Mistrial? Rosenthal Jurors Say They Received Outside

by ANN HARRISON

SAN FRANCISCO. Lawyers for convicted medical marijuana grower Ed Rosenthal say he is entitled to a new trial because two jurors in the case received outside legal advice that compromised their ability to make an impartial judgment.

Jurors Marney Craig and Pamela Klarkowski have been subpoenaed by Rosenthal’s attorneys who today presented U.S. District Judge Charles Breyer with evidence of juror misconduct.

Judge Breyer repeatedly admonished the jurors to judge the case according to federal law, and consider only the evidence presented in court. But Craig has revealed that during the trial, she contacted a friend who is a practicing attorney. Craig believes that her decision to seek his advice was not improper because she revealed no details about the case, and asked a narrow question about a point of law.

”I simply asked him if I had to follow the judge’s instructions, or if I had any leeway at all for independent thought,” said Craig in declaration. “His answer was that I definitely did have to follow the judge’s instructions, and that there was absolutely nothing else that I could do.”

Craig said that her friend, whom she declined to name, further warned her that she could get into trouble if she strayed from the judge’s instructions. She passed this information on to Klarkowski, who said in her declaration that the two women had discussed whether past cases challenged the law.

Craig and Klarkowski later voted with their fellow jurors to convict Rosenthal on three federal counts of marijuana cultivation and conspiracy. Rosenthal remains free on a $200,000 cash bond, but faces a mandatory minimum sentence of five years in federal prison when he is sentenced in June.

“In order for a new trial to be warranted, we simply have to show there is a reasonable possibility that the independent judgment, or freedom of action, of one or more of the jurors was affected in some way,” said Rosenthal attorney Joe Elford. ”We have met that standard because Marney Craig was given what we consider to be erroneous legal advice which suggested she would get into trouble if she refused to convict.”

The defense team has until March 14th to present a motion for a new trial. But when Rosenthal’s attorneys alerted Judge Breyer of potential juror misconduct on February 20th, he gave the defense just three business days to produce evidence of impropriety, and reasons for requesting hearing to determine if the information warranted a new trial. Government prosecutors now have until March 5th to respond. The San Francisco U.S. Attorney’s Office declined to comment on the potential impact of juror prejudice in the case. But the government must show beyond a reasonable doubt that the jurors are lying, or that the extraneous influences or improper contact was harmless.

Craig confirms that the advice she received during the trial did effect her actions in the courtroom. She said she was upset to discover after the verdict that she had the power to reject the judge’s instructions, and vote to acquit Rosenthal if she felt the law itself was unjust. She said she wished someone had told her about the right to jury nullification.

“Had I known that it existed, I think it would have given me the confidence to pursue other options both in my own mind, and in deliberations talking to other jurors,” said Craig from her home in Novato, California. “I think we might not have been able to come up with a unanimous verdict, I think it is entirely likely.”

Craig says she sought her friend’s advice because while Rosenthal was accused of conspiring with a medical marijuana club, Judge Breyer forbade the issue of medical marijuana to be presented at trial. Craig said in her declaration that this left her feeling “frustrated and confused.”

”We don’t condone what the jurors did,” said Rosenthal attorney Bill Simpich. “But at the same time, we are deeply sympathetic that they are torn between conscience and duty, and in that vein we feel we have a right to a new trial given this unparalleled situation.”

Craig and Klarkowski were among the seven jurors who later said they were misled when Judge Breyer blocked the defense from explaining that Rosenthal was growing medical cannabis under California’s Compassionate Use Act (Prop. 215). Judge Breyer ruled that because all cannabis cultivation is illegal under federal law, Rosenthal’s motivations for growing the marijuana were irrelevant. Jurors said they were outraged to discover after the trial that Rosenthal had been deputized by the City of Oakland, California to grow medical cannabis for patients.

During Rosenthal’s trial, his attorneys filed a series of motions citing other grounds for a new trial. These included Judge Bryer’s rejection of federal immunity provisions granted to Rosenthal, and the judge’s refusal to permit testimony from DEA supervisor Mike Heald.

But Elford said the defense alerted Judge Breyer to the juror misconduct because they wanted to separate this argument from others. He expressed concern that Judge Breyer will decide the issue before the defense has an opportunity to fully brief it in their motions for a new trial. If Judge Breyer rules that the evidence of juror impropriety does not support a new trial, Elford says all defense motions will be presented to the Ninth Circuit Court of Appeals.

In the meantime, Elford says the defense has no scheduled reply or oral arguments to respond to the government’s interpretation of the juror’s actions. But he says the defense will cite numerous cases in both the Ninth Circuit and the U.S. Supreme Court where outside influence on jurors overturned convictions and resulted in new trials. ”The jury misconduct issue is by far the strongest grounds for a new trial,” said Elford. ”The other issues that have already been raised have been denied by the court.”

ANN HARRISON is a freelance journalist, in the Bay Area. She can be reached at: ah@well.com

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