Pubdate: Fri, 04 Apr 2003
Source: The Week Online with DRCNet (US Web)
Contact:  http://www.drcnet.org/
Details: http://www.mapinc.org/media/2514
Author: Phillip S. Smith, Editor
Bookmark: http://www.mapinc.org/people/Ed+Rosenthal

ROSENTHAL ASKS FOR NEW TRIAL, CITES JUROR VIOLATIONS

California medical marijuana provider and growing guru Ed Rosenthal,
facing a minimum of 10 years in prison after being convicted of
violating federal marijuana laws, was in court this week asking for a
new trial. Attorneys for Rosenthal asked federal Judge Charles Breyer
to grant a retrial after two jurors came forward to say they had
sought outside legal advice during the trial.

A majority of the jurors who convicted Rosenthal have since repudiated
their verdicts, stating publicly that they would not have convicted
him had they known his operation was legal under California's medical
marijuana law and sanctioned by the city of Oakland. Among them were
the two jurors who testified Monday that they had sought an opinion
from an outside attorney on whether they could vote their conscience
on the case.

Juror Pamela Klarkowski testified that she and fellow juror Marney
Craig discussed whether jurors could vote to override the law. "We
were traveling north and Marney said, 'Do jurors always have to follow
the law? Don't they ever have the opportunity to make a decision based
on conscience?'"

The two then agreed to hear the opinion of an unnamed attorney who was
a friend of Craig's, Klarkowski testified. He told them to "do as we
had been instructed, do as we had been told," said Klarkowski. "Given
instructions from the judge and all the evidence from prosecution,
which was pretty tidy, I felt that was it, I didn't have much choice."

Craig's testimony was cut short when she invoked her Fifth Amendment
right against self-incrimination out of concerns Judge Breyer would
hold her in contempt for violating his order not to discuss the case
with outsiders. That resulted in what Rosenthal's wife, Jane Klein,
described as a "legal scholars' delight," as Breyer, Rosenthal
attorney Dennis Riordan, and federal prosecutor George Bevan wrangled
over the question of immunity for Craig.

"Marney Craig was intimidated," Klein told DRCNet. "She was worried
she could be prosecuted and her attorney is asking for immunity in
exchange for her testimony. She doesn't want to reveal the name of her
attorney friend, and she doesn't want to be cited for contempt of
court. Usually the government grants immunity, but here it has no
interest in doing so. Judge Breyer wondered aloud whether, since
Marney was a juror of the court, whether he had any right or
obligation to grant her immunity," she said. "We continue to break new
legal ground."

Calling the two jurors' actions "a classic example" of jury
misconduct, Riordan said the outside legal advice tainted the juror's
deliberations. "Even if she [Klarkowski] had never talked to the other
juror, that could be sufficient grounds for mistrial."

Golden Gate Law School Dean Peter Keane told the San Francisco
Examiner Riordan's theory could be right. "If you have something that
comes into the jury room from outside, such as an outside legal
interpretation or a jury member going to a crime scene to see evidence
that was not presented, that is jury misconduct," Keane said.

We'll see if Judge Breyer agrees. He is not expected to rule on the
motion until next week. Meanwhile, said Klein, "Ed is doing really
well, considering. He feels very positive, he knows he has done
nothing wrong, and he believes that his case has widened the cast of
players on this issue."

That is true. Not only have the reverberations from the Rosenthal case
shaken some California politicians, notably Attorney General Bill
Lockyer, from their noncommittal stances toward the state's medical
marijuana law, but it has also generated coverage of the medical
marijuana issue in the national mass media. Still, until this or some
other appeal works, Ed Rosenthal will appear for sentencing in June
and report to federal prison soon after.

Visit http://www.green-aid.com for more information on the Rosenthal
defense fund or to contribute. 
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MAP posted-by: Richard Lake