A federal judge on Friday denied Ed Rosenthal's motion for a new trial,
clearing the way for the Oakland medical marijuana guru to be sentenced June
4.

Rosenthal's claims of judicial error and juror misconduct didn't convince
U.S. District Judge Charles R. Breyer of San Francisco to throw out his Jan.
31 conviction on three federal marijuana-related felony charges.

"It wasn't unexpected -- he's had an agenda throughout this trial... he has
shown his prejudice throughout," Rosenthal said Friday. "He had to bend the
law, to find a crooked path to get to where he wanted to be."

Rosenthal, 58, a renowned author and columnist on marijuana, grew pot under
the auspices of California's medical marijuana law and related Oakland city
ordinances. But federal law still prohibits all marijuana cultivation,
possession and use, and federal agents arrested the self-described "guru of
ganja" in February 2002.

Breyer forbade Rosenthal from defending himself based on the state and city
laws, ruling that federal law takes precedence and is the only relevant law
in federal court. Most of the jurors who convicted Rosenthal, upon learned
all the facts after the trial, apologized and now support him.

Rosenthal's lawyers sought a new trial, arguing Breyer shouldn't have barred
them from mounting a defense based on Rosenthal's belief that state and city
laws immunized him from federal prosecution. They also argued the judge
improperly excluded 19 people with pro-medical-marijuana beliefs from the
jury, and later improperly instructed the jury about its right to "nullify,"
or vote their consciences instead of obeying the law.

And they argued Rosenthal's right to a fair trial was violated by the
misconduct of juror Marney Craig of Novato, who during the trial asked a
lawyer friend whether she had to follow the law and Breyer's instructions
explicitly. The friend told her she did, and she shared that with another
juror.

Breyer on Friday ruled no federal official ever misled Rosenthal into
thinking he was immune from prosecution, and Rosenthal got the kind of
jurors to which any defendant is entitled -- people whose personal beliefs
won't bias them from following their court-given instructions to follow the
law.

Breyer also found his instructions to the jury didn't "preclude the jury
from bringing its sense of justice to bear on its verdict, nor did they
divest the jury of its inalienable right to nullify. As such, Rosenthal is
not entitled to a new trial on this basis."

And he rejected the argument "that a new trial is warranted because Craig's
friend's exhortations to follow the law interfered with Craig's inclination
to disobey it," an idea in conflict with the judicial duty to prevent
nullification whenever possible. "Rosenthal has failed to identify a single
published decision in support of this argument, and this Court will not be
the first to write one."

Breyer has said he'll consider legal reasons to issue a sentence less than
the five-year mandatory minimum prison term Rosenthal faces. Rosenthal has
vowed an appeal.


Pubdate: Tue, 20 May 2003
Source: Oakland Tribune, The (CA)
Copyright: 2003 MediaNews Group, Inc. and ANG Newspapers
Contact: triblet@angnewspapers.com
Website: http://www.oaklandtribune.com/