CLASH ON MEDICAL MARIJUANA PUTS A GROWER IN U.S. COURT

OAKLAND, Calif., Jan. 20 - As a marijuana celebrity, Ed
Rosenthal has been on a career roll. The author of a dozen
cannabis self-help books and a magazine advice column, "Ask
Ed," Mr. Rosenthal is the pothead's answer to Ann Landers,
Judge Judy, Martha Stewart and the Burpee Garden Wizard all
in one.

Can't get rid of the powdery mildew on your cannabis
seedling? Try a 20 percent skim-milk solution. The feds got
you in court on charges of cultivation? Challenge their
crop yield estimates. Want a high without the harmful tar?
Use a pipe that vaporizes it.

Mr. Rosenthal's renown has taken him to the Senate, where
he testified about marijuana sentencing laws, and to a
dozen foreign countries, where he worked as a consultant to
hemp and marijuana growers. Throughout it all, he has
carried on with impunity.

Until now.

On Tuesday, Mr. Rosenthal goes on trial in federal court in
San Francisco on charges of marijuana cultivation and
conspiracy. The charges stem from a business he ran growing
marijuana to be sold for medicinal uses under the auspices
of the City of Oakland's medical marijuana ordinance, one
of many such municipal statutes in California.

If convicted on all counts, Mr. Rosenthal, who is 58, faces
a minimum sentence of 10 years in prison; the conspiracy
charge carries a possible life sentence.

The trial has riled his many fans in the marijuana
community, but its implications are far broader. At its
core, Mr. Rosenthal's prosecution exposes a deepening rift
between the State of California and the Bush administration
over the use of marijuana for medicinal purposes, with no
middle ground for compromise in sight.

On one side, federal law enforcement officials view Mr.
Rosenthal's arrest and possible conviction as a trophy in
the stepped-up war on drugs.

"There shouldn't be any doubt about our determination to
enforce the laws of the United States," said Special Agent
Richard Meyer, a spokesman for the federal Drug Enforcement
Administration in San Francisco. "Marijuana is illegal
regardless of the intended use, regardless of the person
cultivating it and regardless of where it originated."

On the other side, some state and local officials regard
Mr. Rosenthal's prosecution as an effort by the federal
government to subvert the 1996 statewide voters'
initiative, known as Proposition 215, that made marijuana
legal for medicinal purposes. Since that initiative passed
in California, eight other states have approved similar
laws.

"I am just speechless," said Nathan A. Miley, an Alameda
County supervisor who helped write the ordinance in Oakland
when he was a councilman. "What we were attempting to do
through the city was put together as tight a medical
practice as possible. Ed was just part of that whole
effort."

A handful of court cases have failed to defuse the
federal-state tensions. In the most significant ruling, the
United States Supreme Court decided in 2001 that under
federal law "medical necessity is not a defense to
manufacturing and distributing marijuana."

But the ruling did not address Proposition 215 and whether
it violated federal law. Moreover, it involved an
organization, not an individual, and it arose from civil
litigation, not a criminal case. And rulings by other
courts since then have offered some protections.

Last July, the California Supreme Court ruled that
Proposition 215 granted medical users of marijuana "limited
immunity from prosecution" under state law. In October, a
federal appeals court in San Francisco decided that the
federal government may not revoke the licenses of doctors
who recommend marijuana to their patients.

"This is a huge conflict," said Hallye Jordan, a
spokeswoman for Attorney General Bill Lockyer, California's
top prosecutor and a supporter of the state statute. "State
law legalizes medical marijuana and federal law makes
marijuana illegal. Period."

In a letter to Asa Hutchinson, the administrator of the
federal drug agency, Mr. Lockyer characterized a flurry of
federal raids on medicinal marijuana providers last fall as
"wasteful, unwise and surprisingly insensitive." In
pointing a finger directly at the Bush administration, Mr.
Lockyer's office reported that federal efforts against
"authorized California cooperatives" began only in 2001.

"While I am acutely aware that federal law conflicts with
California's on this subject and needs to be reconciled,
surely an administration with a proper sense of balance,
proportion and respect for states' rights could and should
reconsider the D.E.A.'s policy and redirect its resources,"
Mr. Lockyer wrote.

In a reply, Mr. Hutchinson rejected the notion of medicinal
marijuana as unsound, legally and scientifically. He also
mocked the suggestion that a voters' initiative might
change that. The Food and Drug Administration, he wrote,
"has never in the past approved medicine by popular
referendum, and I believe it would be ill advised to set
the precedent now."

Robert V. Eye, a criminal lawyer from Topeka, Kan., who is
representing Mr. Rosenthal, said his client was caught in
the legal crosswinds of difficult social change.

"Ed is a friction point between these competing interests,"
Mr. Eye said. "It is remarkable to see this social change
on the ground."

Mr. Rosenthal says it was never his intention to be drawn
into the legal tug of war. He and his wife, Jane Klein, run
a publishing business out of their hillside home here, a
picture-book Victorian with a lush garden and terraced
backyard. When Mr. Rosenthal was arrested last February for
growing marijuana plants in a warehouse in an industrial
area near the Port of Oakland, he was engaged in what was
more of a hobby than a business, he said.

"I already have my business," he said. "To me, this was a
chance to do work in the field. My profit out of it is the
books. I could write about what I learned."

Oakland is among the cities and counties in California that
have enacted ordinances to permit marijuana for medicinal
purposes under Proposition 215. The law allows seriously
ill people, who have a doctor's recommendation, to
cultivate and use marijuana as a form of treatment.

Officials in Oakland, where drug abuse and streets sales of
narcotics are a serious problem, concluded that it would be
better to offer marijuana to sick people in a regulated
environment than to have them purchase it on the street.
Even before the state initiative, the City Council
instructed the police not to pursue crimes "regarding the
distribution of marijuana for compassionate medical use."

Beginning in the early 1990's, Mr. Rosenthal devoted much
of his research and writing to exploring the medicinal
benefits of marijuana. His most recent book looks at the
multiple varieties of marijuana, with the long-term
objective, he said, of better determining which ones might
be most effective in alleviating the symptoms of diseases
like cancer, AIDS, multiple sclerosis and depression.

"I started experimenting with marijuana in the 1960's," Mr.
Rosenthal said. "When the 60's ended, I continued into the
70's. Now it is sort of like a Framingham study: I am
working on a life study."

Mr. Rosenthal's interests and Oakland's needs matched. By
1998, he was deemed "an officer of the city" under the
city's ordinance and was growing thousands of marijuana
starter plants at the West Oakland growing facility. At the
time of his arrest, federal agents seized 3,163 plants.

Mr. Rosenthal had sold starter plants to a variety of
cooperatives and medical marijuana clubs in Oakland and the
Bay Area that dispense marijuana as medicine. Among his
customers was the Harm Reduction Center in San Francisco,
where federal agents seized 714 marijuana plants the same
day Mr. Rosenthal was arrested. According to the indictment
against Mr. Rosenthal, an undercover federal agent and a
"confidential source" bought 405 marijuana plants at the
Harm Center in January 2002 for $3,600.

Barbara J. Parker, Oakland's chief assistant city attorney,
said the city ordinance was written expressly to give
immunity under the federal Controlled Substance Act to
people carrying out the ordinance's provisions. Ms. Parker
said the immunity was the same kind afforded to police
officers and other public officials who enforce laws
related to controlled substances.

"The federal government didn't come after the city and say
this ordinance can't stand," Ms. Parker said. "They didn't
come after the state and say this proposition can't stand.
Instead, they are going after individuals. That makes this
very difficult."

Mr. Rosenthal said he had never been told that he was doing
anything wrong or even given a hint that the city's
ordinance might be "pushing the limits of the law." By
prosecuting him, Mr. Rosenthal said, the Justice Department
had put the judge, Charles R. Breyer of United States
District Court, in the untenable situation of the commander
of the ship in Melville's "Billy Budd."

"He knows Billy Budd shouldn't be punished, but he is just
following the law," Mr. Rosenthal said. "Ultimately,
because of the law, Billy Budd winds up hanged."

It seems George L. Bevan Jr., the assistant United States
attorney prosecuting the case, anticipated such an
argument. In a recent motion to exclude medicinal marijuana
as a possible defense for Mr. Rosenthal, Mr. Bevan
declared: "Ignorance of the law or a mistake of law is
generally no defense to a criminal prosecution."



Pubdate: January 21, 2003
By DEAN E. MURPHY
http://www.nytimes.com/2003/01/21/national/21POT.html?ex=1044135736&ei=1&en=f159
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