Sherry Swiney

http://www.nytimes.com/2003/02/05/national/05POT.html?th

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February 5, 2003
Jurors Who Convicted Marijuana Grower Seek New Trial
By DEAN E. MURPHY
 

SAN FRANCISCO, Feb. 4 - In an unusual show of solidarity with the man they convicted last week, five jurors in the trial of a medicinal marijuana advocate issued a public apology to him today and demanded that the judge grant him a new trial.

The jurors said they had been unaware that the defendant, Ed Rosenthal, was growing marijuana for medicinal purposes, allowed since 1996 under California state law, when they convicted him on three federal counts of cultivation and conspiracy. He is to be sentenced in June and faces a minimum of five years in prison.
"I'm sorry doesn't begin to cover it," said one of the jurors, Marney Craig, a property manager in Novato. "It's the most horrible mistake I've ever made in my entire life. And I don't think that I personally will ever recover from this." 

The judge in the case, Judge Charles R. Breyer of Federal District Court, had barred Mr. Rosenthal's defense from mentioning the state law because he was indicted under federal law, which does not allow the growing of marijuana for any purpose.
When he was arrested last February, Mr. Rosenthal was cultivating starter plants in a warehouse that were to be distributed to seriously ill patients by medical marijuana clubs in the San Francisco Bay Area. Mr. Rosenthal, who lives in Oakland, was acting in his official capacity as "an officer of the city" under Oakland's medical marijuana ordinance, Oakland officials said.

In a statement read outside the federal courthouse here, the five jurors, joined by an alternate, said they would not have voted to convict Mr. Rosenthal if they had been allowed to consider the California law. The group said they represented the views of at least two others who had served on the 12-member panel.
"In good faith, we as jury members allowed ourselves to be blindfolded to weigh the evidence before us," the statement said. "But in this trial, the prosecution was allowed to put all of the evidence and testimony on one of the scales, while the defense was not allowed to put its evidence and testimony on the other scale. Therefore we were not allowed as a jury to properly weigh the case."

One by one, the jurors stepped up to a lectern and apologized to Mr. Rosenthal, his wife, Jane Klein, and their daughter, Justine, who stood nearby.
"We as a jury truly were kept in the dark," said Charles Sackett of Sebastopol, who was the jury foreman. "I never want to see this happen again."
In a striking demonstration of how deep the divide remains between federal and California laws on medicinal uses of marijuana, the jurors were joined by the San Francisco district attorney and two members of the San Francisco Board of Supervisors.

Eight other states allow the sick and dying to smoke or grow marijuana with a doctor's recommendation. 
"This is really a travesty," Matt Gonzalez, the board's president, said of the court's decision to exclude the state law from Mr. Rosenthal's defense. The jurors "have been violated by this court," Mr. Gonzalez said. Before holding the news conference, the jurors attended a hearing during which the United States attorney's office asked that Mr. Rosenthal's bail be revoked. Judge Breyer, ruled, however, that Mr. Rosenthal was not likely to flee and let him remain free on $200,000 bond pending his sentencing. Though none of the jurors made their feelings known to the judge at the hearing, where the five of them and the alternate sat at the front of the courtroom, Mr. Sackett said he was certain their presence helped persuade the judge to allow Mr. Rosenthal to remain free.
"We did not say a word," Mr. Sackett said. "We were not disrespectful. We just wanted to make a statement."

Mr. Rosenthal's lawyers said they had filed a motion to have the indictment against Mr. Rosenthal dismissed. If that fails, they said, they will file a motion for a new trial. If that should also fail, the lawyers said, they will appeal the verdict to the United States Court of Appeals.