Judge just followed law in pot trial, experts say

February 05, 2003

Harriet Chiang,San Francisco Chronicle Legal Affairs Writer ,

When U.S. District Judge Charles Breyer took on the trial of medical marijuana activist Ed Rosenthal, he knew all about the uneasy relationship between federal and state laws. After all, in 1998 Breyer had barred the Oakland pot club from distributing marijuana for medical purposes, ruling that it conflicted with federal laws. The U.S. Supreme Court ultimately agreed with Breyer, finding no exception for the medicinal use of marijuana. It was pure coincidence that Breyer would end up with the Rosenthal case because federal cases are randomly assigned. But friends say Breyer probably knew exactly what he was doing when he ruled before the federal trial that Proposition 215, the 1996 medical marijuana initiative, was off limits. Breyer's confining the case to federal law later outraged jurors who felt they were misled because they were never told of Rosenthal's motive for growing marijuana to supply medical patients. "I don't see how you can disregard the rulings of the U.S. Supreme Court," said Jerome Falk, a veteran San Francisco lawyer and close friend of Breyer's. "It's sort of a no-brainer." Any criticism of Breyer is out of the ordinary. Since he was appointed by President Bill Clinton in 1997, Breyer, 61, is widely regarded as an excellent judge with a strong grasp of both the law and the practical realities. Ira Jacobowitz appeared before Breyer when Jacobowitz represented four senior Oakland tenants about to be evicted under a controversial federal policy forbidding drug use by friends or relatives at public housing facilities. Breyer ended up issuing an injunction preventing the seniors from being evicted because they didn't know about the drug activity. The U.S. Supreme Court ultimately reversed Breyer's ruling. "He got down to the real meaning of the policy," Jacobowitz recalled. Attorney Gary Lafayette, who represented the Oakland Housing Authority, found Breyer easy to deal with. "He tries to think through the issue to come up with a practical result," Lafayette said. Friends describe Breyer as thoughtful and engaging with a refreshing, unpretentious style, an unusual trait for a federal judge. "I don't think he takes himself as seriously as unfortunately some of us on the bench do," said Justice J. Anthony Kline of the state appeals court in San Francisco and a good friend of Breyer's. Kline scoffed at the suggestion that Breyer may have acted out of some personal agenda in barring Rosenthal from raising medical marijuana as a defense. "He is regarded by most people who are familiar with his work as a person of impeccable integrity," Kline said. Breyer comes from rich legal stock. His older brother is U.S. Supreme Court Justice Stephen Breyer. Before he became a judge, Breyer was one of the most prominent attorneys in San Francisco, a partner at the political powerhouse Coblentz Cahen McCabe & Breyer. His clients included rock star Grace Slick and newspaper publisher William R. Hearst III. Breyer was born and raised in San Francisco and attended Lowell High School. His father, Irving Breyer, was general counsel for the San Francisco Board of Education from the 1950s through the 1970s. Breyer graduated cum laude from Harvard Law School in 1963 and received his law degree from UC Berkeley's Boalt Hall School of Law. He was an assistant district attorney in San Francisco and a Watergate special prosecutor before joining William Coblentz in 1975. When he's not on the bench, Breyer, a dapper dresser who favors bow ties, likes to ride his bicycle, ski and take in an occasional Giants baseball game. He also loves to cook and is said to make a mean risotto. He is married to Sydney Goldstein, executive producer of City Arts & Lectures Inc. They have a daughter and a son. Friends say he has no noticeable ego, which may explain his candid comment in court Tuesday about his ruling that Rosenthal was not protected under a federal immunity drug enforcement law even though he was deputized by Oakland city officials. "I could be wrong. The courts of appeal could disagree with me," he told the lawyers. Falk said Breyer is unfazed by any fallout from the Rosenthal trial. "He loves it on the bench," Falk said. "Thinks it's the best job he's ever had."1 E-mail Harriet Chiang at hchiang@sfchronicle.com.

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