Josh Richman, Argus Online ,
San Francisco -- A federal juror who voted to convict Oakland medical marijuana guru Ed Rosenthal in January had called an attorney friend to ask whether she had to follow the judge's instructions and strictly obey federal law, two other jurors testified Tuesday. But although the juror who made the call -- Marney Craig of Novato -- was the person who first told attorneys about it, on Tuesday she invoked her Fifth Amendment right to refuse to testify about it lest she incriminate herself. That leaves Rosenthal's defense in legal limbo until the hearing continues next Tuesday.
Federal evidence rules don't let lawyers or judges in situations like this ask jurors what happened during deliberations -- whatever happens in the jury room stays secret. But they can ask jurors about things that happened before deliberations began, in order to give the judge some basis to decide whether those events could've unfairly biased the deliberations. Rosenthal's lawyers say they hope U.S. District Judge Charles Breyer will find Craig's improper contact affected her own ability to deliberate -- and perhaps that of fellow juror Pamela Klarkowski of Petaluma as well, by telling her about the call -- severely enough that Rosenthal's convictions must be set aside and a new trial granted. Attorney Dennis Riordan admitted Tuesday it's a longshot, something that happens in one in many thousands of cases. But Rosenthal -- convicted of three marijuana felonies and facing five to 40 years in prison when he's sentenced June 4 -- is making this one of several post-trial issues he's raising either to have his conviction set aside or to develop a record for the appellate courts. Rosenthal claims he was growing marijuana in accordance with California's medical marijuana law and as an officer of the Oakland Cannabis Buyers Cooperative, under the protection of a city ordinance. But jurors weren't told any of that: U.S. District Judge Breyer deemed any mention of state and local laws irrelevant because federal law -- the only law recognized in federal court -- still deems marijuana illegal. Many jurors who learned of Rosenthal's protection by Oakland's ordinance only after rendering their verdict expressed outrage and regret; had they known earlier, they said, they would have acquitted Rosenthal despite the evidence against him. Yet on Tuesday, Craig -- now represented by attorney Mary McNamara of San Francisco -- refused to testify about that potentially fateful phone call. She has written a sworn declaration saying that she made the call; that her lawyer friend told her she had to follow the judge's instructions explicitly; and that she later shared that information with Klarkowski. But without Craig's verbal testimony in court, the defense and the prosecution can't probe whether that outside contact influenced her verdict vote. Riordan told Breyer that Craig apparently is concerned she'll be forced to disclose her lawyer friend's name, something she doesn't wish to do. Riordan and McNamara also indicated that Craig may fear her testimony about what she did could be used by prosecutors to bring criminal misconduct charges against her. Parts of Craig's story emerged anyway Tuesday. Klarkowski testified that while riding home with Craig from a day of trial testimony, Craig told her she was considering calling her friend for advice on the law. And while headed for court to start deliberations Jan. 31, Craig told Klarkowski what her lawyer friend had said. Another juror, Eve Tulley-Dobkin, testified Tuesday she had heard Craig just minutes after the verdict was rendered tell someone that she had talked to her lawyer friend.