'GANJA GURU' ROSENTHAL'S CONVICTION OVERTURNED

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.