Court overturns Rosenthal's marijuana convictions

By Jeff Shuttleworth, Bay City News Service

April 27, 2006

SAN FRANCISCO (BCN) - A federal appeals court overturned the marijuana cultivation convictions of pot advocate Ed Rosenthal today, ruling that a juror engaged in misconduct by asking an attorney friend for advice during deliberations.

In a 3-0 ruling granting Rosenthal a new trial, the Ninth U.S. Circuit Court of Appeals said the female juror's unauthorized contact with the attorney, who told her to follow the judge's instructions or she could get in trouble, was "an improper influence" that denied Rosenthal a trial before an impartial jury.

In an opinion written by Judge Betty Fletcher, the court said, "Jurors cannot fairly determine the outcome of a case if they believe they will face 'trouble' for a conclusion they reach as jurors."

The court said, "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."

Rosenthal, a 61-year-old Oakland man, was convicted in January of 2003 of three felony counts 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, but U.S. District Court Judge Charles Breyer gave him only a day in jail, finding unusual circumstances.

Breyer said Rosenthal had believed, mistakenly but reasonably, that Oakland had named him an official agent in its drug program.

In his appeal, Rosenthal contended he should have been allowed to argue in his trial that he honestly believed he was immune from federal prosecution because he was helping the city of Oakland carry out its medical marijuana program.

His attorney, Dennis Riordan, told the 9th Circuit at a hearing last September that the trial judge's refusal to allow that argument violated Rosenthal's Sixth Amendment right to a fair trial.

But the Ninth Circuit said, "We reject the premise that an ordinance such as the one Oakland enacted can shield a defendant from prosecution for violation of federal drug laws."

It said Rosenthal "cannot avail himself of the immunity provision."

In a sworn declaration, the juror who called her attorney friend said she was "troubled" as well as "frustrated and confused" by the absence of evidence about medical marijuana and 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 judge's instructions or had any leeway for independent thought.

Federal prosecutors also filed an appeal in the case, arguing that Rosenthal should be sentenced to two to five years in prison.

But the Ninth Circuit said that since it is overturning Rosenthal's convictions the government's challenge of the length of his sentence is "moot."

In a footnote, the court said new rulings on federal sentencing guidelines mean they would not have reviewed Breyer's decision on sentencing anyway.

U.S. Attorney's spokesman Luke Macaulay declined to say if prosecutors will seek a new trial for Rosenthal.

He said, "We're reviewing the court's decision and are considering the available options."

Riordan couldn't immediately be reached for comment.

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