Pubdate: Thu, 27 Apr 2006
Source: Argus, The (Fremont, CA)
Copyright: 2006 ANG Newspapers
Author: Josh Richman, Staff Writer
Note: the opinion, 15 pages$file/0310307.pdf
Bookmark: (Rosenthal, Ed)
Bookmark: (Marijuana - Medicinal)


Federal Appeals Court Overturns Activist's Felony Convictions Because
of Juror Misconduct

A federal appeals court on Wednesday overturned the felony convictions
of "Guru of Ganja" Ed Rosenthal of Oakland, citing juror misconduct
that warrants a new trial for the 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 a lawyer friend during
deliberations compromised Rosenthal's right to a fair trial and
verdict. But while the ruling is good news for Rosenthal, it is not
good for medical marijuana advocates. The appeals court rejected
Rosenthal's claim of immunity from prosecution as a city officer under
Oakland'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

Furthermore, she wrote, growing marijuana for medical use does not
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."

Bruce Mirken, communications director for the Marijuana Policy
Project, said "the bottom-line end result is that it probably doesn't
change the legal climate very much."

"People who are protected under state law remain vulnerable under
federal law and still aren't likely to be able to tell their whole
story to the jury," he said. "People are being accused of a crime and
can't explain why they did it. ... I think it violates most Americans'
basic sense of fair play."

Rosenthal could not be reached for comment Wednesday; he and his
attorneys are expected to hold a news conference today.

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

Known for his marijuana cultivation books and the "Ask Ed" column in
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 pot and a San Francisco medical marijuana club
he supplied.

Medical use of marijuana on a doctor's recommendation is legal under
state law, but federal law still prohibits it.

Rosenthal was barred from discussing his medical motive at

During deliberations, a juror troubled by the idea of convicting
Rosenthal consulted a friend who happened to be a lawyer and was
advised that she could "get in trouble" for deviating from the judge's
instructions. She shared that advice with another juror.

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 support and sympathy for Rosenthal. They said they had
been railroaded, apologized for the verdict and demanded a new trial.
Craig could not be reached Wednesday.

The government had cross-appealed, 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.

Prosecutors wanted to put Rosenthal behind bars for years. Breyer said
he believed Rosenthal had believed in good faith that he was immune
from prosecution and so deserved a lesser sentence, but he warned that
defendants in future cases would not fare so well.

Because it overturned the convictions, the appeals court did not
address the sentencing directly. In a footnote, however, the panel
said it "would not be inclined to disturb the court's reasoned
analysis underlying its sentencing determination."

In a statement issued Wednesday, Joseph Elford -- one of Rosenthal's
attorneys, and legal counsel to Americans for Safe Access -- said the
footnote "is the panel's way of telling the federal government not to
bother with a new trial. Why waste more taxpayer resources when the
best you can hope for is a conviction but no additional jail time?"

The appeals court upheld Breyer's rejection of Rosenthal's claims that
prosecutor George Bevan committed misconduct by misleading grand
jurors who eventually indicted Rosenthal regarding the government's

It also rejected Rosenthal's claims that Breyer erred in rejecting a
defense objection to certain evidence and 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.
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