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April 27, 2006 - Oakland Tribune (CA)

'Ganja Guru' Rosenthal's Conviction Overturned

By Josh Richman, Staff Writer, Inside Bay Area

Return to Drug War News: Don't Miss Archive

A federal appeals court on Wednesday overturned the felony convictions of "Guru of Ganja" Ed Rosenthal of Oakland, finding juror misconduct warrants a new trial for the renowned marijuana activist and author.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco found a juror's conversation with an attorney-friend during deliberations compromised Rosenthal's right to a fair trial and verdict.

But while the ruling is good news for Rosenthal, it's not terribly good news for medical marijuana advocates. The appeals court rejected Rosenthal's claim of immunity from prosecution as an officer of Oakland who grew the drug under the city's medical marijuana ordinance.

"Although the city of Oakland purported to authorize Rosenthal to manufacture marijuana, he was not 'duly authorized' to do so, as state law does not allow the manufacturing of marijuana by individuals other than the patient or his primary caregivers," Circuit Judge Betty Fletcher wrote for herself and circuit judges Marsha Berzon and John Gibson.

Furthermore, she wrote, growing marijuana for medical use doesn't amount to "enforcement" of any law under the immunity statute. "The state law does not give any person a right to obtain medical marijuana from any particular source, and the Oakland Ordinance does not mandate that Rosenthal manufacture marijuana."

Rosenthal couldn't immediately be reached for comment.

Luke Macaulay, spokesman for the U.S. Attorney's office in San Francisco, said Wednesday prosecutors haven't yet decided whether to retry Rosenthal, seek a rehearing by a larger 9th Circuit panel, or take other action. "We are reviewing the court's decision and considering the available options."

Famed for his marijuana cultivation books and the "Ask Ed" column he used to write for High Times magazine, Rosenthal was convicted of three marijuana-growing felonies in 2003, more than a year after federal agents raided sites including his Oakland home, an Oakland warehouse in which he was growing marijuana, and a San Francisco medical marijuana club he supplied.

Joseph Elford, one of Rosenthal's attorneys, argued to the appeals court last September that Rosenthal deserves a new trial because of juror misconduct. During deliberations, a juror troubled by the idea of convicting Rosenthal consulted a friend -- who happened to be an attorney -- and was advised that she could "get in trouble" for deviating from the judge's instructions. She shared that advice with another juror.

"Jurors cannot fairly determine the outcome of a case if they believe they will face 'trouble' for a conclusion they reach as jurors," Fletcher wrote.

"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."

Not only is there a "reasonable possibility" of prejudice, she wrote, "but the government has not succeeded in rebutting the presumption that a new trial is warranted. Accordingly, we reverse the district court and order a new trial."

Marney Craig of Novato, the juror who had the fateful conversation, was among a majority of jurors who after rendering their verdict went public with their support and sympathy for Rosenthal and their demand for a new trial. They said they felt they'd been railroaded into convicting him, and they apologized for the verdict. Craig couldn't be reached Wednesday.

Rosenthal's attorneys also had claimed prosecutor George Bevan committed misconduct when discussing the investigation's aims with grand jurors who eventually indicted Rosenthal, in that he allegedly lied about not targeting medical marijuana clubs. The appeals court agreed with Breyer that this wasn't the case.

It also rejected the claims that Breyer ruled erroneously on a defense objection to certain evidence, and that Breyer erred in instructing the jury regarding its right to engage in nullification - -- refusing to convict according to the law, instead acquitting the defendant as a matter of conscience, common sense or the perceived unjustness of the law.

The government had cross-appealed the case, claiming U.S. District Judge Charles Breyer erroneously found Rosenthal eligible for a "safety valve" exception to sentencing guidelines in imposing only a single day of jail time as the sentence. In light of the overturned convictions, the appeals court dismissed that argument as moot.

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