Judge keeps tight rein on pot trial - References to medical uses quickly squelched in federal court

January 29, 2003

S.F. Chronicle ,

The Bay Area's first federal medical marijuana trial ended Thursday witha bizarre touch that symbolized the entire case: The judge took overquestioning of a defense witness to make sure he didn't refer to themedical use of marijuana It started when Alameda County Supervisor Nate Miley mentioned that hehad met defendant Ed Rosenthal 'in the context of Proposition 215,' the1996 California medical marijuana initiative Without prompting from the prosecutor, U.S. District Judge Charles Breyer-- vigilant about keeping the trial focused on federal law, which does notrecognize medical marijuana -- told jurors to disregard the reference A few minutes later, as Rosenthal's lawyer struggled to let Mileydescribe the defendant's motives and the city of Oakland's endorsement ofhis work as a medical marijuana supplier, the judge verbally shoved theattorney aside. Breyer then asked Miley a few yes-or-no questions andabruptly curtailed his testimony, to gasps from Rosenthal's supporters Breyer's tight rein on Rosenthal's weeklong trial reflected the chasmbetween strict federal drug laws and California's official tolerance ofmedical cannabis. The judge has made it clear that, in his view, bothProp. 215 and the public sentiment behind it are foreign subjects for ajury considering federal cultivation charges 'You are not to consider the purpose for which marijuana is grown,'Breyer told the jurors after defense lawyer Robert Eye made one of hisnumerous attempts to enter a forbidden area. At another point, when Eyeurged jurors to use their 'common sense of justice,' Breyer cut him offand said, 'You cannot substitute your sense of justice, whatever that is,for your duty to follow the law.' Rosenthal's supporters, who had packed the courtroom, groaned as Breyerrepeatedly blocked defense attempts to refer to Prop. 215, Rosenthal'sintent to grow marijuana for patients at a San Francisco dispensary, andhis relationship with the city of Oakland, which deputized him as anagent to supply a now-closed medical marijuana cooperative Hemmed in by Breyer's rulings, Rosenthal did not testify and was left tohope that a sympathetic local jury would bridge the apparent gulf betweenstate and federal law 'I think the jury knew what the case was all about,' Rosenthal toldreporters after the truncated defense case. He said Breyer 'didn't wantthe whole truth; he only wanted pieces of the truth.' Miley, a former Oakland city councilman who sponsored resolutions to lendthe city's official endorsement to medical marijuana, was also frustratedwith the restrictions on his testimony 'I think it does a disservice, not only to Ed but to the citizens of thisstate who supported 215,' he told reporters, suggesting that the federalgovernment 'should just back off' from interfering with the state law The jury begins deliberations today Rosenthal, 58, is charged with marijuana cultivation, conspiracy andmaintaining a place for cultivation. He faces at least 10 years in prisonif convicted of conspiring to grow more than 1,000 plants The prosecution of Rosenthal -- the 'Ask Ed' columnist for High Times andCannabis Culture magazines, and author of more than a dozen books --represents an escalation of the federal government's war on medicalmarijuana in California that began during President Bill Clinton'sadministration Voter approved Prop. 215 in 1996. It allowed seriously ill patients touse marijuana with their doctor's approval. Almost immediately, Clinton'sJustice Department filed civil suits to close local pot clubs and soughtto punish doctors who recommended marijuana The Bush administration has turned to statewide raids and criminalprosecutions -- most notably, the charges against Rosenthal and othersassociated with the San Francisco Harm Reduction Center Federal agents said they found more than 3,000 marijuana plants in anOakland warehouse leased by Rosenthal. The defense tried to show thatmost of them were not technically 'plants,' with root systems, but merelyclones, or cuttings, intended for sale to patients at the Harm ReductionCenter Under federal law, cultivation of more than 1,000 plants carries amandatory 10-year sentence, and cultivation of 100 to 1,000 plantscarries at least five years In closing arguments Wednesday, Assistant U.S. Attorney George Bevanportrayed his case as open-and-shut: 'Cultivation of marijuana is afederal offense, period. Nothing else matters.' But Prop. 215 sifted into the case, with demonstrations by taped-mouthsupporters outside the courthouse, pretrial questioning of jurors abouttheir views on the measure, and incessant defense efforts to slip wordslike 'medical' and 'patient' into questioning or testimony, whichgenerally drew rebukes from Breyer After defense lawyer Eye made a final plea Thursday for jurors to followtheir consciences, an irritated Bevan said Eye was out of line. 'This isa federal courtroom,' the prosecutor said. 'It is not a polling place.' E-mail Bob Egelko at begelko@sfchronicle.com

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