'Ganja guru' may receive new trial

Federal appeals court overturns activist's felony convictions because of juror misconduct

by Josh Richman, ANG Newspapers
April 26th, 2006

A federal appeals court on Wednesday overturned the felony convictions of "Guru of Ganja" Ed Rosenthal of Oakland, citing juror misconduct that warrants a new trial for the 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 a lawyer friend during deliberations compromised Rosenthal's right to a fair trial and verdict. But while the ruling is good news for Rosenthal, it is not good for medical

marijuana advocates. The appeals court rejected Rosenthal's claim of immunity from prosecution as a city officer under Oakland'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 does not 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."

Bruce Mirken, communications director for the Marijuana Policy Project, said "the bottom-line end result is that it probably doesn't change the legal climate very much."

"People who are protected under state law remain vulnerable under federal law and still aren't likely to be able to tell their whole story to the jury," he said. "People are being accused of a crime and can't explain why they did it. ... I think it violates most Americans' basic sense of fair play."

Rosenthal could not be reached for comment Wednesday; he and his attorneys are expected to hold a news conference today.

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

Known for his marijuana cultivation books and the "Ask Ed" column in 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 pot and a San Francisco medical marijuana club he supplied.

Medical use of marijuana on a doctor's recommendation is legal under state law, but federal law still prohibits it.

Rosenthal was barred from discussing his medical motive at trial.

During deliberations, a juror troubled by the idea of convicting Rosenthal consulted a friend who happened to be a lawyer and was advised that she could "get in trouble" for deviating from the judge's instructions. She shared that advice with another juror.

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 support and sympathy for Rosenthal. They said they had been railroaded, apologized for the verdict and demanded a new trial. Craig could not be reached Wednesday.

The government had cross-appealed, 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.

Prosecutors wanted to put Rosenthal behind bars for years. Breyer said he believed Rosenthal had believed in good faith that he was immune from prosecution and so deserved a lesser sentence, but he warned that defendants in future cases would not fare so well.

Because it overturned the convictions, the appeals court did not address the sentencing directly. In a footnote, however, the panel said it "would not be inclined to disturb the court's reasoned analysis underlying its sentencing determination."

In a statement issued Wednesday, Joseph Elford — one of Rosenthal's attorneys, and legal counsel to Americans for Safe Access — said the footnote "is the panel's way of telling the federal government not to bother with a new trial. Why waste more taxpayer resources when the best you can hope for is a conviction but no additional jail time?"

The appeals court upheld Breyer's rejection of Rosenthal's claims that prosecutor George Bevan committed misconduct by misleading grand jurors who eventually indicted Rosenthal regarding the government's motives.

It also rejected Rosenthal's claims that Breyer erred in rejecting a defense objection to certain evidence and 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.