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April
10, 2003
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April 12,
2003
Rosenthal
Case Update
Judge
Delays Ruling on Medical Pot Mistrial
by
ANN HARRISON
For the second week in a row, U.S. District Judge
Charles Breyer has delayed ruling on whether convicted medical
marijuana grower Ed Rosenthal is entitled to mistrial.
Rosenthal's defense team contends that
Rosenthal's right to an impartial jury was violated when juror
Marney Craig revealed that she received advice from an attorney
friend during the trial that caused her to vote against her conscience.
"This court has a major question about whether due process
was or was not afforded in this case," said Rosenthal's
attorney Dennis Riordan. Part of the delay in the ruling has
been prompted by Craig's refusal to testify, which Riordan says
weakens Rosenthal's case. Craig stated in a written declaration
that she asked her attorney friend if she had to follow the judge's
instructions and decide the case only on the evidence, which
excluded any discussion of medical marijuana.
The attorney told Craig that she would
get into trouble if she disregarded the judge's instructions,
leading her to believe that she had no right to acquit. Craig
said she passed this information to another juror, Pamela Klarkowski,
a nurse from Petaluma. "I felt that there was only one choice,"
said Klarkowski when she heard the advice.
The jury later convicted Rosenthal on
three federal counts of marijuana cultivation and conspiracy.
Unless a mistrial is declared, Rosenthal faces a mandatory minimum
sentence of five years when he is sentenced in June. He remains
free on bail.
Craig's admission prompted an earlier
hearing on April 1, in which Judge Charles Breyer considered
holding Craig in contempt for refusing to obey his order against
discussing the case. Klarkowski testified that Craig had discussed
the lawyer's advice. Craig, a 58-year-old property manager from
Novato, California, has declined to name her attorney friend.
She was subpoened by the defense, but invoked her 5th Amendment
right against compelled self-incrimination unless the government
granted her immunity from prosecution.
During the second evidentiary hearing
on April 8, U.S. Prosecuter George Bevan declined to grant Craig
immunity from prosecution and said that portions of her declaration
that documents her uneasiness with the withholding of evidence
at trial were inadmissable. "Her declaration does not establish
misconduct by a juror," said Bevan.
Craig again invoked the 5th Amendment.
But Riordan said he knew of no case in the past 200 years where
a juror has been penalized for seeking outside legal advice during
a trial. "If the court overrules the 5th Amendment privilege,
and the compelled testimony is never used against her in any
ruling of the court, she will never have to fear that the testimony
will be used against her in any legal proceedings," said
Riordan.
The judge backed away from a contempt
charge. He said he was uncomfortable with Craig's contact with
the attorney, but suggested that she had asked him only a "derivative"
question regarding a point of law. "He said she has to follow
the law. Is someone prejudiced by a lawyer saying you have to
follow the law? I don't think so," said Breyer.
Riordan told Judge Breyer that Craig
was prejudiced by the attorney's inaccurate advice that a hung
jury can only result if a judge endorsed the idea in his instructions.
"You would never say you can only have a hung jury if I
tell you and if you vote the other way, you will get into trouble,"
said Riordan to the judge. "The point is that this juror
received information that she would never have gotten in an exchange
with the court." The judge replied that he would never attempt
to tell jurors when they could hang a jury, or even use the term
hung jury. Riordan asserted that any outside communication was
improper and Craig's testimony was needed to document her mental
state during deliberations after receiving the attorney's advice,
and that any such information should be admissable. But the judge
declined to compell testimony from Craig and discharged the juror
from further testimony suggesting that her declaration was sufficient.
He gave the defense team 10 days to submit further briefs supporting
their request for a retrial.
"These jurors were intimidated,"
said Rosenthal after the hearing. "They felt that if they
voted the way they really felt they should vote they could get
into trouble. If that is the way you are going to have a jury,
you might as well eliminate it and have the judge make a decision."
Under federal statute, a conviction can be overturned if a juror
is influenced during the course of a trial. The Supreme Court
has ruled that bias or fear influencing even a single juror is
grounds for dismissing a verdict.
Since learning after the trial that Rosenthal
was deputized by the City of Oakland, California to grow medical
marijuana, Craig and Klarkowski have joined with six other jurors
to denounce the verdict and call for jury reform. They said they
would not have convicted Rosenthal had they known the whole truth.
Riordan said after the hearing that while
Craig did not testify, he was satisfied that the defense had
noted for the record that Craig's mental state and her reaction
to the attorney's information was admissable. He noted that the
court accepted that she believed the lawyers advice. "Now
the issue is whether a juror who received that information and
formed those impressions can constitute a fair juror. There is
a presumption that they are not if they are getting instructions
from someone other than the judge." "We are not going
to offer evidence only on what she was told, we are going to
offer evidence on the fact that she accepted and believed what
she was told, which is a separate thing."
Juror misconduct is only one issue in
a series of legal challenges raised by Rosenthal's defense team
in their motion for new trial, including the charge that the
judge wrongly withheld evidence from jurors. But it remains Rosenthal's
strongest card. "One presumptively prejudiced juror is enough
to set aside a verdict so it is going to get a judge's close
considerations," said Riordan. "It is very, very difficult
to get a verdict overturned, but I feel confident that this is
a very interesting and powerful and unusual claim."
After the hearing, Craig declined to
discuss why she asserted her 5th Amendment rights. But she said
the advice she received from the lawyer left her feeling trapped.
"I felt like I was without a real choice, like I was not
free to vote my conscience."
On April 8, Craig said she was on her
way to Washington D.C. to testify on behalf of legislation proposed
by US Congressman Sam Farr that would allow defendants to mount
an affirmative defense in medical marijuana cases. Rosenthal
says he fears that such legislation, even if it is passed by
Congress, will be vetoed by President Bush. But Craig says the
government must be prevented from withholding evidence in cases
like Rosenthal's. The Truth In Trials Act was introduced on April
9 by U.S. Reps. Sam Farr (D-CA), Dana Rohrabacher (R-CA), and
Barney Frank (D-MA). It seeks to prevent the withholding of information
from jurors, such as those in the Rosenthal case who were not
allowed to consider that Rosenthal was growing medical marijuana
with the express authorization of the city of Oakland, California.
"It is a huge step in the right
direction to make medical marijuana a legal defense for cultivation,
it will eliminate all of what just happened in this trial and
all of what happened to us as jurors," said Craig. "In
a state where medical marijuana is legal and Feds come in and
say it's not legal, all of us, Ed Rosenthal, his family, the
defense team, the medical marijuana patients, all caregivers
and all jurors are caught in the middle."
Ann Harrison
is a freelance journalist, in the Bay Area. She can be reached
at: ah@well.com
Today's Features
Zoltan
Grossman
The Perils of Occupation: the Easier
the Victory, the Harder the Peace
Uri
Avnery
The Night After
Wayne Madsen
The Telltale Signs of Empire
David Krieger
Before You Become Too Flushed with Victory, Think of Ali Ismaeel
Abbas
Jeremy
Brecher
What Can the World Do Now That Tanks Prowl Baghdad?
Robert
Jensen
The Unseen War
Geoffrey
Neale
Ashcroft's War on the Constitution:
A Patriot Attack on America
Jeffrey
St. Clair
Last Tango in Baghdad
Hammond
Guthrie
Rumors of War
Joseph
Heller
Nately's Old Man
Steve
Perry
War Web Log 4/10
Website
of the Day
The
Third Page
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