Plainsman1963

COURT OVERTURNS ROSENTHAL'S MARIJUANA CONVICTIONS
04-26-06 | CBS5.Com

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 jury.

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 as jurors."

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 provision."

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 law.

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 thought.

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 is "moot."

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.

Little Nicky

If they try him again can he get a longer sentence?
I had hoped that it would have been overturned on something a little more substantial than juror misconduct.

MrIMStoned

Why? He was doing something illegal in the USA. He's lucky that he has had such reasonable judges. I don't know why he is even appealing the case, didn't he already serve his time?

__________________
"In the end the Party would announce that two and two made five, and you would have to believe it. It was inevitable that they should make that claim sooner or later: the logic of their position demanded it. Not merely the validity of experience, but the very existence of external reality, was tacitly denied by their philosophy. The heresy of heresies was common sense. And what was terrifying was not that they would kill you for thinking otherwise, but that they might be right. For, after all, how do we know that two and two make four? Or that the force of gravity works? Or that the past is unchangeable? If both the past and the external world exist only in the mind, and if the mind itself is controllable what then?"

Tolerance4all

He does not want a felony record.

Little Nicky

Haven't been following the case, have you?
He asked and got permission from the Oakland Cal. government to grow marijuana seedlings for people who needed help starting their own garden. He had the city come out to his grow op and check the mechanics of his grow op to make sure it was safe to operate.
When the feds arrested him, he was unable to tell the jury about getting local government approval and that the marijuana was for medicinal purposes.
All the jury heard was that Ed Rosenthal was growing large amounts of marijuana (nearly all were seedlings) in an industrial commercial setting. Without his ability to explain his side, he got convicted. The jurors were furious when they found out the rest of the story. Nearly half said they would not have convicted him if they knew the reason behind the pot.
He was lucky to have a judge with a heart and gave him a day in jail (or something like that). But he does have an arrest history and a felony conviction on his record.

Little Nicky

One more thing. Ed Rosenthal is one of just a handful of people in the medpot movement who has gone to bat for the movement....an inspiration and one of medpots brightest lights.

Mamabudz

And Little Nicky -- you are one of the Brightest Posters here...

...would you like a cookie ?