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The420Guy
Guest
RosenthalA federal judge in San Francisco is blocking a jury from
hearing evidence that could exculpate an outspoken medical marijuana
activist. Ed Rosenthal, who is facing 20 years in prison on federal drug
charges, believed himself to be immune from prosecution when he was
deputized by the nearby city of Oakland in 1998 to cultivate cannabis
for chronically ill patients.
Rosenthal's case is a challenge by federal prosecutors to California's
Compassionate Use Act (Prop. 215), a 1996 voter referendum that made the
cultivation, possession and consumption of medical marijuana legal in
California with a doctor's recommendation. Since the act did not provide
for the distribution of medical cannabis, several California cities,
including Oakland, have passed ordinances that authorize growers and
distributors to meet this need.
Rosenthal, who has written or edited more than a dozen books on
marijuana cultivation and social policy, seemed like a good choice as
cultivator of Oakland's Medical Marijuana Program. But last February, he
became one of the first people indicted by the U.S. Justice Department
for providing marijuana to patients in the San Francisco Bay Area.
Rosenthal, 58, is now facing charges of cultivating more than 1,000
marijuana plants at a San Francisco medical marijuana club, conspiracy
to grow marijuana, and maintaining a place to grow marijuana at an
Oakland warehouse. The warehouse reportedly contained several thousand
tiny starter plants that Rosenthal says were intended for distribution
to medical marijuana patients who want to grow their own cannabis.
George Bevan Jr., the government's lead prosecutor, had no comment on
the proceedings. But Rosenthal says the outcome of his case will
determine the government's future approach to medical marijuana,
considered by activists to be a sharp wedge in the larger fight against
the U.S. government's war on drugs.
''If they win this battle, then I think that the dispensaries in the
nine states that have legal medical marijuana are going to be in for a
tough time from the federal government,'' says Rosenthal. ''If we win
this, it's like taking several bricks out of the bottom of a wall, it
weakens the wall so much that it will eventually implode.''
Prop. 215 passed with 68 percent in San Francisco. Many area residents
are aware of the ongoing conflict between Prop. 215 and the federal
Controlled Substances Act. Richard Meyer, spokesman for the DEA San
Francisco field division, notes that under the Controlled Substances
Act, marijuana is classified as a Schedule One substance with no
medicinal value and a high potential for abuse. Federal agencies have
blocked nearly all attempts to conduct scientific studies on medical
marijuana.
When U.S. District Judge Charles Breyer asked prospective jurors in
Rosenthal's case if they could set aside their potential support for
Prop. 215 and enforce possible criminal drug penalties under the
Controlled Substances Act, many rebelled. Over half the 77 prospective
jurors refused to acknowledge the supremacy of federal law and were
excused from the case.
''I feel it is very frustrating when voters in the state of California
make a statement on medical marijuana and the government prosecutes,"
said a juror from Napa, Calif. who was later disqualified. ''I think it
should not be a political fight but we should go into the science and
figure it out.''
The judge's questions regarding Prop. 215 alerted potential jurors that
medical cannabis is an issue in the case. But it's uncertain how much
specific information about medical cannabis the judge will permit
jurors, or whether jurors will nullify by entering a verdict contrary to
the instruction of the court. Jurors who convicted another medical
marijuana grower two months ago were outraged when they later learned
that their vote had sent him to prison for 10 years.
''It is not the court that placed marijuana in Schedule One; the court
is simply following the law,'' said Judge Breyer.
*A Bitter Legal Struggle*
During two weeks of hearings prior to jury selection, Rosenthal's
lawyers engaged in a bitter legal struggle with Judge Breyer, who sought
to block Rosenthal from using Prop. 215 as a defense against federal
charges. Breyer denied defense motions to dismiss the charges based on
selective prosecution, lack of jurisdiction, official immunity, and 9th
and 10th Amendment arguments.
The defense also argued that the charges should be dismissed on due
process grounds because the government's prosecution is a form of
entrapment by estoppel. This argument applies when a government agent
tells the defendant that certain conduct is legal and the defendant
believes the official.
''I was following 215 in good faith,'' argues Rosenthal. ''I had been
made an officer of the city and been immunized, and the whole question
is whether in spite of all this, the federal government can come in and
arbitrarily choose one person to persecute.''
Rosenthal's attorneys presented evidence that the DEA gave assurances to
local medical marijuana activists that they would respect California's
medical marijuana laws. Several Oakland city officials, including the
city attorney and the former head of the Oakland Police Department's
Narcotics Division, also testified in pre-trial hearings that they were
never told told by the DEA that they were violating federal law and
could be subject to federal prosecution.
The City of Oakland sought to protect medical marijuana providers using
a provision in the Controlled Substances Act which allows local
municipalities to deputize agents of the city and immunize them from
civil and criminal liability. This legal exception, known as 885(d),
protects law enforcement agents who possess, buy or sell drugs in the
course of their duties.
Judge Breyer rejected the estoppel argument asserting that DEA
assurances not to prosecute were hearsay. He also ruled that Oakland
city officials were not authorized to relay such assurances and that
lack of swift enforcement action by federal law enforcement did not
imply consent. On Jan. 16, Rosenthal's defense team took the unusual
step of going over the judge's head by filing a writ with the 9th
Circuit Court of Appeals asking them to rule on the entrapment by
estoppel defense.
''If this writ were granted, we should ask the judge to pick a new jury
because he informed this present jury panel that there was no way to
harmonize state law and federal law,'' said Bill Simpich, one of
Rosenthal's attorneys. ''We believe that the City of Oakland harmonized
state law with federal law by immunizing Ed.''
Rosenthal's trial is now set to begin on Tuesday, Jan. 21. It is still
unclear whether he will take the stand in his own defense, or what the
judge will permit him to say. If Rosenthal cannot testify about his
state of mind at the time of the alleged crime, he cannot convince the
jury that that he had no intent to break the law - which is normally
required for conviction.
Judge Breyer is eager to try the Rosenthal case swiftly with little
fanfare, but activists are registering their outrage over what they
considered a muzzled trial. Outside the San Francisco federal building
on the day that prospective jurors were assembling, five demonstrators
stood mute with their mouths gagged. They held signs showing a marijuana
leaf which read, ''This is my medicine.''
People excused from the jury said they were aware of the demonstrators.
The question now is how much the remaining jurors know about Rosenthal's
medical marijuana crop.
/Ann Harrison <mailto:ah@well.com> is a San Francisco based science
journalist./
Pubdate: Fri, 17 Jan 2003
Alternet.org
*By Ann Harrison, AlterNet <Home> *
hearing evidence that could exculpate an outspoken medical marijuana
activist. Ed Rosenthal, who is facing 20 years in prison on federal drug
charges, believed himself to be immune from prosecution when he was
deputized by the nearby city of Oakland in 1998 to cultivate cannabis
for chronically ill patients.
Rosenthal's case is a challenge by federal prosecutors to California's
Compassionate Use Act (Prop. 215), a 1996 voter referendum that made the
cultivation, possession and consumption of medical marijuana legal in
California with a doctor's recommendation. Since the act did not provide
for the distribution of medical cannabis, several California cities,
including Oakland, have passed ordinances that authorize growers and
distributors to meet this need.
Rosenthal, who has written or edited more than a dozen books on
marijuana cultivation and social policy, seemed like a good choice as
cultivator of Oakland's Medical Marijuana Program. But last February, he
became one of the first people indicted by the U.S. Justice Department
for providing marijuana to patients in the San Francisco Bay Area.
Rosenthal, 58, is now facing charges of cultivating more than 1,000
marijuana plants at a San Francisco medical marijuana club, conspiracy
to grow marijuana, and maintaining a place to grow marijuana at an
Oakland warehouse. The warehouse reportedly contained several thousand
tiny starter plants that Rosenthal says were intended for distribution
to medical marijuana patients who want to grow their own cannabis.
George Bevan Jr., the government's lead prosecutor, had no comment on
the proceedings. But Rosenthal says the outcome of his case will
determine the government's future approach to medical marijuana,
considered by activists to be a sharp wedge in the larger fight against
the U.S. government's war on drugs.
''If they win this battle, then I think that the dispensaries in the
nine states that have legal medical marijuana are going to be in for a
tough time from the federal government,'' says Rosenthal. ''If we win
this, it's like taking several bricks out of the bottom of a wall, it
weakens the wall so much that it will eventually implode.''
Prop. 215 passed with 68 percent in San Francisco. Many area residents
are aware of the ongoing conflict between Prop. 215 and the federal
Controlled Substances Act. Richard Meyer, spokesman for the DEA San
Francisco field division, notes that under the Controlled Substances
Act, marijuana is classified as a Schedule One substance with no
medicinal value and a high potential for abuse. Federal agencies have
blocked nearly all attempts to conduct scientific studies on medical
marijuana.
When U.S. District Judge Charles Breyer asked prospective jurors in
Rosenthal's case if they could set aside their potential support for
Prop. 215 and enforce possible criminal drug penalties under the
Controlled Substances Act, many rebelled. Over half the 77 prospective
jurors refused to acknowledge the supremacy of federal law and were
excused from the case.
''I feel it is very frustrating when voters in the state of California
make a statement on medical marijuana and the government prosecutes,"
said a juror from Napa, Calif. who was later disqualified. ''I think it
should not be a political fight but we should go into the science and
figure it out.''
The judge's questions regarding Prop. 215 alerted potential jurors that
medical cannabis is an issue in the case. But it's uncertain how much
specific information about medical cannabis the judge will permit
jurors, or whether jurors will nullify by entering a verdict contrary to
the instruction of the court. Jurors who convicted another medical
marijuana grower two months ago were outraged when they later learned
that their vote had sent him to prison for 10 years.
''It is not the court that placed marijuana in Schedule One; the court
is simply following the law,'' said Judge Breyer.
*A Bitter Legal Struggle*
During two weeks of hearings prior to jury selection, Rosenthal's
lawyers engaged in a bitter legal struggle with Judge Breyer, who sought
to block Rosenthal from using Prop. 215 as a defense against federal
charges. Breyer denied defense motions to dismiss the charges based on
selective prosecution, lack of jurisdiction, official immunity, and 9th
and 10th Amendment arguments.
The defense also argued that the charges should be dismissed on due
process grounds because the government's prosecution is a form of
entrapment by estoppel. This argument applies when a government agent
tells the defendant that certain conduct is legal and the defendant
believes the official.
''I was following 215 in good faith,'' argues Rosenthal. ''I had been
made an officer of the city and been immunized, and the whole question
is whether in spite of all this, the federal government can come in and
arbitrarily choose one person to persecute.''
Rosenthal's attorneys presented evidence that the DEA gave assurances to
local medical marijuana activists that they would respect California's
medical marijuana laws. Several Oakland city officials, including the
city attorney and the former head of the Oakland Police Department's
Narcotics Division, also testified in pre-trial hearings that they were
never told told by the DEA that they were violating federal law and
could be subject to federal prosecution.
The City of Oakland sought to protect medical marijuana providers using
a provision in the Controlled Substances Act which allows local
municipalities to deputize agents of the city and immunize them from
civil and criminal liability. This legal exception, known as 885(d),
protects law enforcement agents who possess, buy or sell drugs in the
course of their duties.
Judge Breyer rejected the estoppel argument asserting that DEA
assurances not to prosecute were hearsay. He also ruled that Oakland
city officials were not authorized to relay such assurances and that
lack of swift enforcement action by federal law enforcement did not
imply consent. On Jan. 16, Rosenthal's defense team took the unusual
step of going over the judge's head by filing a writ with the 9th
Circuit Court of Appeals asking them to rule on the entrapment by
estoppel defense.
''If this writ were granted, we should ask the judge to pick a new jury
because he informed this present jury panel that there was no way to
harmonize state law and federal law,'' said Bill Simpich, one of
Rosenthal's attorneys. ''We believe that the City of Oakland harmonized
state law with federal law by immunizing Ed.''
Rosenthal's trial is now set to begin on Tuesday, Jan. 21. It is still
unclear whether he will take the stand in his own defense, or what the
judge will permit him to say. If Rosenthal cannot testify about his
state of mind at the time of the alleged crime, he cannot convince the
jury that that he had no intent to break the law - which is normally
required for conviction.
Judge Breyer is eager to try the Rosenthal case swiftly with little
fanfare, but activists are registering their outrage over what they
considered a muzzled trial. Outside the San Francisco federal building
on the day that prospective jurors were assembling, five demonstrators
stood mute with their mouths gagged. They held signs showing a marijuana
leaf which read, ''This is my medicine.''
People excused from the jury said they were aware of the demonstrators.
The question now is how much the remaining jurors know about Rosenthal's
medical marijuana crop.
/Ann Harrison <mailto:ah@well.com> is a San Francisco based science
journalist./
Pubdate: Fri, 17 Jan 2003
Alternet.org
*By Ann Harrison, AlterNet <Home> *
