J.K. DINEEN, SF Examiner,
Questions surrounding the controversial conviction of medical pot advocate Ed Rosenthal continued to swirl Monday as jury members expressed outrage over how the trial was conducted and a prominent legal scholar said the case belongs before the U.S. Supreme Court. Harvard Law School professor Alan Dershowitz called the Rosenthal case 'a great issue for the Supreme Court' and predicted the justices would overrule federal Judge Charles Breyer, whose brother is U.S. Supreme Court Justice Stephen Breyer.
'I suspect Charlie's older brother will overrule him,' said Dershowitz, who worked on O.J. Simpson's defense team. Rosenthal, the author of numerous books about the virtues of marijuana, admitted to growing the plants for distribution under California's medicinal marijuana law, known as Proposition 215, which was passed by voters as an initiative in 1996. While Rosenthal had been deputized by Oakland city officials to grow medical pot, Judge Charles Breyer banned testimony related to state medical marijuana laws because federal law forbids cultivation of the plant. Dershowitz argued that Breyer should have allowed the issue of medical marijuana into the testimony. 'When there's a conflict between federal and state law in a criminal case, the jury ought to know about it,' said Dershowitz. Dershowitz said the conservative-leaning Supreme Court has tended to side with states rights in recent years, which could be good news for Rosenthal. He cited a case involving the possession of a handgun near a Texas school, which is illegal under federal law, but allowed under Texas law. The court sided with Texas law, saying the regulation of schools is a state issue rather than a federal issue. 'Here we're talking about healthcare, which is very much a state issue, too,' said Dershowitz. Meanwhile, five or six jurors are expected to speak out today after Rosenthal's custody hearing, at which the judge will determine whether Rosenthal remains in prison until his sentencing, scheduled for June. Juror Marney Craig called the trial 'the most horrible experience I've ever been through.' 'It's the biggest mistake I've made in my life and a lot of jurors feel the same way,' she said. 'It was a very unfair trial and not impartial at all. How can we be fair and impartial since the judge wasn't fair and impartial? This man was not a criminal.' Craig said she had not heard of 'jury nullification' where jurors basically ignore the judge's instructions and do what they want. 'Jury nullification -- that was a possibility nobody knew about,' she said. But Golden Gate Law School Dean Peter Keane said there's little the jury can do now. 'They had their chance, they had the power to nullify,' said Keane. 'Once they rendered the verdict, they were too late.' Keane defended Breyer's decision to ban the discussion of state marijuana laws from the federal courtroom. 'He would have been violating his oath if he had (allowed it),' Keane said.