Ed Rosenthal’s Conviction Overturned

From the AP:

A federal appeals court today overturned the marijuana-growing conviction of the self-proclaimed “Guru of Ganja” who has written books on how to grow pot and avoid getting caught.

The court cited jury misconduct in overturning Ed Rosenthal’s conviction, but it otherwise upheld federal powers to charge marijuana growers.

Rosenthal was convicted more than two years ago for cultivating hundreds of marijuana plants for a city of Oakland medical marijuana program. U.S. District Judge Charles Breyer sentenced him to one day in prison, saying Rosenthal reasonably believed he was immune from prosecution because he was acting on behalf of city officials.

While the federal court decision upheld federal power to convict medical marijuana growers, it did open another avenue of approach in these cases: Jury nullification.

A three-judge panel of the San Francisco-based appeals court, in overturning the verdict, said a juror had had inappropriate communication with an attorney.

“Juror A” had asked the attorney during trial whether she had to follow the law or could vote her conscience because she suspected Rosenthal was growing marijuana for medicinal uses. The attorney told her she must follow the judge’s instructions to follow federal law or she would get in “trouble.”

“We hold that here the communication was an improper influence upon Juror A’s decision to acquit or convict,” the appeals court wrote.

Perhaps it’s time to begin a major educational campaign in the medical marijuana states letting potential jurors know they can vote to acquit in those states.

Stephen Gordon

I like tasteful cigars, private property, American whiskey, fast cars, hot women, pre-bailout Jeeps, fine dining, worthwhile literature, low taxes, original music, personal privacy and self-defense rights -- but not necessarily in this order.

  1. It’s been waaaaaay past time to inform the public of their right to judge the law as well as the defendant. The seminal case of U.S. vs. Moylan spells it in it’s summation:

    “We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.” (US vs Moylan, 417 F 2d 1002, 1006 (1969)).

    It doesn’t get any plainer than that…

  2. Oh, and BTW; there is an (admittedly apocryphal) instance of this happening in a cannabis case. According to one poster at CannabisNews, who had in his possession the book Marijuana Law which was gathered in evidence at his home during the police raid on it. Inside the book was an explanation of US v. Moylan, and the defense attorney asked the cop in charge of the bust to read it on the stand; the cop, who previously was quite talkative about specifics of the raid, suddenly fell silent.

    The defense attorney then read it for the jury, and they acquitted. Need I say more? A medicinal grower would be well advised to have a copy of the book in his or her possession in case of (sadly, highly probable) police ‘visits’.

  3. And one last thing: U.S. v. Moylan is Federal ‘case law’, which comprises the vast majority of the laws brought before any court. It’s the kind of law that prosecutors and judges swear by, as it usually benefits them as opposed to the citizen at large. This is the most virulent poison pill that they can be legally forced to swallow, courtesy of their precious ‘case law’, and the ones aware of it are absoluetly terrified of it ever being applied in their courts. For it negates the (improperly!) assumed powers of judges to demand that the jury adhere to his dicates only regarding the case, and not to ‘vote their consciences’, as US v. Moylan so clearly allows they may do.

  4. Sorry, but the italics seem stuck, despite my use of proper code. I hope this is readable, as I can’t emphasize how important this is to get the word out about this 36 year old case.

  5. A couple of guys used to hand out FIJA info in front of the Federal Courthouse in Portland. Info can be placed in the local libraries and if you have a list of registered Libs in your area using FIJA info in a mailer as a way to interest them in the party work well.

  6. Last time I was called for jury duty, one person after another was coerced into serving despite their excuses. Under penalty of perjury, I had to answer the question of whether I would be able to follow the judge’s instructions. Ha-ha-ha-ha-ha!

    I explained that I knew two jurors personally who had trusted a judge and regretted it to this day. (One sent a young man to jail for having in his car a 2″ paring knife for paring his apples at lunch. Turns out the Jr. College parking lot was zero tolerance. The judge had no choice, but the jury could have stopped the injustice if they’d known. And my boss was on a jury involving some felony drug possession or other non-violent offence. The judge did not tell them it was a third strike. She felt an injustice was done; betrayed by the judge.)

    I was not able to tell these stories in detail, but got my point across, was thanked and excused; the judge knows if you really mean it. Jury votes really count, so I was sorry not to serve.

  7. It’s extremely difficult to seat jurors who will not click their heels to whatever tune the judge hums. As those of us who were around then can testify, Ed Rosenthal probably is the single most important reason Medical Marijuana passed in California. Congratulations Ed!

  8. I, for one, would be willing and able to follow any legal instructions from a judge. (Not that I would be selected for a jury anyway.)

    We are all going to have to work harder to get on juries and make a difference. There is no requirement to overtly display our knowledge or attitude. And once we are selected, remember that we want to put the true lawbreakers away. Voting your conscience works both ways!

  9. Let’s quit pussyfooting around the issue: some folks just like to smoke marihuana and as long as they are adults they have the right to smoke marihuana. Period. The 21st Amendment ended alcohol prohibition and I suggest that the 21st also ended marihuana prohibition. Are we slaves that the government can prevent adults from using our bodies as we see fit? Are we not free men and women who can freely smoke, grow and possess marihuana if we so choose? I say we are free and if the government says we are not free I say the government does not want us to be free. Marihuana can benefit the sick and I support medical uses of marihuana but marihuana can also benefit the well and I support the use of marihuana by healthy free men and women.

  10. Witholding all evidence of the medical use for which Ed’s clones were destined– THAT was the most egregious abuse IMHO.

    The “Truth in Trials Act”, H.R. 4272 MUST be passed.

    Had the “whole truth” been revealed in Ed’s trial, the jusry would have “nullified” in a heartbeat.