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.