cannabisnews.com: 'Ganja Guru' Rosenthal's Conviction Overturned










  'Ganja Guru' Rosenthal's Conviction Overturned

Posted by CN Staff on April 26, 2006 at 15:22:47 PT
By Josh Richman, Staff Writer 
Source: Oakland Tribune 

California -- 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. Source: Oakland Tribune, The (CA)Author: Josh Richman, Staff WriterPublished: April 26, 2006Copyright: 2006 MediaNews Group, Inc. and ANG NewspapersContact: triblet angnewspapers.comWebsite: http://www.oaklandtribune.com/Related Articles & Web Sites:Americans For Safe Accesshttp://www.safeaccessnow.org/Ed Rosenthal's Pictures & Articles http://freedomtoexhale.com/trialpics.htm Court Overturns 'Guru of Ganja's' Convictionhttp://cannabisnews.com/news/thread21782.shtmlTwist Ends Medical Marijuana Casehttp://cannabisnews.com/news/thread16545.shtml

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Comment #31 posted by Max Flowers on April 29, 2006 at 11:29:25 PT
whig
If the stars aligned in such an amazing unlikely way that I were called for jury duty on a drug case, or I suppose any case where I thought it was likely that the defendant did not deserve to be convicted, yes I would play the regular neutral guy all the way, up to the crucial end point where I would pull out my secret weapon. That's exactly what I would do. However, I admit that those guys are very skilled at what they do and I think they would sniff me out by instinct and I wouldn't get picked anyway..
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Comment #30 posted by whig on April 27, 2006 at 13:02:23 PT
Max
What would you say during voir dire when asked if you will apply the law as it is given to you, even if you disagree with it? Assuming that you say you will apply the law when you have no intention of doing so in the case of a cannabis prosecution, you will also have to keep your mouth shut in the jury room and not let on that you are nullifying. Moreover, you will have to at least pretend to deliberate on the facts of the case and follow the law, or in California you will be removed from the jury and replaced with an alternate.http://tinyurl.com/e2pmxThey aren't making it easy. The only way jury nullification works is for a juror to truly be defiant, and even then it results most likely in a mistrial and the state can then refile charges and empanel a new jury. Double jeopardy is held not to apply when the jury does not come to an acquittal or conviction.
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Comment #29 posted by kaptinemo on April 27, 2006 at 10:47:33 PT:
My pleasure Paul Peterson
And it may interest those reading this to know, I learned about this case from reading here. One more reason why, like my vitamins, every day I get my daily dose of CNEWS to ensure a healthy informational diet.
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Comment #28 posted by paulpeterson on April 27, 2006 at 10:31:17 PT
kaptinemo
Thanks for the site to US v. Moylan. That is powerful medicine. Ed's travail may be remembered more for the jury nullification thingy than for the medical marijuana aspects, assuming more press is generated by the juror misconduct aspect.Knowledge is a powerful tool. Thanks for your thoughts. PAUL PETERSON, from rural Iowa, far behind enemy lines.
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Comment #27 posted by Max Flowers on April 27, 2006 at 09:51:47 PT
Courage and knowledge
Those are the keys to jury nullification. The juror(s) have to have the knowledge in the first place about nullification and their right to do it, and then they have to have the courage to do it.Sorry to state the obvious, but it sort of seemed like it needed to be pointed out.We are talking about nothing less than the simple difference between a person who is scared of a judge, and NOT scared of a judge. Earlier in my life (say ten years ago and more), I would have been ignorant and scared as a typical juror. Now, I would relish the opportunity to nullify if I had it, and the case cried out for it. Few things could be sweeter than to shut down that machine as it was getting ready to run over someone unjustly.
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Comment #26 posted by kaptinemo on April 27, 2006 at 09:24:49 PT:
Key to Jury Nullification: U.S. vs. Moylan
In this little known but incredibly important case, it was acknowledged that jurors do, indeed have the right to judge the law as well as the defendant:"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969)). The judge can't throw you in the slammer for exercising your rights under Moylan by voting your conscience instead of his or her directives. The prosecutor can only stand there and have steam pour out his or her ears, grind teeth or clutch guts and wince if you decide to say "Not guilty!". And, most important of all, you are under no compulsion to explain why.This is why the prosecutor and the judge try so hard to screen juries during voir dire, to make sure that no one who truly understands his or true rights to judge the law ever makes it to the jury box. They are absolutely terrified of such a possibility, and know the moment that if a request from a sequestered jury regarding this case comes from the bailiff, their little railroading game is over.US vs. Moylan. Remember that case's name, as it can save you...and make the prosecution and judge look like the scheming b*****ds they usually are for not telling the jury about the tremendous power they have...and always had.
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Comment #25 posted by FoM on April 27, 2006 at 09:09:59 PT
Hope
That's true. 
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Comment #24 posted by Hope on April 27, 2006 at 09:06:44 PT
"I haven't found any news..."
Slow is better than tragic. I'm always afraid of the tragedies prohibition leaves in it's wake.
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Comment #23 posted by runderwo on April 27, 2006 at 07:58:36 PT
whig
Heh, I misread the article. Thanks.
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Comment #22 posted by FoM on April 27, 2006 at 07:56:44 PT
Just a Comment
I haven't found any news so it looks like it will be a long weekend. Maybe something will break loose and I'll keep looking. I hope everyone has a great weekend. 
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Comment #21 posted by Toker00 on April 27, 2006 at 05:36:29 PT
Good morning, c-newsers.
I just wanted to share a quote with you this morning.
	
"Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible."- Jamie Raskin, professor of law at American University, responding to MD state Senator Nancy Jacobs' biblical justification for supporting a ban on same sex marriage.That statement seperates Church and State like a knife cutting through warm butter.Wage peace on war. END CANNABIS PROHIBITION NOW!
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Comment #20 posted by whig on April 27, 2006 at 00:27:34 PT
AOLBites
The judge can say, "you must follow the law," as a command, as long as he doesn't say, "or you will be punished." Jurors can be instructed as to the law, but not penalized or threatened for their verdict in contravention of the law. Some judges will remove jurors "for cause" if they refuse to follow the law, and appoint an alternate in their place. There was even one case (Laura Kriho) where a juror was contempted for nullifying, but she was acquitted.http://www.levellers.org/jrp/acquit.pr.htmI'm not arguing that this is good, just that this is how the system works.
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Comment #19 posted by AOLBites on April 27, 2006 at 00:18:22 PT
ie etc
for example - if a judge says :"you must follow the law" - this sounds like the f'n mafia to me ... very coercive however, if he says:"you Should follow the law" he/she[ha. yea right] Could be interpreted -by lawyers- [not nessesarily jurors] as a very small gap that can accommodate jury nullification... ;as a juror, and having talked to as many as i have, generally that would be considered to be a sort of governmental threat ... and not the wide open gap that lawyers Should recognise
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Comment #18 posted by AOLBites on April 26, 2006 at 23:59:00 PT
don't see how
i still don't see how a instruction to follow the law [insistance upon following the law-From the Judge] cannot be considered a coercive influence...
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Comment #17 posted by whig on April 26, 2006 at 23:33:24 PT
Jury nullification
http://en.wikipedia.org/wiki/Jury_nullificationJury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented.
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Comment #16 posted by whig on April 26, 2006 at 23:30:04 PT
AOLBites
I think the way nullification works is that the judge does not have to inform you of your right as a juror to nullify, indeed he can instruct you to follow the law, however, you cannot be punished nor threatened with punishment for nullifying.
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Comment #15 posted by AOLBites on April 26, 2006 at 23:04:48 PT
null
i simply cant see how anyone can reconcile the statements...."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."this statement is simply the absolute essence of jury nullification..... how can that be denied? [and work with the first amendment and others?]well? please attempt to explain 
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Comment #14 posted by AOLBites on April 26, 2006 at 22:55:46 PT
you know,
every now and then, i wish that judges could read the f'n Constitution.link to the judgement text please? its tough interpreting through the eyes of stupid journalists.i totally read that differently the first few times ... *sigh* When will they respect REALITY? ...i see that juror misconduct demands a new trial, but i dont see how Rosenthal can NOT introduce supporting scientific studies for the medical use, ASSuming the prosecution is allowed to say medical use does not exist...?could not ANY meadical pot case strike down the arbitrary FDA ruling simply by introducing c-news and the CRL into evidence?couldn't this cascade with the DEMAND that our laws be science based? [canada too or even ESPESCIALLY?] - [ahem-alaska]how is this possible again? [or not?]
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Comment #13 posted by whig on April 26, 2006 at 22:04:45 PT

AOLBites
The appeals court decision was based upon the juror obtaining an outside opinion from a lawyer friend that she would get in trouble for nullifying, and sharing that advice with another juror. Breyer was not rebuked.
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Comment #12 posted by whig on April 26, 2006 at 22:01:58 PT

aolbites
"It also rejected the claims ... that Breyer erred in instructing the jury regarding its right to engage in nullification"
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Comment #11 posted by AOLBites on April 26, 2006 at 21:55:02 PT

"quote"
 The defense, unable to argue about a possible medical justification, made a thinly veiled plea for jury nullification in disregard of the federal anti-pot law. "Please do justice," said defense lawyer Robert Eye. "We don't ask you to check your common sense of justice at the door when you judge this case. I can only hope there are those of you whose sense of justice ... "But Breyer interrupted. "It's not your determination whether a law is just or unjust," the judge told jurors. "That can't be your task."
Reluctant Jury Convicts Medical Pot Grower
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Comment #10 posted by AOLBites on April 26, 2006 at 21:33:17 PT

"quote"
"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."
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Comment #9 posted by AOLBites on April 26, 2006 at 21:29:04 PT

whig No! don't you see it?
Breyer was rebuked here for telling the jury that they had no right to nullification without fear of retribution!this case upholds the right of jury nullification [while at the same time strangely upholding the right to ban free speach in the courtroom; BIZZARE]
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Comment #8 posted by whig on April 26, 2006 at 21:02:16 PT

runderwo
According to the appeals court, Breyer did not err. The reason cited for the reversal was juror misconduct resulting in mistrial, not an error of the judge.
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Comment #7 posted by runderwo on April 26, 2006 at 20:19:34 PT

erred
Can anyone tell me in what way Breyer 'erred' regarding nullification? What statement did he make to the jurors?
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Comment #6 posted by FoM on April 26, 2006 at 19:44:02 PT

SFC: Oakland Pot Growing Conviction Overturned 
But ruling means new trial for marijuana advocate.Bob Egelko, Chronicle Staff WriterWednesday, April 26, 2006 SAN FRANCISCO -- The federal marijuana cultivation convictions of noted pot advocate Ed Rosenthal were overturned by a federal appeals court today because of a juror's phone call to an attorney friend, who told her to follow the judge's instructions or she could get in trouble. The juror's unauthorized contact on the eve of the verdict in January 2003 was an "improper influence'' that denied Rosenthal a trial before an impartial jury, the Ninth U.S. Circuit Court of Appeals said in a 3-0 ruling granting him a new trial. "Jurors cannot fairly determine the outcome of a case if they believe they will face 'trouble' for a conclusion they reach as jurors,'' said the opinion by Judge Betty Fletcher. "The threat of punishment works a coercive influence on the jury's independence.'' Snipped:Complete Article: http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/04/26/MNG3EIFNVE4.DTL

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Comment #5 posted by ekim on April 26, 2006 at 18:36:23 PT

Judge Jerry Paradis presents "Drug Regulation:
May 2 06 Beyond Criminalization: Healthier Ways to Control Drugs 07:00 PM Jerry Paradis Vancouver British Columbia Canada 
 Speaker Judge Jerry Paradis presents "Drug Regulation: An Alternative to Prohibition" when he participates in Public Diologues Beyond Criminalization: Healthier Ways to Control Drugs. Judge Paradis will be showing the new LEAP video and discussion is to follow. May 6 06 Cures Not Wars Rally 04:00 PM Jeff Kaufman New York New York USA 
 Speaker Jeff Kaufman will speak at this year's "Cures Not Wars Rally". Location: Battery Park. Visit the following for a map to the rally: http://www.cures-not-wars.org/nymap2006.pdf 
May 8 06 A Debate Re: "Have Our Drug Laws Failed?" 04:00 PM Jim Gray San Diego California USA 
 Speaker Judge James P. Gray will particpate in a debate with student drug testing advocate Roger Morgan. The topic of the debate is "Have Our Drug Laws Failed?" Location: San Diego State University, downstairs in the Aztec Center 

http://www.leap.cc/events/
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Comment #4 posted by mayan on April 26, 2006 at 18:29:12 PT

Who Needs Lies?
It (appeals court) 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.If the jury would have been informed of their right of jury nullification and informed of the fact that Ed was growing cannabis for medicinal purposes there would have been no conviction whatsoever.Isn't it obvious which side of this struggle relies on lies and which side relies on the truth? Very telling, eh?Let's do it...Impeaching Bush, State by State:
http://www.alternet.org/story/35467THE WAY OUT...The NY Observer: "Conspiracy Theorists" at United93 premiere:
http://www.911blogger.com/2006/04/ny-observer-conspiracy-theorists-at.htmlTop 15 to boycott/leaflet "United 93":
http://portland.indymedia.org/en/2006/04/338207.shtmlFlight 93 Flyers:
http://911research.wtc7.net/materials/flight93/index.htmlVideo Evidence of Thermite at WTC:
http://video.google.com/videoplay?docid=-2991254740145858863&q=cameraplanet%2B9/11EVIDENCE - Thermite Residue on Core Column *PIC*:
http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=87970

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Comment #3 posted by FoM on April 26, 2006 at 16:26:57 PT

Listen to Congressman Hinchey's Remarks
You can listen to Congressman Hinchey's remarks about medical marijuana, states' right to legalize such use, the lack of scientific merit to the Administration's claims about it, his frustration with other members of Congress who ignore scientific fact on a variety of issues, and his intention to (re-)introduce legislation to de-fund the Drug Enforcement's interference in state efforts to legalize medical marijuana by clicking here. http://www.etopiamedia.net/empnn/audio/mauricehinchey2.0.wma
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Comment #2 posted by FoM on April 26, 2006 at 16:24:12 PT

Congressman Hinchey Disputes FDAs Claims about MMJ
Washington, D.C. April 26, 2006By Marc Strassman, Reporter Congressman Maurice Hinchey supports states' right to legalize medical marijuana, despite recent FDA claims regarding marijuana's medical usefulness and discusses possible impeachment of President Bush following a Democratic take-over of the House of Representatives in November, 2006http://etopiamedia.net/empnn/pages/cpt-emnn/cpt-emnn551-5551212.html
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Comment #1 posted by FoM on April 26, 2006 at 16:04:33 PT

Speeches from NORML's Conference
Hear selected speeches and interviews from the NORML 2006 Conference. You can download the MP3 files or listen to NORML's Event PodCast.http://www.norml.org/index.cfm?Group_ID=6881
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