Angry Rosenthal Pot Jurors Call For New Trial
In an extraordinary condemnation of federal drug war tactics, five jurors who convicted medical cannabis grower Ed Rosenthal of federal marijuana cultivation and conspiracy charges, held a press conference yesterday (Tuesday, Feb. 4) to apologize and to call for a new trial.
The jurors said they were outraged to discover that Rosenthal had been deputized by the city of Oakland, Calif. to grow medical cannabis for patients under California's Compassionate Use Act (Prop. 215). The judge denied all but two of Rosenthal's defense witnesses, including the Oakland city attorney who drafted the legal immunity provisions for the city's medical marijuana program.
"I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy, as well as doctor and patient rights, and indeed your own family, are irrelevant to this case," said jury foreman Charles E. Sackett III, who read a letter to Ed Rosenthal.
Defense lawyers made repeated attempts to inform jurors during the trial that Rosenthal was a medical cannabis grower who had been promised immunity from prosecution. But U.S. District Court Judge Charles Breyer blocked every effort, ruling that federal law considers all marijuana use and cultivation a criminal offense. When former Oakland city council member Nate Miley testified that he met Rosenthal, "in the context of Prop. 215," the judge instructed the jury to ignore the comment, and took over the questioning of Miley himself.
"I wondered why the defense portion of your case was so brief as to almost be non-existent?" asked Sackett, a landscape contractor. He said the court was unfair to Rosenthal and to the citizens of California and eight other states where state and federal medical marijuana laws conflict. "We as a jury was unaware that your counsel was being denied the opportunity to present most of your evidence and outside testimony."
Eight of the 14 sitting jurors condemned the verdict. This included one of the two alternate jurors who did not vote, and two jurors who were not present. At the courthouse press conference, jurors and city officials offered their condemnation and apologies. "It is the most horrible mistake I have ever made," said juror Marney Craig, a 58-year-old property manager who voted to convict. "I feel like we were sheep, we were manipulated."
Rosenthal's attorney, Robert Eye, said the defense team held no ill will toward the jurors, whom he called a "courageous" group of people that had simply been placed in an untenable position. Facing the TV cameras with the jurors, Rosenthal and 30 some supporters, Eye added that in a democracy, justice does not end at the courthouse doors.
"Both the jury and I were victims of vicious persecution by an illegal government action," said Rosenthal. He said that prosecutor George Bevan, "persecuted me to shut down the medical marijuana movement -- he lost. I have no regret for helping thousands of patients get their own medicine."
Rosenthal's trial has generated extensive national media coverage, including a Feb. 4 editorial in the New York Times, which asserted that Rosenthal's potential 5- to 20-year sentence "shows that the misguided federal war on medical marijuana has now escalated out of control."
The War At Home
Before their press conference, several jurors attended a hearing in which Bevan pressed Judge Breyer to revoke Rosenthal's $200,000 cash bond and send him to jail until his sentencing on June 4. Bevan insisted that Rosenthal was a flight risk, and complained that Rosenthal had referred to the proceedings as a "kangaroo court." But Judge Breyer cited the "exceptional" nature of the case and allowed Rosenthal to remain free.
Bevan's unsworn testimony to the grand jury has been cited in a defense motion to overturn the indictment against Rosenthal. According to Eye, Bevan secured the indictment by telling skeptical jurists that Rosenthal's cannabis cultivation violated the terms of Prop. 215. If Rosenthal is denied a new trial, Eye says the defense will take the case to the Ninth Circuit Court of Appeals.
San Francisco District Attorney Terence Hallinan asserts that Rosenthal was not violating California medical cannabis laws, and should never have been charged for providing marijuana to patients. "It doesn't take a rocket scientist to know that people are sick and dying," said Hallinan, who worked with the city's health department and medical marijuana clubs to develop a regulated patient supply system. "It's a matter of prosecutorial discretion within the U.S Attorneys office as I, for many years, have exercised my prosecutorial discretion with regards to Prop. 215."
One of the jurors who spoke against the verdict was Pam Klarkowski, a registered nurse who said she has attended to at least one medical marijuana patient. Klarkowski acknowledged that medical cannabis provides effective relief for cancer and AIDS patients, and said that convicting growers makes it more difficult for them to get their medicine. "I do apologize to Ed and his family and to all the patients for whom this will make their lives very difficult," said Klarkowski. "I feel as if we were ramrodded in a way, and not given all the evidence involved to make an educated decision."
Matt Gonzalez, president of San Francisco's Board of Supervisors, or city council, said jurors in cases like Rosenthal's should know that they can nullify a verdict if they find the law is unjust. Craig said she and her fellow jurors had no idea that they had power to disregard the federal law, because the judge never told them. "We were good little girls and boys, and we did what he said because we trusted the system," said Craig. "We felt so intimidated by the way the trial proceeded."
"What the judge did in this case is not only violate the spirit of the constitution, he violated the letter of common law," said Gonzalez. [The jury's] will was not carried out, and their rights were violated by this court."
Another Rosenthal attorney, Bill Simpich, noted that Rosenthal is one of more than 40 medical marijuana patients and caregivers now being threatened with federal prosecution. District Attorney Hallinan said he hoped the federal government would not use Rosenthal's verdict as an excuse to trample the rights of California or San Francisco residents. But Rosenthal's conviction -- and the threat of continued prosecution against medical marijuana caregivers and patients -- appear to have invigorated medical cannabis supporters.
Some are anxiously awaiting an appeals court ruling on Judge Breyer's interpretation of the immunization statute. The ruling, which applies to an Oakland cannabis club, could overturn Rosenthal's conviction. In the meantime, Craig says she will do "whatever I can to get this verdict set aside and see that Ed gets a fair trial with full information provided to the jurors."
Among the activists at the press conference chanting, "No truth, no justice," was Giovanni Leiva, who said he represented an alliance of medical marijuana growers from San Francisco and California's San Joaquin Valley. "We are a coalition to disarm the DEA," announced Leiva. "You are with with us, or you are against us."
Jury foreman Charles Sackett, who described himself as a conservative person who would rather be home pruning his roses, said Rosenthal's trial left him questioning the judicial system for the first time in his life. In his criticism of the trial, Sackett said "I am but a simple gardener, Mr. Rosenthal, and truly do not know if reading this letter is somehow a contempt of court. If it is, perhaps we can share a cell. I'm sure we can find a lot to talk about."
Ann Harrison reports on the drug war from San Francisco. She can be reached at firstname.lastname@example.org.