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CounterPunch
February
26, 2003
CounterPunch Exclusive
Mistrial?
Rosenthal Jurors Say They Received Outside Legal Advice!
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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