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Rosenthal's Federal Drug Trial Turns Surreal

The legal tactics being used in the Ed Rosenthal trial offer a blueprint of the government's anti-medical marijuana strategy.
 
 
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They viewed the glossy color photographs of meticulously tended marijuana mother plants flourishing under timed lights inside an Oakland, Calif. warehouse. Then they watched a videotape showing DEA agents uprooting nearby marijuana cuttings to determine which had roots, and could thus be considered "plants" under the federal sentencing guidelines.

It was all in a day's work for jurors in the ongoing, and often surreal, federal drug trial of former High Times advice columnist ''Ask Ed'' Rosenthal, who is facing 20 years in prison for cultivating medical cannabis.

Federal prosecutors have built their case against Rosenthal by barring pre-trial testimony of Oakland city officials who said Rosenthal grew the plants for the city's medical marijuana program. But the government has subpoenaed testimony from an array of people who simply saw the plants, including a fellow grower, the proprietor of a medical cannabis club, Rosenthal's landlord, an electrician and even a fireman. These legal tactics offer a blueprint of the government's strategy to halt the distribution of medical marijuana in California -- and perhaps in the other seven states that have voted for it.

''This is the federal government at war with its own citizens and I like to think that years from now we will look back on this as a dark chapter in our nation's history,'' said California State Assemblymember Mark Leno. ''The thought of a man like Ed Rosenthal being threatened with twenty years of imprisonment is an outrage. The man is not a criminal.''

Federal prosecutors contend that marijuana is illegal and do not recognize California's 1996 Compassionate Use Act (Prop. 215) which permits patients to possess, grow and consume cannabis with a doctor's recommendation. Rosenthal, who has authored a half dozen how-to books on marijuana growing, has been charged with maintaining a place to grow marijuana at the Oakland warehouse and cultivating more than 100 marijuana plants at the site.

He has also been charged with conspiring to grow more than 1,000 plants with Ken Hayes and Rick Watts at the Harm Reduction Center, a San Francisco medical marijuana club. Prosecutors say Hayes fled to Seattle where he chartered a small plane and flew to a remote Canadian airfield with $13,000 hidden in his pants. Watts crashed his car after learning that he too was facing 20 years in prison and his attorney says his injuries prevent him from appearing in court.

Rosenthal's trial has become a cause celeb in Northern California where activists have launched a billboard campaign to condemn the imprisonment of medical cannabis growers. The billboards read: ''Compassion, Not Federal Prison.''

Federal prosecutors made an unsuccessful appeal to the judge to keep Rosenthal and his attorneys from speaking to the press after the San Francisco Examiner published a front page photo of Rosenthal and his daughter with the headline, "My Dad's A Hero.''

The government kicked off its case against Rosenthal by subpoenaing James Halloran, his former marijuana cultivation and racquetball partner, who was arrested in the same DEA sweep last February. Halloran testified that shortly after the passage of Prop. 215, he signed a lease on the 800-square-foot warehouse and brought in lights, fans and growing trays to raise a crop of cloned cannabis plants with Rosenthal. Halloran dissolved the partnership in 1998 and purchased plants from Rosenthal for his own 4,000 plant medical marijuana growing operation.

Halloran, who was facing three life terms for these activities, agreed to cooperate with the government for a reduced sentence of 56 months.

Rosenthal's former landlord, Leslie Wilmer, also testified that he saw Rosenthal's cannabis crop, as did German Sierra, a firefighter with the Oakland Fire Department. Sierra, who conducted a fire safety inspection at the warehouse, noted that Rosenthal had an Oakland business license. Both men were prevented from explaining why it did not occur to them to report the crop to police.

''I've ruled that the purpose for which the marijuana was grown is not a defense and is irrelevant,'' said Judge Charles Breyer.

Judge Breyer also rejected the defense's argument that the government entrapped Rosenthal and blocked the testimony of a DEA agent who told local activists that he would respect California's medical cannabis laws. DEA agent Dan Tuey was permitted to take the stand to painstakingly document over 3,000 plants and cuttings seized from the warehouse, a process that appeared to exhaust jurors. Defense attorneys doggedly challenged the plant counts, but were admonished by the judge for commenting on the government's evidece.

Divide And Conquer

The DEA contends that Rosenthal is using Prop. 215 as a smokescreen for drug profiteering, and prosecutors trying the case have attempted to turn growers and club operators against each other.

When Hayes fled to Canada, his medical marijuana club underwent the same upheaval that many businesses endure when a founder suddenly leaves. But prosecutors moved to take advantage of the turmoil. ''The feds are using us as an example to scare all these other dispensers of medical cannabis into submission,'' said Ken Hayes, who is seeking political asylum in Canada. ''I didn't want to be used as a federal government trophy.''

Former club employee Robert Martin, who was forced to testify under a grant of immunity, alleged that Hayes drew down the club's accounts to pay for his exile. Bills went unpaid and the power was shut off. Martin, who now runs another medical marijuana club, began covering expenses out of his own pocket, but testified that he wrote Rosenthal bad checks for his plants because he believed Rosenthal was attempting to take over the operation. The prosecution then produced an unsigned letter to Rosenthal, seized from Watts' computer. The letter suggests that Rosenthal was selling bug-infested plants as an act of ''willfull sabotage'' to infect other growers and corner the medical marijuana market, a charge Rosenthal denies.

Both Rosenthal and Watts discount the government's claim that there was a power struggle at the club.

Rosenthal says he was simply concerned that the club, ''continue to take care of patients and supply them with marijuana.'' Watts says the Harm Reduction Center was being run by a board of directors that San Francisco District Attorney Terence Hallinan had encouraged to avoid management disputes.

''I never intended to run the club,'' said Watts, who said he was in charge of building maintenance and overseeing the club's counseling program.

Jane Weirick, a long-time medical marijuana activist and consultant to Bay Area medical cannabis dispensaries, said the Harm Reduction Center simply suffered from a lack of leadership. ''There was no one really qualified to run the place and we were concerned that the people who had legal control of it were becoming an embarrassment to the city,'' said Weirick. ''It was a very big ship with no rudder in an ocean full of icebergs.''

Leno, a former San Francisco city supervisor, believes that that the city should consider growing and distributing its own medical cannabis. Leno authored a successful ballot measure last November which directed the city to study the project. Some patients are frustrated that the measure did not compel the city to act, but Leno says a select committee of city supervisors is pursuing the issue.

''The question is how to give patients access to their medicine if the federal government is going to continue their assault on those growers who, at great risk, attempt to provide patients with their physician recommended medicine," said Leno.

Ann Harrison is a San Francisco-based journalist.