Juror's call upends medical pot conviction

Appeals court rules advice from lawyer prejudiced case

by Bob Egelko, San Francisco Chronicle
April 27th, 2006

A federal appeals court overturned the pot-growing convictions of a prominent advocate of medical marijuana Wednesday 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 Oakland resident Ed Rosenthal a trial before an impartial jury, the Ninth U.S. Circuit Court of Appeals in San Francisco 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.''

The ruling was narrow and did not address most of the issues raised by the conflict between federal drug law, which prohibits growing or using marijuana, and California's Proposition 215, a 1996 initiative that allowed patients to use the drug with their doctors' approval. But the reversal of Rosenthal's convictions continued a series of post-trial setbacks for the government in one of its most prominent marijuana prosecutions.

The federal government has fared better in the U.S. Supreme Court, however, winning cases that upheld federal injunctions against medical marijuana clubs and allowed federal prosecution of individual patients and confiscation of their supplies.

Rosenthal's lawyer, Dennis Riordan, said the ruling and the events that prompted it underscore the uneasiness of the trial jurors, and their community, about criminal charges against a medical-marijuana supplier.

"There would not have been a conviction but for this outside influence'' of the attorney's advice, Riordan said. "Jurors never can be told they can get in trouble for what they say during deliberations.''

There was no immediate announcement from U.S. Attorney Kevin Ryan's office on whether it would appeal the ruling or retry Rosenthal.

The appeals court signaled that a retrial and convictions on the same charges would result, at most, in a one-day jail sentence, the term imposed by Rosenthal's judge in 2003. Fletcher said the court "would not be inclined to disturb'' the judge's sentencing decision.

Rosenthal, the "Ask Ed'' columnist in High Times magazine and an authority on marijuana cultivation, was arrested in February 2002 on federal charges of growing hundreds of plants for patients served by the Harm Reduction Center, a San Francisco dispensary.

U.S. District Judge Charles Breyer refused to let jurors hear evidence about the intended medical use of the marijuana. He also rejected Rosenthal's assertion that he was a drug-enforcement officer -- and thus immune from prosecution under federal law -- because the city of Oakland had designated him as its agent to implement a municipal program of supplying medical marijuana to patients.

The appeals court agreed with that ruling Wednesday, saying Rosenthal may have been implementing Prop. 215 but was not enforcing it.

A jury convicted Rosenthal of three felony charges of cultivating marijuana, and he could have been sentenced to five years in prison. Instead, Breyer gave him a day in jail, which he had already served after his arrest.

The judge said Rosenthal had believed, mistakenly but reasonably, that he was not violating federal law because of his designation as Oakland's agent, an issue that the courts had not addressed.

Rosenthal nonetheless appealed his convictions, buoyed by support from seven of the 12 jurors. In post-trial statements to reporters and a letter to Breyer, the jurors said their verdict would have been different if they had been allowed to consider evidence about the medical use of the marijuana that Rosenthal grew and his status as an agent in the Oakland program.

Those qualms also led to the pre-verdict phone call that the appeals court cited as the basis for its ruling Wednesday.

In a sworn declaration, the unidentified juror said she had been troubled by the absence of evidence about medical marijuana and by the judge's instructions that jurors must consider only federal law. She said she had telephoned a lawyer she knew and asked if she had to follow the instructions or if she had any leeway for independent thought.

She said the lawyer had replied that she had to follow the instructions or she could "get into trouble.'' The juror said she had shared the advice with another juror who had expressed the same confusion.

Although the lawyer's advice was accurate, the warning that jurors could get in trouble was misleading and prejudicial, the appeals court said. "A juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished,'' Judge Fletcher said.