Bob Egelko, Chronicle Staff Writer Wednesday, February 5, 2003
Four of the 12 jurors who convicted medical marijuana advocate Ed Rosenthal of federal cultivation charges stood beside Rosenthal Tuesday and called for a new trial, saying crucial facts had been withheld from them.
Just four days after they had found Rosenthal guilty, the jurors said they felt misled by the judge's refusal to let them hear that Rosenthal's motivation for growing marijuana was to supply medical patients.
"For the first time in my life, I find myself questioning the court system, " said jury foreman Charles Sackett III of Petaluma, reading a letter of apology to Rosenthal.
Sackett was joined by three other jurors and an alternate juror. Marney Craig said at least one other juror was sympathetic but unable to attend. Another juror attended a court hearing earlier in the day in which Rosenthal was allowed to remain free on $200,000 bail but did not appear at the press conference.
The verdict was "the most horrible mistake I have ever made," said Craig of Novato as Rosenthal backers cheered. "We were only given half of the evidence."
Rosenthal, 58, of Oakland, a magazine columnist and author of books on marijuana growing, was convicted of three felony charges in connection with plants he was cultivating for patients served by the Harm Reduction Center, a San Francisco dispensary. He faces at least five years in prison.
The 12 jurors reached their unanimous verdict in less than a day, but several expressed qualms soon afterward when Rosenthal's supporters and news accounts informed them of the areas Breyer had declared off-limits.
"Had we been notified that Ed was deputized by the city of Oakland . . . there's no way we would have convicted him," juror Pamela Klarkowski of Petaluma said Tuesday.
District Attorney Terence Hallinan, Board of Supervisors President Matt Gonzalez and Supervisor Tom Ammiano added words of support and hugs for Rosenthal, who was obviously cheered by the occasion.
"Whether or not I wind up in jail, these (federal) laws are doomed."
Although the jurors' statements have no legal effect on the case, an issue they raised -- Rosenthal's designation as an Oakland city agent -- appears to be crucial to his appeal. Breyer underscored the importance of the issue at Tuesday's hearing, in which he rejected a prosecution request to jail Rosenthal until his sentencing June 4.
Rosenthal's attorneys sought to have the charges dismissed because the federal drug law grants immunity to state and local officers enforcing narcotics laws -- a status they claimed for Rosenthal under Prop. 215 and an Oakland ordinance implementing it.
Breyer ruled before the trial that the exemption did not apply to Rosenthal and noted that he had rejected the same argument in a 1998 case involving the city-endorsed Oakland Cannabis Buyers' Cooperative.
On Tuesday, however, he said, "I could be wrong. The courts of appeal could disagree with me. I don't think it's a frivolous issue." Breyer said the seriousness of the issue, the unusual nature of the case and the lack of evidence that Rosenthal would flee justified allowing him to remain free on bail.
One legal analyst said later he was dubious about the defense argument.
"It's very difficult for me to understand how Ed Rosenthal can fit" into the immunity carved out by federal law, said Rory Little, a professor at UC's Hastings College of the Law in San Francisco and a former federal prosecutor and Supreme Court clerk. He said it was questionable that Rosenthal's role in supplying medical marijuana, even with city endorsement, made him a law enforcement officer.
Little also criticized Rosenthal's defenders for their role in arranging the jurors' news conference.
"Jury service has always been hard enough without lawyers importuning jurors after the fact," he said. "These people put on as hard a fight in court as they could, and they lost. Now they're putting on a fight in the press. It sends a message to the public that the legal process is irrelevant" and could discourage people from serving as jurors, Little said.
Jurors said Tuesday they were acting on their own, without prompting from Rosenthal's defense team. And juror Klarkowski, a registered nurse, said she also wanted to tell the public, "Don't be afraid to serve on a jury."