Medicinal pot grower's case goes to jury

January 29, 2003

By Josh Richman , Oakland Tribune,

SAN FRANCISCO -- A lawyer for pro-marijuana author and activist Ed Rosenthal of Oakland closed his case Thursday by implying jurors should base their decision on conscience, not federal law. 'Send a message about what you expect and demand from the U.S. government when they prosecute a case like this,' said attorney Robert Eye. But Assistant U.S. Attorney George Bevan and U.S. District Judge Charles Breyer reminded jurors they have vowed to put their feelings aside to judge the facts and follow the law. Breyer, citing one of Eye's pleas, told jurors, 'You cannot substitute your sense of justice, whatever that means, for your sense of duty.' This verbal battle over jury nullification -- voting conscience instead of law -- capped a five-day trial that might have raised more questions than it answered for jurors. Rosenthal's lawyers were barred from introducing any testimony or evidence to show that the renowned authority on marijuana cultivation was working under California's medical marijuana law and Oakland's ordinances when he grew marijuana in a Mandela Parkway building. That is because regardless of state and local laws, federal law still prohibits any and all marijuana cultivation, possession and use. And that, in turn, is why the Drug Enforcement Administration raided Rosenthal's home, his grow operation, the Harm Reduction Center medical marijuana club in San Francisco and other sites Feb. 12, 2002. If convicted, Rosenthal, 58, faces at least 10 years and as much as life in federal prison. The jury starts deliberating today. It is unlikely the jury's eight women and four men all would choose to nullify and unanimously acquit Rosenthal, so the defense clearly hopes for a hung jury. If jurors are hopelessly deadlocked, Breyer can declare a mistrial, letting Bevan try the case again with a new jury. Rosenthal's attorneys called only two witnesses. One was Alameda County Supervisor Nate Miley, who testified he visited Rosenthal's operation in 1999 while he was an Oakland City Council member.But when defense attorney William Simpich asked questions hinting at the marijuana's medical purpose, Breyer took over the questioning of Miley. The other witness was Dan Walters, a gardening expert who testified about differences between rooted plants and non-rooted cuttings. Bevan and Rosenthal's lawyers disagree about how many plants were seized, a number that the jury must help decide and that would affect Rosenthal's sentence. Outside the courthouse early Thursday, two men handed out cards that on one side read, 'Jurors Have The Power,' and on the others side urged jurors to acquit if they feel a law is unjust, even if a judge says otherwise. The men would not say if they were handing out the cards for a specific case. But closer to the courthouse doors, seven protesters stood with tape over their mouths and placards pinned to their clothes depicting a marijuana leaf over a red cross, with the words '20 years is not compassion.' Rosenthal's trial has mobilized critics as well as allies. A videotape sent anonymously to ANG Newspapers from Orlando, Fla., contained a clip from an anti-drug documentary of unknown origin, showing Rosenthal -- evidently years ago -- talking to a crowd in a church. 'With all the talk about medical marijuana, I have to tell you that I also use marijuana medically. I have a latent glaucoma, which has never been diagnosed,' he says, drawing laughter. 'The reason why it has never been diagnosed is because I've been treating it.' An unseen narrator says, 'Rosenthal's joking attitude shows the blatant false pretenses of the medical use campaign.' Then Rosenthal again: 'I have to be honest, there is another reason why I do use marijuana, ... and that is because I like to get high.' Simpich called the tape a 'Mickey Mouse' effort to smear Rosenthal and hardly startling. 'He's been a strident pro-marijuana advocate his entire life.' Contact Josh Richman at jrichman@angnewspapers.com .

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