cannabisnews.com: Convicted Pot Guru Wants New Trial Convicted Pot Guru Wants New Trial Posted by CN Staff on April 01, 2003 at 16:44:56 PT By David Kravets, Associated Press Source: Associated Press San Francisco - Lawyers for marijuana guru Ed Rosenthal, convicted in January of federal pot cultivation charges, urged a judge Tuesday to grant a new trial amid allegations of juror misconduct.Rosenthal, who says he was growing medical marijuana under a 1996 law approved by California voters, alleges that at least two jurors incorrectly believed they had no choice but to convict him. A founder of the National Organization for the Reform of Marijuana Laws, Rosenthal once wrote the "Ask Ed" column for High Times magazine and has written books with titles including "The Big Book of Buds" and "Ask Ed: Marijuana Law. Don't Get Busted."Rosenthal, 58, could spend the rest of his life in prison when sentenced in June.His prosecution underscored the federal government's position that there is no medical value to marijuana and that the will of California voters has no affect on federal drug law. In a recent interview, California Attorney General Bill Lockyer said Rosenthal's actions were legal under state law.U.S. District Judge Charles Breyer is not expected to rule on the new trial request for at least a week.Federal prosecutors declined comment but have opposed a new trial.During a nearly two-hour hearing Tuesday, one juror testified that another juror had consulted an attorney during deliberations to ask whether jurors could vote their conscience and ignore the overwhelming evidence before them - Rosenthal was caught with a warehouse full of marijuana plants.A vote of conscience is referred to as jury nullification and allows jurors to acquit based on their beliefs that the crimes charged should not be criminal offenses. The practice dates at least to colonial times, when publisher John Peter Zenger was acquitted of seditious libel against the British government.During Rosenthal's trial, marijuana advocates handed out literature to passers-by urging jury nullification.Rosenthal juror Pamela Klarkowski testified that fellow juror Marney Craig consulted with an "attorney friend" during the trial who counseled Craig that she could not vote her conscience.When Craig told Klarkowski of the advice during the trial, "I felt that there was only one choice," Klarkowski testified.On Tuesday, Craig invoked her Fifth Amendment right against compelled self-incrimination, fearing she could be held in contempt for refusing to obey Breyer's orders that she not discuss the case with outside experts during the trial."I might hold her in contempt," Breyer said.Attorneys for Rosenthal argued that Craig and Klarkowski's discussion tainted the trial. In addition, the advice Craig obtained from the unnamed attorney was false, Rosenthal's attorney Dennis Riordan said."Any external evidence like that is a basis for a new trial," Riordan said.After the trial, jurors said that although they were not told Rosenthal was growing medical-marijuana, they suspected he was. Many said they would have acquitted had they known that Oakland city officials sanctioned his operation.Rosenthal's lawyers are also seeking a new trial on allegations that the judge wrongly prevented Rosenthal from presenting those and other facts to jurors.The case is United States v. Rosenthal, 02-053. David Kravets has been covering state and federal courts for a decade.Complete Title: Convicted Pot Guru Wants New Trial, Alleges Juror MisconductSource: Associated PressAuthor: David Kravets, Associated PressPublished: April 01, 2003Copyright: 2003 Associated Press Related Articles & Web Sites:NORMLhttp://www.norml.org/Ed Rosenthal's Trial Pictures & Articleshttp://freedomtoexhale.com/trialpics.htmRosenthal Case Shakeup - San Francisco Examinerhttp://cannabisnews.com/news/thread15844.shtmlJurors Say They Received Outside Legal Advice http://cannabisnews.com/news/thread15579.shtml Home Comment Email Register Recent Comments Help Comment #3 posted by FoM on April 01, 2003 at 20:25:43 PT Why Marijuana Should be Legal Cover picture and how you can order.http://images.amazon.com/images/P/1560254815.01.LZZZZZZZ.jpghttp://www.amazon.com/exec/obidos/tg/detail/-/1560254815/qid=1049256867/sr=1-1/ref=sr_1_1/103-9010839-3829416?v=glance&s=books [ Post Comment ] Comment #2 posted by FoM on April 01, 2003 at 20:17:45 PT Important E-Mail News from Dale Gieringer Ed Rosenthal Plugs His New BookWhy Marijuana Should be LegalBy Ed Rosenthal and Steve KubbyThunder's Mouth Press, $11.95 (paper)Some guys will do anything to promote a book. The co-authors of the volume at hand, Ed Rosenthal and Steve Kubby are both waging high-profile courtroom battles to legalize marijuana for medical use (not to mention staying out of prison, and alive).Rosenthal, having been convicted on conspiracy and cultivation charges by a federal jury in San Francisco that wasn't allowed to hear his "medical use" defense, is due to be sentenced June 4 by U.S. District Court Judge Charles Breyer. This week Ed was back in court -represented by appeals specialist Dennis Riordan-with a motion to dismiss the case, based on the fact that juror Marney Craig had asked a lawyer of her acquaintance whether she could vote her conscience if it clashed with the judge's instructions. His answer had been 'no,' a fact Craig relayed to fellow juror Pam Klarkowski.Steve Kubby, 55, is seeking political asylum in Canada. A key figure in the passage of Prop 215, he was convicted of possession of an illicit mushroom (after being acquitted on cultivation-for-sale-of-marijuana charges) by a Placer County jury. Fearing that that even a brief incarceration could be fatal, he and the family headed North. He has a rare cancer of the adrenal system that almost invariably kills within two years of being diagnosed. Specialists attribute his longterm survival -more than 20 years- to heavy marijuana use. Kubby's asylum request seeks to establish that the U.S. marijuana prohibition is inherently unjust by Canadian norms. His hearing was adjourned on March 10, after three days of testimony, when he came down with pneumonia. It is supposed to resume April 8.On Tuesday morning, April 1 Ed Rosenthal and his super-efficient wife Jane Klein brought a shopping bag full of "Why Marijuana Should Be Legal"s to Judge Breyer's courtroom at the federal building in S.F. After the proceedings, as the reporters clustered around Ed with technical legal questions, he handed them books and amplified his answers with salient political facts to be found therein. "Did you know," Ed said to David Kravets of the Associated Press, "the federal government spends more than $1.2 billion a year incarcerating people for marijuana? That doesn't include the cost of investigating, arresting and prosecuting the hundreds of thousands of marijuana users arrested every year."The reporters a lot of questions to ask because the proceedings had been complex. The Rosenthal camp called three witnesses. First, Marney Craig, the juror who called a family friend who happened to be a lawyer and asked him a hypothetical question about jurors voting their conscience as opposed to obeying the judge's instruction. Then Pam Klarkowski, the juror whom Marney apprised of her question to the lawyer, and his answer: "Obey." Third, Eve Tulley-Dobkin, confirmed that Craig had made reference to discussing the case with a lawyer within minutes after the verdict had been read.Craig, a 58-year-old property manager who lives in Novato, was accompanied to court by her husband who hadn't attended the Rosenthal trial and couldn't even get confirmation from her, while it was going on, that she was on the jury. So respectful of the rules was Marney Freeman Craig suspected, of course, and dutifully clipped the Chronicle stories for his wife to read when it was all over.Craig was also accompanied by a lawyer of her own, Mary MacNamara, who advised her to take the 5th Amendment rather than divulge the name of the lawyer with whom she had consulted. (Prosecutor George Beavin referred to it as "the 5th Amendment 'privilege.'" Isn't it a right?) Dennis Riordan, representing Rosenthal, whom Craig would obviously like to help, elicited a promise from Breyer that "jail would not be the remedy" if Craig was found to be in contempt when the proceedings resume April 14.Pam Klarkowski, a nurse who lives in Petaluma, testified that, on occasion during the Rosenthal trial, she drove to and from court with Marney Craig and a third juror. Craig apprised her that she intended to ask "an attorney friend about a point of law 'Do jurors ever have an opportunity to vote or make a decision based on their conscience?'"Klarkowski said she told Craig, "If you do, I'd like to know the answer." Then, on January 31, the morning that deliberations were to begin, Klarkowski asked Craig, "Did you speak to your friend?"Craig: "Yes.""What did you find out?""To do what we're instructed by the judge."Riordan asked if those were the exact words Craig had used. Klarkowski, upon reflection, amended it to "To do what we were told."Prosecutor Beavin moved to dismiss Klarkowski's testimony as hearsay. Judge Breyer said he'd rule on that after subsequent testimony by Craig.Eve Tulley-Dobkin, who works in the technology department of a brokerage house, described the dramatic scene in which the jurors were confronted -forthrightly but civilly- by Hilary McQuie, after delivering their verdict. The decision to convict had come sooner than anticipated, the crowd of supporters that attended the trial was gone, no reporters were around to ask the jurors to explain their reasoning. McQuie was not only in the right place at the right time, she had the courage, she had a clear political overview -asserting our rights as jurors is one of our last best hopes - and she found the right way to ask these women and men, as they emerged from the room in which they'd deliberated for half a day, if they understood that Ed Rosenthal had been growing marijuana for medical use Their ambivalence about what they'd just done came pouring out. And their anger at not having been allowed to consider the evidence that common sense would deem relevant. And instead of shame -because the jurors knew better than anyone the pressure they'd been under to "obey"- came a determination to reverse the injustice to which they'd been a party. Within five minutes they were politically organized, thanks to Hilary McQuie.In the days to come McQuie and her co-workers at Americans for Safe Access, aided by private investigator Barbara Yaley, contacted all the sympathetic jurors, encouraged them to tell the whole country how they felt about being used to rubber-stamp the prosecution of Ed Rosenthal, and got the whole country to listen.Under the relevant federal statute, it can be grounds for dismissal if a juror is influenced during the course of a trial. Whether or not that statute applies to a conversation held en route to the courtroom on the first day of deliberations is part of what Judge Breyer will have to decide. If he winds up dismissing the case, the feds will have to decide whether they want to re-try indomitable Ed Rosenthal.As a coda to the juror-misconduct debate, AUSA Beavin asked Breyer to set a deadline by which Rosenthal had to "cooperate fully" with the Probation Department, i.e. name the names of those involved in his enterprise. Ed says, "There are no names besides the names of city officials. Probation is satisfied that I have cooperated fully." In order to qualify for the so-called "safety valve" -and get out from under a 10-year mandatory minimum sentence [actually 5 years - DG] - Ed has to cooperate. And Breyer gets to define the term.Dale Gieringer (415) 563-5858 // canorml igc.org 2215-R Market St. #278, San Francisco CA 94114 California NORML [ Post Comment ] Comment #1 posted by fivepounder on April 01, 2003 at 18:42:59 PT: maybe Breyer got some conscious Let's hope for a miracle. I think this is Ed's best tact. [ Post Comment ] Post Comment