POT JURY TAINTED, LAWYERS CLAIM

Rosenthal's attorneys say juror received outside legal advice

Attorneys for medical marijuana grower and federal convict Ed Rosenthal of
Oakland on Wednesday gave a judge what they say is evidence of jury
misconduct that could require a new trial.

The papers say one of the federal jurors who convicted Rosenthal, 58, on
Jan. 31 of three marijuana-related felonies, has admitted that during the
trial she called a friend who is a lawyer.

With misgivings about U.S. District Judge Charles Breyer's instruction to
ignore California's medical marijuana law, the juror asked her friend
whether she had any wiggle room to exercise her own thoughts and conscience.

The friend apparently told her she did not -- that she must follow the
judge's instructions explicitly -- and the juror then shared this
information with another juror.

"We're not really sure what the judge is going to do with this, if there
will be a hearing," Rosenthal spokeswoman Teresa Schilling said Wednesday
evening. "It's hard to say at this point."

The U.S. Attorney's office, which doesn't comment on pending cases, has
until March 5 to respond to the papers filed Wednesday.

"It is generally not proper for a jury to rely upon ... statements of the
law from a source other than the trial court," said professor Charles
Weisselberg, a criminal law expert at the University of California,
Berkeley's Boalt Hall School of Law. "The question the court will wrestle
with is, assuming this was not proper: How did it harm the defense?"

Professor Franklin Zimring, also at Boalt Hall, predicted Breyer "is not
going to be enormously receptive. The question is whether something like
that is going to influence a judge to reverse a verdict, and the answer is
probably not."Not a convincing hook

Even as grounds for an appeal before the 9th U.S. Circuit Court of Appeals,
he said, "I don't think these jury communications all by themselves will be
a convincing hook."

Federal agents raided Rosenthal's home, his West Oakland marijuana-growing
facility and other sites a year ago. Although state and local laws permit
medical use of marijuana, federal law bans all growing, possession and
use.Possible lighter sentence

Jurors were ordered not to consider state law, and weren't told of the
Oakland ordinance meant to protect certain growers from prosecution.
Rosenthal faces at least five years in federal prison at his June 4
sentencing, although Breyer has said he'll seek reasons to impose a lesser
sentence.

The two jurors cited in Wednesday's filing have been among the most vocal in
stating their regret at having convicted Rosenthal; they said if they'd
known about the city ordinance, they would have refused to convict no matter
what federal law says.