Judge Delays Ruling On Medical Pot Mistrial

By Ann Harrison, AlterNet. Posted April 10, 2003.

For the second week in a row, U.S. District Judge Charles Breyer has delayed ruling on whether convicted medical marijuana grower Ed Rosenthal is entitled to mistrial.

Rosenthal's defense team contends that Rosenthal's right to an impartial jury was violated when juror Marney Craig revealed that she received advice from an attorney friend during the trial that caused her to vote against her conscience. "This court has a major question about whether due process was or was not afforded in this case," said Rosenthal's attorney Dennis Riordan.

Part of the delay in the ruling has been prompted by Craig's refusal to testify, which Riordan says weakens Rosenthal's case. Craig stated in a written declaration that she asked her attorney friend if she had to follow the judge's instructions and decide the case only on the evidence, which excluded any discussion of medical marijuana.

The attorney told Craig that she would get into trouble if she disregarded the judge's instructions, leading her to believe that she had no right to acquit. Craig said she passed this information to another juror, Pamela Klarkowski, a nurse from Petaluma. "I felt that there was only one choice," said Klarkowski when she heard the advice.

The jury later convicted Rosenthal on three federal counts of marijuana cultivation and conspiracy. Unless a mistrial is declared, Rosenthal faces a mandatory minimum sentence of five years when he is sentenced in June. He remains free on bail.

Craig's admission prompted an earlier hearing on April 1, in which Judge Charles Breyer considered holding Craig in contempt for refusing to obey his order against discussing the case. Klarkowski testified that Craig had discussed the lawyer's advice. Craig, a 58-year-old property manager from Novato, California, has declined to name her attorney friend. She was subpoened by the defense, but invoked her 5th Amendment right against compelled self-incrimination unless the government granted her immunity from prosecution.

During the second evidentiary hearing on April 8, U.S. Prosecuter George Bevan declined to grant Craig immunity from prosecution and said that portions of her declaration that documents her uneasiness with the withholding of evidence at trial were inadmissable. "Her declaration does not establish misconduct by a juror," said Bevan.

Craig again invoked the 5th Amendment. But Riordan said he knew of no case in the past 200 years where a juror has been penalized for seeking outside legal advice during a trial. "If the court overrules the 5th Amendment privilege, and the compelled testimony is never used against her in any ruling of the court, she will never have to fear that the testimony will be used against her in any legal proceedings," said Riordan.

The judge backed away from a contempt charge. He said he was uncomfortable with Craig's contact with the attorney, but suggested that she had asked him only a "derivative" question regarding a point of law. "He said she has to follow the law. Is someone prejudiced by a lawyer saying you have to follow the law? I don't think so," said Breyer.

Riordan told Judge Breyer that Craig was prejudiced by the attorney's inaccurate advice that a hung jury can only result if a judge endorsed the idea in his instructions. "You would never say you can only have a hung jury if I tell you and if you vote the other way, you will get into trouble," said Riordan to the judge. "The point is that this juror received information that she would never have gotten in an exchange with the court."

The judge replied that he would never attempt to tell jurors when they could hang a jury, or even use the term hung jury. Riordan asserted that any outside communication was improper and Craig's testimony was needed to document her mental state during deliberations after receiving the attorney's advice, and that any such information should be admissable. But the judge declined to compell testimony from Craig and discharged the juror from further testimony suggesting that her declaration was sufficient. He gave the defense team 10 days to submit further briefs supporting their request for a retrial.

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