Mistrial? Rosenthal Jurors Say They Received Outside Legal Advice!

http://www.counterpunch.org/harrison02262003.html

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 covers the drug war from San Francisco. She can be reached
at: ah [at] well.com