MARIJUANA AUTHOR, OTHERS BATTLE FOR MARIJUANA RIGHTS

SAN FRANCISCO - The federal marijuana cultivation trial of former High
Times columnist Ed Rosenthal began Tuesday like so many drug cases.

Prosecutor George Bevan told jurors that agents seized some 3,000 plants
growing in Rosenthal's warehouse in Oakland. "It's a federal offense,"
Bevan said.

But this is no routine drug prosecution for a man whose column and books
preach the gospel on tips for growing marijuana and evading the law.
Rosenthal says he was growing medical marijuana, "to help the sick," which
is legal under California law and in seven other states.

Alaska, Arizona, California, Colorado, Hawaii, Maine, Oregon and Washington
allow the infirm to receive, possess, grow or smoke marijuana for medical
purposes without fear of state prosecution.

Rosenthal's case and others are an outgrowth of the government's drug war,
two years after the U.S. Supreme Court said it was a violation of federal
drug laws for medical marijuana clubs to dispense pot to the sick.

Armed with the Supreme Court's ruling, the government has raided several
medical marijuana clubs and growing operations throughout California over
the objection of marijuana advocates, local prosecutors and officials.

But Rosenthal and other medical marijuana advocates have taken the
offensive with fresh legal attacks of their own, opening a Pandora's box of
legal questions. And these challenges, which are failing in the lower
federal courts, will soon reach the Supreme Court, which may not have
written the final word on the topic.

In May 2001, the high court said that the pot clubs could not dole out
marijuana based on a so-called "medical necessity" need of the patients.

Justice Clarence Thomas wrote that an Oakland pot club could not defend its
actions against federal drug laws by declaring it was dispensing marijuana
to the medically needy.

But the justices said they addressed only the issue of a so-called "medical
necessity defense" being at odds with a 1970 federal law that marijuana,
like ****** and ***, has no medical benefits and cannot be dispensed or
prescribed by doctors.

Thomas wrote that important and unresolved constitutional questions
remained, such as Congress' ability to interfere with intrastate commerce,
the right of states to experiment with their own laws and whether Americans
have a fundamental right to marijuana as an avenue to be free of pain.
Justice Thomas wrote that the court would not decide those "underlying
constitutional issues today."

Rosenthal, 58, who faces a maximum life term if convicted, said he and his
attorneys made all those arguments in a bid to have the case dismissed.

"But the judge won't let them in," Rosenthal said, adding that he would
appeal his case if convicted.

U.S. District Judge Charles Breyer also ruled that jurors cannot be told
why Rosenthal was growing marijuana.

"You can certainly raise that on appeal," Breyer said in an angry exchange
with Rosenthal's lawyers during a break Tuesday.

In another case invoking Justice Thomas' comments, Angel Raich has sued the
federal government to allow her to smoke marijuana without the fear of
prosecution and to allow others to grow it for her.

The 37-year-old Oakland woman has a variety of ailments, including
scoliosis, a brain tumor, chronic nausea, fatigue and pain. She said she
was partially paralyzed on the right side of her body until she started
smoking marijuana.

"I began to get this tingling sensation," Raich said. "It was electric."

Her doctor, Frank Lucido of Berkeley, said he and other doctors have tried
about three dozen drugs to alleviate Raich's pain. None worked, and they
each provoked violent nausea.

"It would be medical malpractice to keep trying new drugs," Lucido said.

Raich's husband and attorney, Robert Raich, is the same Oakland lawyer who
lost the original medical marijuana case before the Supreme Court nearly
two years ago. He has taken up his wife's case and renewed the battle for
the Oakland pot club he originally represented before the Supreme Court.

"We are taking Justice Thomas' comments to heart," he said. "We are laying
the framework to get to the Supreme Court again."


Pubdate: Tue, 21 Jan 2003
Source: Contra Costa Times (CA)
Copyright: 2003 Knight Ridder
Contact: http://www.bayarea.com/mld/bayarea/contact_us/feedback_np2
Website: http://www.bayarea.com/mld/cctimes
Author: David Kravets, Associated Press