Posted: June 4, 2003 at 9:50 a.m. SAN FRANCISCO (BCN) -- U.S. District Judge Charles Breyer sentenced convicted marijuana grower Ed Rosenthal to one day in federal prison with credit for time served, essentially setting him free.
SMOKE CLEARS IN POT CASE
Hard Fought Federal Prosecution Ends With One-Day Sentence for Medical Marijuana Grower
When U.S. District Judge Charles Breyer handed marijuana guru Ed Rosenthal a stunning one-day sentence Wednesday, he turned what had looked like a victory for the federal government into a celebration for medical marijuana supporters.
Breyer's announcement of the time-served sentence caused Rosenthal supporters in the packed San Francisco courtroom to erupt in cheers. A parking lot across from the federal courthouse became the stage for a full-throated condemnation of Attorney General John Ashcroft, complete with loudspeakers and larger-than-life puppets. And one repentant juror, on hearing the news, burst into tears of joy.
"I can't say that the cause isn't further down the road now than it was," said Rosenthal attorney Dennis Riordan, who was hired after his client's January conviction.
A smiling San Francisco District Attorney Terence Hallinan, a big supporter of the state's medical marijuana law, said Breyer's decision "did justice."
"Hopefully, this will make [the Justice Department] think about what they're doing," Hallinan said.
But Rosenthal - despite the slap on the wrist - continued his unabashed criticism of the judge outside the courtroom.
"This judge has no honor," he said after a rally in the parking lot rented for a post-hearing press conference. "If he had honor, he would have dismissed this case in the beginning.
"He didn't want to give me a light sentence," Rosenthal continued. "He was forced to do it by public opinion."
Riordan said his client still plans to appeal Breyer's pretrial rulings barring a medical marijuana defense. Breyer wouldn't let Rosenthal's lawyers tell the jury he was growing the plants for San Francisco's HARM Reduction Center.
Riordan predicted the government would appeal Breyer's decision to depart downward from the mandatory minimum sentence. The U.S. attorney's office had no comment. Assistant U.S. Attorney George Bevan Jr. prosecuted the case.
Riordan went out of his way to distance himself from his client's comments about Breyer. On appeal, Riordan is likely to argue that Rosenthal should have been allowed to present a medical marijuana defense since his operation at an Oakland warehouse was approved by city officials. The approval gave Rosenthal a reasonable expectation that what he was doing was legal, Rosenthal and his supporters have argued.
The trial was cast as a clash between federal drug laws and California's Proposition 215, a medical marijuana initiative similar to those passed in several states. The government argued that Rosenthal was in clear violation of federal law, but United States v. Rosenthal, 02-053, gave medical marijuana advocates a national stage on which to advance their position.
Critics of the prosecution placed heavy pressure on Breyer to go easy on Rosenthal. Attorney General Bill Lockyer wrote asking for a light sentence, as did eight members of a jury that took less than a day to convict him. The New York Times used its editorial pages over the weekend to urge no prison time in a case it called a "miscarriage of justice."
Charles Sackett III, the foreman of the jury that convicted Rosenthal, said Breyer's decision was "right on. ... At one point he paraphrased a letter we sent him, so we're very pleased about that. He listened to us."
Later, Sackett embraced Rosenthal. "I'm so happy for you, sir," Sackett told the bespectacled author of several books on marijuana cultivation.
The government argued that Rosenthal should be sentenced to at least five years, and that as a leader of a marijuana operation he is not eligible for a so-called "safety valve" departure below the mandatory minimum. The probation department found that he is eligible and recommended a sentence of less than two years.
Riordan - the Riordan & Rosenthal ( no relation ) partner who was hired after the conviction - said he was not surprised that Breyer departed. "Judges agree with the probation department 90 percent of the time," Riordan said.
But Congress recently signaled its dislike of downward departures. Under the Feeney Amendment, a rider attached to the Amber Alert legislation, Breyer will have to explain his departure in writing. The explanation will be sent to federal court officials in Washington, D.C., and made available to members of Congress.
Two calls to the Justice Department were not returned, but the Drug Enforcement Agency was muted in its reaction.
"We did our job in a professional way. Our job is to conduct a criminal investigation, take the dope off the streets and refer the cases to the U.S. attorney's office for prosecution," DEA spokesman Richard Meyer said. "What happens with it after that is out of our hands."
The public regrets expressed by jurors raised the issue of jury nullification, as several claimed that, despite the letter of federal law, they never would have convicted Rosenthal if they knew he grew medical marijuana. Present at Wednesday's sentencing was Godfrey Lehman, an author of several books and pamphlets about jury rights who said he was contacted by Sackett after the verdict. Rosenthal supporters also posted billboards throughout the Bay Area reading: "Free Ed. Free the Jury."
Rory Little, a Hastings College of the Law professor and former assistant U.S. attorney, said he admired Judge Breyer for his handling of the case.
"He stood very strong in the face of a lot of public criticism to enforce the federal law," said Little, who supports the conviction but said a long sentence is unnecessary. "He appears to have considered the various purposes of punishment."
US CA: Wire: Marijuana Guru Ed Rosenthal Freed After One-Day Sentence
URL: http://www.mapinc.org/drugnews/v03.n830.a01.html
Newshawk: Prohibition Kills
Pubdate: Wed, 04 Jun 2003
Source: Associated Press (Wire)
Copyright: 2003 Associated Press
Author: Kim Curtis, Associated Press Writer
Note: More news items about this will be posted, as soon as they are
available, here: http://www.mapinc.org/people/Ed+Rosenthal
MARIJUANA GURU ED ROSENTHAL FREED AFTER ONE-DAY SENTENCE
Ed Rosenthal, the self-proclaimed "Guru of Ganja," walked free Wednesday after a federal judge sentenced him to one day in prison for a marijuana conviction. He could have been sentenced to as much as 60 years behind bars.
Rosenthal, convicted in February of growing more than 100 marijuana plants in an Oakland warehouse, has become the focus of a growing national debate about medical marijuana and a battle between the federal government and the nine states that have declared such use legal.
Rosenthal, 58, has argued his actions were legal under a 1996 law passed by California voters that allows pot use for medical purposes. He also said he was acting as an agent for the city of Oakland's medical marijuana program.
"I take responsibility for my actions that bring me here today. I took these actions because my conscience led me to help people who are suffering," Rosenthal said outside the courtroom. "These laws are doomed."
U.S. District Judge Charles Breyer sentenced Rosenthal to one day in prison on each of three counts, to run concurrently, and then set him free after declaring Rosenthal had already served that time. Rosenthal, also fined $1,000, will be on supervised release for three years.
The ruling was met by wild cheering and applause in the courtroom.
"I think it's a marvelous victory for states' rights and the medical use of marijuana," said Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws. "It sends a strong signal to the federal government that they should reconsider their current program of arresting patients and caregivers in California.
"At a time when they should be concerned about terrorism, they are spending significant resources chasing, arresting and prosecuting medical marijuana cases."
Several of the jurors who found Rosenthal guilty of marijuana cultivation later said they would have acquitted him if they had known he was growing the plants for patients in Oakland. Breyer did not allow any mention of medical marijuana at the trial.
Last week, California Attorney General Bill Lockyer asked Breyer for leniency in Rosenthal's sentencing, citing the California Compassionate Use Act of 1996. The federal probation department recommended a 21-month prison term. Prosecutors asked for a 6 1/2-year prison term.
Prosecutor George Bevan said Wednesday that Rosenthal was not simply helping the ill.
"This operation is a cash cow. He put out thousands and thousands of plants," Bevan said. "I don't think anyone disagrees with helping sick people, but as far as we're concerned, it was a business. His cultivation is a direct violation of state laws."
Federal law does not permit legalization of marijuana for medical use, although Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington allow it.
MEDICAL POT ACTIVIST LOSES NEW TRIAL BID
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.
US CA: The Feds Play Bully in Oakland
Pubdate: Sun, 01 Jun 2003
Source: Playboy Magazine (US)
Copyright: 2003 Playboy Enterprises, Inc.
Contact: edit@playboy.com
Website: http://www.playboy.com/
Details: http://www.mapinc.org/media/343
Author: James R. Petersen
THE FEDS PLAY BULLY IN OAKLAND
Many Americans first heard of marijuana grower Ed Rosenthal this past February, when the jury that convicted him of three felonies (growing more than 100 plants, conspiring to cultivate and maintaining a growing operation) demanded that its verdict be overturned. Five panelists and an alternate stood on the steps of the federal courthouse in San Francisco and said they had been duped into sending a man who was not a criminal to prison.
What the hell happened?
Seven years earlier, California voters had approved Proposition 215. It stated that sick people who had a doctor's recommendation could use marijuana to alleviate pain, to relieve nausea that accompanies chemotherapy, to restore appetite.
City officials in Oakland passed an ordinance designating a local cannabis club as an official source for medical pot. It issued Ed Rosenthal a license to grow and distribute the drug to a medical co-op. Rosenthal, who has written 20 books on marijuana, took over an empty warehouse and cultivated plants.
California's attorney general, Bill Lockyer, urged the Drug Enforcement Administration to adopt guidelines on medical marijuana that would show "a proper sense of balance, proportion and respect for states' rights." DEA chief Asa Hutchinson shot him down: "Surely you are not recommending we sidestep our country's long-standing practice of rigorous scientific research before declaring a potentially harmful drug to be medicine. The FDA has never in the past approved medicine by popular referendum." ( What Hutchinson didn't mention is that the feds must approve any study using actual marijuana. So far they have refused to do so. ) The DEA chief added, without citing evidence, that "medical marijuana laws are being abused to facilitate traditional illegal trafficking."
On February 12, 2002, the same day Hutchinson gave a speech in San Francisco praising the war on drugs, federal agents raided Rosenthal's warehouse. They seized 3163 plants and arrested the man who had grown them. When Hutchinson boasted about the arrest during his speech, his audience booed.
A DEA spokesman told reporters: "There is no such thing as medical marijuana. We are Americans first, Californians second."
U.S. District Judge Charles Breyer, brother of U.S. Supreme Court Justice Stephen Breyer, caught the case. In pretrial hearings he ruled that the defense could not mention Proposition 215. Further, the judge said, Oakland officials could not testify that they had given Rosenthal a license. He refused to let a county supervisor discuss the defendant's motives for growing pot or describe the work he'd done for the city. Breyer also blocked the appearance of several character witnesses.
In a pretrial motion, Rosenthal's lawyers argued for immunity, citing a law that protects federal, state and local officials who possess or transport illegal drugs as part of their jobs ( e.g., taking evidence to court, working undercover ). The judge wouldn't have it. Congress intended the law to protect cops, not caregivers. Breyer also prohibited a defense based on the doctrine of "entrapment by estoppel"--that is, a traffic cop can't tell you it's OK to cross against the light, then ticket you for jaywalking.
During jury selection, Breyer stacked the deck. He questioned 80 potential panelists, weeding out those who had positive opinions about medical marijuana, who had voted for Proposition 215 or who understood the conflict between state and federal law and favored the former. These decisions eliminated Rosenthal's defense before it even began.
Supporters paid for billboards emblazoned with the message COMPASSION, NOT FEDERAL PRISON. Protesters stood outside the courthouse, their mouths taped shut.
In his closing remarks, a prosecutor told the jury: "Cultivation of marijuana is a federal offense. Period. Nothing else matters." As for the vote on Proposition 215, the prosecutor said: "This is a federal courtroom. It is not a polling place."
Judge Breyer's remarks were even more dismissive. The judge had told the jurors to disregard the 1996 vote. "You are not to consider the purpose for which the marijuana was grown. You cannot substitute your sense of justice, whatever that is, for your duty to follow the law."
Jurors delivered the verdict the government wanted. Then they rebelled. They told reporters that they had felt manipulated, intimidated and controlled. One juror reportedly worried the judge would send them to jail if they voted their conscience. When the panel realized it had been duped, its foreman read a public letter of apology: "I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy and regulation, as well as doctor and patient rights, and indeed your family, are irrelevant to this case." Another juror added: "I did something so profoundly wrong that it will haunt me for the rest of my life. I helped send a man to prison who does not belong there." So much for justice.
Judge Breyer will sentence Ed Rosenthal on June 4. The man with the benevolent green thumb faces at least five and as many as 85 years in federal prison.
Asa Hutchinson has moved on to tackle homeland security.
MEET AMERICA'S MARIJUANA MARTYR
He's the Alan Titchmarsh of the pot world, with countless grow-your-own tomes and a licence to supply for medicinal use. But in what some are calling a Bush show trial, Ed Rosenthal now faces 40 years in jail. There are two reasons why the case of Ed Rosenthal has become a cause celebre for the marijuana-decriminalisation movement.
The first is that, for the past 30 years, he has been the world's foremost cultivator of cannabis plants, and a pioneer in hydroponic growing techniques.
His many books - from Indoor/Outdoor Marijuana Growers' Guide in 1974 to the recently reissued Why Marijuana Should Be Legal - have been international bestsellers. And his advice column, "Ask Ed" - available online as well as in magazines such as High Times and Cannabis Culture - has come to be regarded as the Delphic oracle for pot-growers, the Gardeners' Question Time of getting high.
The second reason stems from the federal government's decision to swoop, without warning, on both his home and his hydroponic growing laboratory in Oakland, California in February last year. Rosenthal was charged with multiple felony counts of manufacture of an illegal narcotic, and put on trial at the beginning of this year. What the feds did not seem to appreciate - or care about - was that Rosenthal was growing his plants for the sole use of Aids, glaucoma and cancer patients seeking relief from pain. He did so at the behest of the city of Oakland, which in turn was acting in accordance with California's Compassionate Use Act of 1996 that permits the use of marijuana for medicinal purposes.
In other words, what he was doing was entirely legal, at least under Californian state law. But that was not something the court chose to share with the jury. Rosenthal's lawyers were not allowed to mention the 1996 Act, or the fact that he was acting as a formally enshrined officer of the city of Oakland. As a result, the jury felt obliged to convict him, even though several of them wondered during their deliberations just how much of a criminal he was. As soon as the trial was over and the full truth of Rosenthal's circumstances became clear to all, five of the 12 jurors staged an open revolt and demanded that he be granted a new trial. "Last week," one of the jurors, Marney Craig, wrote at the time, "I did something so profoundly wrong that it will haunt me for the rest of my life. I helped send a man to prison who does not belong there."
It has not quite come to that yet - he is not due to be sentenced until early June, and the controversy over his case is causing considerable ructions in the legal system that may yet keep him out of prison - but it is clear that Ed Rosenthal, on top of his previous celebrity status among marijuana cultivators, has become a symbol of all that is wrong and distorted about America's much-ballyhooed War on Drugs.
Essentially, he has become a pawn in an increasingly nasty battle between the federal government, with its virulently intolerant attitude to illegal drugs in all forms, and individual states, including California, that have sought to liberalise the laws around the edges by popular referendum. The federal government's attitude has become particularly unforgiving under the Bush administration, which, unlike any administration before it, has used paramilitary tactics to break up medical marijuana clubs, destroy plants kept by terminal patients, and arrest people such as Rosenthal who had no reason to suppose that they had fallen foul of the law at all.
"The feds are coming from totally insane places," an uncowed Rosenthal said in a phone interview. "A lot of people are frightened about what is going on in the US - and they should be. Is this Imperial Rome?"
What you think of Ed Rosenthal depends a bit on where you are coming from. If you are worried about the consequences of increasing marijuana consumption then he looks like the supreme irritant.
As much as half of the cannabis consumed in Britain is now grown domestically, according to a new study by the Joseph Rowntree Foundation, and it's a fair bet that the growing fad for both garden and indoor cultivation has been fuelled by the impeccable advice offered by the pot world's Alan Titchmarsh.
It was Rosenthal who first guided the indoor-growing movement away from ordinary fluorescent lights to high-intensity discharge lights.
He helped two generations of home-growers to regulate the nutrients required in a soil-free environment. More recently, he has pioneered the cloning of high-quality cannabis.
None of this is good news if you believe that marijuana is a public-health hazard that needs to be eliminated through effective law enforcement.
On the other hand, if you believe - as many on both sides of the Atlantic do - that legal crackdowns on marijuana use do far greater social harm than the drug itself, then Ed Rosenthal starts to look like a veritable guru. As Oakland's official pot-grower, he was providing medical marijuana clubs with "starter plants" to provide high-quality product to the sick and dying. Nobody could have made pot more respectable - the very reason, he believes, why the Bush administration came after him. "I was a trophy arrest, and they were going to make a big example out of me," he said. "I think they have a special priority to try to stop medical marijuana.
As the best-known person, I carry the greatest cultural impact."
In fact, the feds have gone after plenty of other people.
Last September, the Drug Enforcement Administration raided a marijuana club in Santa Cruz, to the fury of the local authorities who have now filed suit in federal court demanding damages as well as an injunction to prevent the DEA from infringing on state affairs again.
Then, in February, federal agents raided 100 homes around the country in search of bongs and pipe-making materials. They made more than 50 arrests, even though they found no drugs, and even though, in California and other states, possession of marijuana pipes is explicitly decriminalised.
Rosenthal is certainly correct, however, in saying that his arrest was the most spectacular. His treatment has been condemned not only by drug-reform groups but also by The New York Times and other newspapers. The judge in his case, Charles Breyer of the US District Court in San Francisco, has been forced to admit that the outcome achieved by a series of rulings favouring the prosecution may not stand up to scrutiny on appeal.
When Rosenthal heard banging on his front door in the early morning of 12 February last year, he thought his neighbour was in trouble. "Instead," he said, "I was greeted by the armed forces of the US, guns at the ready.
They were expecting to find gold and big bank accounts.
Instead, they found a middle-class family." ( Rosenthal, who is 59, has a wife and two teenage children. ) They handcuffed him and produced a search warrant based on apparently false assertions, including the suggestion that federal agents had been tipped off to the presence of marijuana by the smell.
Starter plants, Rosenthal insisted in court documents that the judge refused to admit as evidence, have no smell; it is the flower buds that have the smell.
On top of denying him any opportunity to mount a defence, Judge Breyer also told the jury that they had no discretion in deciding whether Rosenthal was guilty. If he had grown the plants - and he clearly had - then they were obliged to convict him, even in the knowledge that his crimes carried a minimum sentence of 40 years behind bars. The five rebel jurors now believe that they were misled on that point, too. Jury nullification - the power to acquit a defendant if the government's position seems unjust - is enshrined in the Sixth Amendment, which characterises the jury as "the conscience of the community".
What Rosenthal's case shows is how the government's War on Drugs - rather like the analogous war on terrorism - can be used as an excuse to ride roughshod over every conceivable provision of the criminal-justice system, even the right of defendants to give their side of the story in court.
As such, it stands as a cautionary tale to any country tempted, like the US, to take the hardline law-enforcement route on a soft drug. As Rosenthal writes in his latest book: "No law should be more harmful than the behaviour it seeks to regulate."
There are signs that the Bush administration has seriously overreached. Several Californian cities have passed resolutions urging police not to co-operate with DEA and FBI raids on medical marijuana facilities. It may all end up in the Supreme Court in Washington. Until then, Ed Rosenthal and his band of supporters will fight on. "These laws are going to come down," he vows, "and this case will be a part of it."
