Medical Marijuana: Ed Rosenthal's Federal Cultivation Convictions Overturned 4/28/06

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A federal appeals court has thrown out the January 2003 conviction of "Guru of Ganja" Ed Rosenthal on federal marijuana cultivation charges. A three-judge panel of the US 9th Circuit Court of Appeals found that the verdict was tainted by a juror's phone call to an attorney friend, who told her she could get in trouble if she failed to follow the judge's instructions not to consider the crop's medical purpose.

Ed Rosenthal
courtesy SF Bay Area IndyMedia
Rosenthal, the author of numerous books on marijuana horticulture and a counterculture icon, was growing a crop in Oakland with the approval of city officials to provide it to medical marijuana patients at the San Francisco Harm Reduction Center when he was arrested by federal agents in 2002. After a trial where Judge Charles Breyer refusal to allow any mention of medical marijuana, Rosenthal was convicted on three felony counts.

After the trial, seven of the 12 jurors publicly disavowed their verdicts, saying they would have acquitted if they had known if was a medical marijuana grow. At sentencing, even though Rosenthal faced a mandatory minimum five-year prison sentence, however, Breyer sentenced him to one day. Rosenthal had reasonably -- if mistakenly -- believed his appointment as an agent of the City of Oakland shielded him from federal drug law, Breyer said.

Rosenthal appealed on numerous grounds, including the judge's disallowal of medical marijuana testimony, but the 9th Circuit found no error except with the advice-seeking juror. In a sworn declaration, that juror said the lack of testimony about medical marijuana during the trial and the judge's instructions that jurors must follow federal law troubled her. She called a lawyer friend, who advised her to follow the instructions of she could "get in trouble."

For the 9th Circuit, the question was whether the advice was an "improper influence" that raised the "reasonable possibility" of prejudicing the juror. In a word, yes: "Jurors cannot fairly determine the outcome of a case if they believe they will face 'trouble' for a conclusion they reach as jurors," the panel held. "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 case was remanded for retrial, and the government's motion challenging Rosenthal's sentence and seeking 6 ½ years was held moot pending any new conviction. But whether the feds will seek to prosecute Rosenthal again is questionable. And the 9th Circuit signaled strongly in a final footnote in its opinion it thought the one-day sentence was just fine. "We would not be inclined to disturb the [trial] court's reasoned analysis underlying its sentencing determination," it said.

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Issue #433 -- 4/28/06

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