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Rosenthal retrial possible BY J.K. DINEEN Of The Examiner Staff
Lawyers for medical marijuana champion Ed Rosenthal asked federal Judge Charles Breyer for a new trial Tuesday after two jurors came forward to say their ability to deliberate was compromised by advice from an outside attorney.
Rosenthal juror Pamela Klarkowski testified that fellow juror Marney Craig consulted with an attorney friend during the trial who said she could not vote "her conscience." Klarkowski said the issue first came up when the pair was carpooling home to Sonoma County.
"We were traveling north and Marney said, 'Do jurors always have to follow the law? Don't they ever have the opportunity to make a decision based on conscience?'"
Klarkowski responded that jurors had taken an oath to weigh the evidence given, but added, 'Maybe you have a point.'" Craig then said she had "real questions" and would like to "call an attorney friend to ask about this point of law." "I said if you do, let me know what you find out," testified Klarkowski.
The next day on their way back into The City, Craig said her friend had told her to "do as we had been instructed, do as we had been told," said Klarkowski, a nurse in Marin Courty.
"Given instructions from the judge and all the evidence from prosecution, which was pretty tidy, I felt that was it, I didn't have much choice," she added.
Medical marijuana is legal in California and eight other states but is not recognized as medicine by the federal government.
After the trial, a majority of the jurors said they would have acquitted Rosenthal if they had known his pot growing operation had been authorized by the city of Oakland, one of many facts related to the medical uses of pot not allowed into the courtroom.
The defense's case Tuesday was complicated by the fact that Craig invoked her Fifth Amendment right against compelled self-incrimination, fearing she could be held in contempt for refusing to obey Breyer's orders that she not discuss the case with outside experts during the trial. The government could give her immunity but prosecutor George Bevan said that was unlikely.
But Dennis Riordan, the lawyer for Rosenthal, said the case for a retrial, while highly unusual, was strong.
"Any external evidence like that is a basis for a new trial," Riordan said.
Attorneys for Rosenthal also argued the jurors had been given bad information. While the evidence was strong that Rosenthal had a warehouse full of pot plants that he made no attempt to hide, jurors could have gone the route of "jury nullification," which would have allowed them to acquit based on their belief that the crimes charged should not be criminal offenses.
Rosenthal, a 58-year-old writer and High Times columnist, is scheduled for sentencing in early June. He could face anywhere from five years to 20 years in prison. Judge Breyer is not expected to rule on the new trial request for at least a week.
On Tuesday, Rosenthal's wife Jane Klein was giving friends advance copies of his new book, "Why Marijuana Should Be Legal."