Pot Jurors Say They Received Outside Legal Advice

By Ann Harrison, AlterNet. Posted February 26, 2003.

Lawyers for convicted medical marijuana grower Ed Rosenthal say he is entitled to a new trial because two jurors in the case received outside legal advice that compromised their ability to make an impartial judgment.

Jurors Marney Craig and Pamela Klarkowski have been subpoenaed by Rosenthal's attorneys, who today presented U.S. District Judge Charles Breyer with evidence of juror misconduct.

Judge Breyer repeatedly admonished the jurors to judge the case according to federal law, and consider only the evidence presented in court. But Craig has revealed that during the trial, she contacted a friend who is a practicing attorney. Craig believes that her decision to seek his advice was not improper because she revealed no details about the case, and asked a narrow question about a point of law.

''I simply asked him if I had to follow the judge's instructions, or if I had any leeway at all for independent thought,'' said Craig in declaration. "His answer was that I definitely did have to follow the judge's instructions, and that there was absolutely nothing else that I could do.''

Craig said that her friend, whom she declined to name, further warned her that she could get into trouble if she strayed from the judge's instructions. She passed this information on to Klarkowski, who said in her declaration that the two women had discussed whether past cases challenged the law.

Craig and Klarkowski later voted with their fellow jurors to convict Rosenthal on three federal counts of marijuana cultivation and conspiracy. Rosenthal remains free on a $200,000 cash bond, but faces a mandatory minimum sentence of five years in federal prison when he is sentenced in June.

"In order for a new trial to be warranted, we simply have to show there is a reasonable possibility that the independent judgment, or freedom of action, of one or more of the jurors was affected in some way," said Rosenthal attorney Joe Elford. ''We have met that standard because Marney Craig was given what we consider to be erroneous legal advice which suggested she would get into trouble if she refused to convict."

The defense team has until March 14 to present a motion for a new trial. But when Rosenthal's attorneys alerted Judge Breyer of potential juror misconduct on February 20th, he gave the defense just three business days to produce evidence of impropriety, and reasons for requesting hearing to determine if the information warranted a new trial. Government prosecutors now have until March 5 to respond. The San Francisco U.S. Attorney's Office declined to comment on the potential impact of juror prejudice in the case. But the government must show beyond a reasonable doubt that the jurors are lying, or that the extraneous influence or improper contact was harmless.

Craig confirms that the advice she received during the trial did affect her actions in the courtroom. She said she was upset to discover after the verdict that she had the power to reject the judge's instructions, and vote to acquit Rosenthal if she felt the law itself was unjust. She said she wished someone had told her about the right to jury nullification.

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