The Trial of Ed Rosenthal

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 100 marijuana plants at a San Francisco medical marijuana club, conspiracy to grow more than 1,000 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 78 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; however, a few days later the court rejected the writ.

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 is a San Francisco based science journalist.

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