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A juror in the Ed Rosenthal medical marijuana trial took the Fifth Amendment on Tuesday rather than divulge the details of a conversation she says she had with an outside lawyer during the trial. Juror Marnie Craig appeared in U.S. District Judge Charles Breyer’s courtroom as part of a high-powered effort to set aside a federal jury’s vote to convict Rosenthal on three drug charges. According to two other jurors testifying under subpoena, Craig had called a lawyer prior to deliberations and asked if she had to follow Breyer’s admonishment to apply the relevant law and — if the prosecution had proved its case — vote to convict. Though Craig chose to plead the Fifth on the advice of her court-appointed lawyer, Mary McNamara of Swanson & McNamara, she had previously spoken to investigators working with Rosenthal’s new lawyer, Dennis Riordan. She has not disclosed the name of the lawyer she says she called during the trial. Craig’s story was corroborated on the stand Tuesday by fellow juror Pamela Klarkowski. “We didn’t actually speak about the case, but there was a conversation that came up on the way home from the trial about juries making a decision,” Klarkowski said, adding that Craig later told her she had a lawyer friend she wanted to call. “I said, ‘Well, if you do, let me know what you find out.’” When told later that the lawyer said they have to follow the law, Klarkowski said she knew “that was it.” “I didn’t have much of a choice in what I was thinking,” she said. She called the prosecution’s case “tidy.” During the trial earlier this year, Breyer ruled that the defense would not be allowed to argue that Rosenthal grew his marijuana for medical purposes. Rosenthal and his supporters were outraged that the jury did not hear that information. Though the jury took mere hours to convict Rosenthal for running a large medical marijuana operation in Oakland, several of them later publicly apologized to Rosenthal. Juror Eve Tulley-Dobkin testified Tuesday that she found out about Craig’s conversation with the lawyer “about five minutes” after the trial ended. She said she heard it from Hilary McQuie, a coordinator with Americans for Safe Access, a medical marijuana advocacy group, during a chat on the 19th floor of the Phillip Burton Federal Building. McQuie apparently told some of the jurors that Rosenthal’s lawyers had been prevented from putting on a medical marijuana defense. That day, McQuie had told The Recorder that jurors were extremely upset to learn they could have ignored the law and voted to acquit. Tulley-Dobkin said Craig divulged her conversation at that time. McQuie corroborated Tulley-Dobkin’s testimony Tuesday, explaining that she realized the significance of Craig’s action and had informed Rosenthal’s defense team. Craig’s Fifth Amendment invocation complicated Tuesday’s hearing, but Breyer allowed other testimony subject to later objections. Riordan suggested to Breyer that Craig is concerned about being forced to divulge the name of the attorney she spoke with and any contempt of court rulings that might ensue. Breyer indicated he probably wouldn’t imprison Craig. Assistant U.S. Attorney George Bevan Jr. said no final decisions have been made, but he would recommend that Craig not be given immunity. Under the law, there is a presumption of prejudice if a jury was influenced by outside forces. But it can be rebutted, which leaves Breyer to decide whether the influence altered the jury’s deliberations or affected the outcome. Riordan knows it’s a long shot, but he’s succeeded before in undoing convictions in post-trial proceedings. He persuaded Superior Court Judge James Warren to overturn a second-degree murder conviction in the case against Marjorie Knoller, one of the husband-and-wife defendants in the infamous dog-mauling trial. Still, Riordan said after the hearing, “once a jury convicts, it is an extremely rare outcome that the verdict is ever set aside.” Rosenthal is due to be sentenced in June.

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