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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 […]

Judge Delays Ruling on Mistrial in Medical Pot Case

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