Pubdate: Thu, 27 Apr 2006
Source: Sacramento Bee (CA)
Section: Pg A3
Copyright: 2006 The Sacramento Bee
Note: Does not publish letters from outside its circulation area.
Author: Claire Cooper
Bookmark: (Cannabis)
Boookmark:  (Ed Rosenthal)


Outside Influence On The Jury Affected 2003 Case, The 9th Circuit Determines.

SAN FRANCISCO - An appeals court Wednesday threw out the 2003 
conviction of a prominent marijuana activist, citing an outside 
influence on the jury that found him guilty of supplying hundreds of 
pot seedlings to medical patients through Bay Area dispensaries.

The decision by the 9th U.S. Circuit Court of Appeals awards Edward 
Rosenthal a new trial if the federal government decides to pursue its 
case against him.

He's entitled to it, said the court, because "extraneous information" 
obtained by one juror and passed on to another may have affected the 
verdict. An attorney-friend told the juror she would "get in trouble" 
if she considered the medical connection that jurors correctly suspected.

All evidence of it had been barred from the case, and the trial 
judge, U.S. District Judge Charles Breyer of San Francisco, 
instructed the jury to apply only the federal anti-pot laws.

"Jurors cannot fairly determine the outcome of a case if they believe 
they will face 'trouble' for a conclusion they reach as jurors," 
Senior Circuit Judge Betty Fletcher of Seattle wrote in the unanimous 
opinion. "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."

The appeals court also, in effect, ruled against the government's 
appeal of Rosenthal's unusual one-day sentence. Federal prosecutors 
contended it was far too short for his marijuana cultivation and 
conspiracy convictions.

With the convictions set aside, the sentencing issue became moot. But 
the appeals court said in a footnote that it would "not be inclined 
to disturb (Breyer's) reasoned analysis." Breyer had ruled that "just 
punishment" required "substantial departure" from the federal 
sentencing guidelines.

Rosenthal and the medical marijuana movement were the losers, 
however, on the broadest issue raised by the defense appeal - whether 
Oakland immunized Rosenthal from federal prosecution when it 
deputized him to grow pot for people entitled to use it under 
Proposition 215, California's medical marijuana law.

Even under the state law, the judges said, only patients and their 
primary caregivers are permitted to grow pot. That part of the 
decision would restrict defense options in a retrial.
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