wednesday overturned the felony 
convictions of "Guru of Ganja" Ed Rosenthal of Oakland, finding juror 
misconduct warrants a new trial for the renowned marijuana activist and author.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San 
Francisco found a juror's conversation with an attorney-friend during 
deliberations compromised Rosenthal's right to a fair trial and verdict.

But while the ruling is good news for Rosenthal, it's not terribly 
good news for medical marijuana advocates. The appeals court rejected 
Rosenthal's claim of immunity from prosecution as an officer of 
Oakland who grew the drug under the city's medical marijuana ordinance.

"Although the city of Oakland purported to authorize Rosenthal to 
manufacture marijuana, he was not 'duly authorized' to do so, as 
state law does not allow the manufacturing of marijuana by 
individuals other than the patient or his primary caregivers," 
Circuit Judge Betty Fletcher wrote for herself and circuit judges 
Marsha Berzon and John Gibson.

Furthermore, she wrote, growing marijuana for medical use doesn't 
amount to "enforcement" of any law under the immunity statute. "The 
state law does not give any person a right to obtain medical 
marijuana from any particular source, and the Oakland Ordinance does 
not mandate that Rosenthal manufacture marijuana."

Rosenthal couldn't immediately be reached for comment.

Luke Macaulay, spokesman for the U.S. Attorney's office in San 
Francisco, said Wednesday prosecutors haven't yet decided whether to 
retry Rosenthal, seek a rehearing by a larger 9th Circuit panel, or 
take other action. "We are reviewing the court's decision and 
considering the available options."

Famed for his marijuana cultivation books and the "Ask Ed" column he 
used to write for High Times magazine, Rosenthal was convicted of 
three marijuana-growing felonies in 2003, more than a year after 
federal agents raided sites including his Oakland home, an Oakland 
warehouse in which he was growing marijuana, and a San Francisco 
medical marijuana club he supplied.

Joseph Elford, one of Rosenthal's attorneys, argued to the appeals 
court last September that Rosenthal deserves a new trial because of 
juror misconduct. During deliberations, a juror troubled by the idea 
of convicting Rosenthal consulted a friend -- who happened to be an 
attorney -- and was advised that she could "get in trouble" for 
deviating from the judge's instructions. She shared that advice with 
another juror.

"Jurors cannot fairly determine the outcome of a case if they believe 
they will face 'trouble' for a conclusion they reach as jurors," 
Fletcher wrote.

"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."

Not only is there a "reasonable possibility" of prejudice, she wrote, 
"but the government has not succeeded in rebutting the presumption 
that a new trial is warranted. Accordingly, we reverse the district 
court and order a new trial."

Marney Craig of Novato, the juror who had the fateful conversation, 
was among a majority of jurors who after rendering their verdict went 
public with their support and sympathy for Rosenthal and their demand 
for a new trial. They said they felt they'd been railroaded into 
convicting him, and they apologized for the verdict. Craig couldn't 
be reached Wednesday.

Rosenthal's attorneys also had claimed prosecutor George Bevan 
committed misconduct when discussing the investigation's aims with 
grand jurors who eventually indicted Rosenthal, in that he allegedly 
lied about not targeting medical marijuana clubs. The appeals court 
agreed with Breyer that this wasn't the case.

It also rejected the claims that Breyer ruled erroneously on a 
defense objection to certain evidence, and that Breyer erred in 
instructing the jury regarding its right to engage in nullification 
- -- refusing to convict according to the law, instead acquitting the 
defendant as a matter of conscience, common sense or the perceived 
unjustness of the law.

The government had cross-appealed the case, claiming U.S. District 
Judge Charles Breyer erroneously found Rosenthal eligible for a 
"safety valve" exception to sentencing guidelines in imposing only a 
single day of jail time as the sentence. In light of the overturned 
convictions, the appeals court dismissed that argument as moot. 
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MAP posted-by: Richard Lake