Oakland pot growing conviction overturned

April 25, 2006

Bob Egelko, San Francisco Chronicle (CA)

The federal marijuana cultivation convictions of noted pot advocate Ed Rosenthal were overturned by a federal appeals court today because of a juror's phone call to an attorney friend, who told her to follow the judge's instructions or she could get in trouble.

The juror's unauthorized contact on the eve of the verdict in January 2003 was an "improper influence'' that denied Rosenthal a trial before an impartial jury, the Ninth U.S. Circuit Court of Appeals said in a 3-0 ruling granting him a new trial.

"Jurors cannot fairly determine the outcome of a case if they believe they will face 'trouble' for a conclusion they reach as jurors,'' said the opinion by Judge Betty Fletcher. "The threat of punishment works a coercive influence on the jury's independence.''

Rosenthal, a magazine columnist and author of books on marijuana-growing who is known as the "Guru of Ganja," was convicted of three felony charges in connection with plants he was growing in 2002 for patients served by the Harm Reduction Center, a San Francisco dispensary.

He faced a sentence of at least five years in prison under federal law, but U.S. District Judge Charles Breyer gave him only a day in jail, finding unusual circumstances. Breyer said Rosenthal had believed, mistakenly but reasonably, that he was not violating federal law because Oakland had named him an official agent in its drug program.

Rosenthal, who had already served his one-day sentence after his arrest, appealed his convictions. The Justice Department, which had sought a 6 1/2-year prison term, appealed the sentence. Because the convictions were overturned, the court did not rule on the government's appeal, but Fletcher said the panel was not inclined to change Rosenthal's sentence.

During the trial, Breyer refused to allow evidence about the intended medical use of the marijuana or about its possible legality under California's Proposition 215, a 1996 initiative that allowed patients to use the drug with their doctor's approval. Seven of the 12 jurors disavowed their guilty verdicts after the trial when they learned about the evidence that had been excluded -- that Rosenthal was growing marijuana for medical patients, and that he had been designated as an agent by the city of Oakland in its medical marijuana program.

Similar qualms about the jury's inability to consider the drug's medical use led to the pre-verdict phone call that was the basis of today's ruling.

In a sworn declaration, the juror said she had been troubled by the absence of evidence about medical marijuana and by the judge's instructions that jurors must consider only federal law. She said she telephoned a lawyer she knew and asked if she had to follow the instructions or if she had any leeway for independent thought.

She said the lawyer replied that she had to follow the instructions or she could "get into trouble.'' The juror said she shared the advice with another juror who shared her confusion.

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