JUROR'S CALL UPENDS MEDICAL POT CONVICTION

Appeals Court Rules Advice From Lawyer Prejudiced Case

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.