Medical Pot Activist Walks Free
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Set free by a San Francisco federal judge who sentenced him to just one day in prison, medical cannabis grower Ed Rosenthal said today that his case will be the catalyst to overturn all U.S. marijuana laws under which 750,000 Americans are arrested each year.
"These laws are doomed," said Rosenthal to group of cheering supporters outside the courthouse after his sentencing. "I am going to make it safe for everyone to grow by bringing these laws down."
Rosenthal was convicted in January of three marijuana cultivation and conspiracy charges. He faced more than 80 years in federal prison and $2.5 million in fines. The Federal Probation Department had recommended that Rosenthal be sentenced to two 21-month sentences to be served concurrently.
Since Rosenthal was prosecuted under federal law, U.S. District Judge Charles Breyer prevented him from using California's Prop. 215 as a defense in his case. Prop. 215, which is not recognized by the federal government, allows critically ill patients to grow, posses and consume cannabis with a doctor's recommendation. "He did me no favors," said Rosenthal of Judge Breyer. "He made me a felon because he would not allow the jury to hear the whole story."
When the jurors who convicted Rosenthal later discovered that he had been growing starter plants for patients, they renounced their guilty verdict and announced that they had been misled. Eight of the jurors in the case wrote a letter to Judge Breyer asking him to allow Rosenthal to remain free. Several have since campaigned for the Truth In Trials bill (HR1717) that would allow for an affirmative defense in medical cannabis cases.
"Our fight is not over," juror Eve Tulley-Dobkin said after Rosenthal's sentencing. "We have to change the law so that people in Ed Rosenthal's circumstances do not have to go through what he did, so that jurors get the full evidence in the trial, so that people who are in prison get out."
California Attorney General Bill Lockyer also wrote to Judge Breyer requesting that he impose the minimum sentence allowed under the federal sentencing guidelines and take Prop. 215 into account. When sentencing Rosenthal to one day with credit for time served, Judge Breyer acknowledged that due to "extraordinary circumstances" Rosenthal had reason to believe that he was following state and local laws.
Rosenthal asserted during his trial that he had been promised immunity from prosecution by the city of Oakland, Calif., which passed a medical marijuana ordinance based on an exemption in federal statute. "I find that Rosenthal's belief, while erroneous, was reasonable in that Oakland had enacted the ordinance," said Judge Breyer who noted that Rosenthal made no attempt to conceal his crop from fire inspectors and city officials. But Judge Breyer asserted in court that a case like Rosenthal's "should not, and could not happen again" because his rulings assert that municipalities cannot authorize the cultivation of marijuana.
"This judge is dead wrong," said Rosenthal, who predicts that the portion of the federal law which allows this provision will be upheld by the appellate court.
Rosenthal's attorney, Dennis Riordan, said the judge's acknowledgment that Rosenthal believed he was acting lawfully will help Rosenthal appeal his conviction to the 9th Circuit U.S. Court of Appeals. Judge Breyer forbid jurors to hear arguments that he was entrapped because he relied on the advice of public officials.
"Judge Breyer gave us a very, very powerful weapon in the fight to convince the 9th Circuit that it was wrong to prevent the jury from passing its own judgment on the reasonability of Ed's belief," says Riordan. "The federal government view is that the people involved in this act acted in bad faith and are really drug dealers at heart. And the judge certainly said today that the people who are involved in this movement have acted in good faith and believe in the legality of what they are doing."
Riordan noted that Rosenthal's sentencing does not directly impact the current laws on marijuana. But if the appeals court rules that cities can offer immunity under federal statutes, he said it could have an "enormous effect" on the ability of growers and caregivers to provide medical cannabis. Riordan added that Rosenthal's legal team would also argue the appeal based on Commerce Clause and 9th and 10th Amendment issues.
Assistant U.S. Attorney George Bevan had asked the judge to sentence Rosenthal to six and a half years in federal prison, and had no comment on the final sentence. Bevan said during the hearing that Rosenthal was a businessman who began growing before Oakland passed its medical marijuana ordinance in 1998. "This operation was a cash cow and he was putting out thousands and thousands of plants," said Bevan. "He used the city council as an effort to put an umbrella around his illegal cultivation."
Riordan argued that Rosenthal's case was no typical drug conviction. He pointed out that the millions of Californians who voted for Prop. 215 knew that they were participating in a drug law reform movement. "Prop. 215 is a national battle" said Riordan. "This is a law reform case and we all know that this is a law reform case...the test has been made."
But Bevan noted that Prop. 215 does not make provisions for the large scale cultivation of medical cannabis and only permits small grows by patients. "There is nothing in Prop. 215 that gives a free pass to this level of cultivation," said Bevan, who said any Oakland city official who permitted Rosenthal to grow "could be considered a conspirator." "Prop. 215 did not account for the supply of marijuana, this is a glaring omission," said Bevan. "Is it logical to say, `You can have it, if you can get it'?" asked Judge Breyer.
Rosenthal said after his sentencing that Bevan lied to the Grand Jury to secure his indictment. He added that the judge did him no favors by handing down a one-day sentence. Rosenthal charged that Judge Breyer manipulated the evidence at his trial and called for the judge's resignation.
"This is day one in the crusade to bring down the marijuana laws, all the marijuana laws," said Rosenthal, who noted that there are currently 100,000 people in prison for marijuana crimes. "I don't think one day is justice -- no one should serve any time."
Rosenthal, author of several books on marijuana cultivation, will remain on supervised release for three years and pay a $1,000 fine plus $300 in court costs. He told the court that he took responsibility for cultivating marijuana under the Oakland ordinance. "My conscience led me to help people who were suffering," he said.
In the meantime, his wife Jane Klein says marijuana activists should pressure lawmakers to change marijuana laws. "This case has shown that it is worth speaking up, that silence is no longer an acceptable answer for our political leaders" said Klein. "Congress, are you listening?"
Ann Harrison is a freelance reporter working in the Bay Area.