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
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
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
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
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
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
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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