Peter Schrag: Trust-buster -- Ashcroft kicks the dog once again

February 11, 2003

Peter Schrag,

A few more victories like the one the feds just got in their prosecution of Ed Rosenthal, Oakland's officially deputized medical marijuana grower, and they may be lucky if they get convictions in the future of even the most hardened dealers. Shortly after they voted to convict, five of the jurors held a press conference to repudiate their own verdict: Had they been allowed to hear testimony that Rosenthal had been growing his pot plants for the medical uses permitted under California's Proposition 215, they said, they would not have convicted. But they weren't allowed to hear any of that. Federal Judge Charles Breyer ruled that California law had no bearing on the federal drug law under which Rosenthal was tried. The defense hoped to argue that since the federal law immunized state and local drug enforcement officers against federal prosecution, Rosenthal, as a city-deputized official, should have been able to cite Proposition 215, California's medical marijuana initiative, and his function under it. Breyer, the thoughtful and respected judge who blocked that defense, is not to blame. It's not the job of jurors to sort out conflicts between federal and state law, if any; in any case, federal law trumps state law. If state law were allowed to nullify federal law, the South might still be segregated. But that didn't mitigate the frustration of the jurors who felt manipulated or the clumsiness and stupidity of the federal government in bringing the case. The stupidity was underlined in a White House report issued by the Office of Management and Budget almost at the same moment as the jurors' press conference last week. Castigating DEA, the Drug Enforcement Administration, for its ineffectiveness in stemming the flow and distribution of narcotics in the United States, the report concluded the agency "is unable to demonstrate progress in reducing the availability of illegal drugs in the United States." The DEA, whose budget has doubled in the last seven years, now gets nearly $1.6 billion a year. At a time when national security and terrorism are stretching all law enforcement resources, only politics, vindictiveness or bureaucratic clumsiness can explain the government's extraordinary attacks on state medical marijuana laws and those who supply the sick under their provisions. You'd think they'd have more urgent things to do with DEA agents and federal prosecutors. Bill Zimmerman, who ran the campaign for the passage of Proposition 215 and similar laws in other states, says the feds are obsessed with the medical marijuana issue because it raises medical and scientific questions about marijuana prohibition in general. And since marijuana "is the backbone of the drug war" -- the place where the lion's share of drug war funds are spent -- people such as Rosenthal become prime targets. But the explanation may lie just as much in the frustrations and personal rigidity of Attorney General John Ashcroft, who, in the face of the ongoing terror threat, the unsolved anthrax attacks and the bumbling of the FBI and CIA both before and after 9/11, has had precious little success to report. Worse, with every passing day, Ashcroft's inflexibility will make success still more difficult to achieve. Two weeks ago, it was disclosed that Ashcroft ordered federal prosecutors in New York state to pursue the death penalty against murder suspect Jairo Zapata even after they'd reached a plea agreement under which Zapata agreed to cooperate in an investigation in exchange for a life sentence. Ashcroft voided the deal so that, according to his spokespeople, there would be consistency in the application of the federal death penalty law. Ashcroft has upset a number of U.S. prosecutors by ordering pursuit of the death penalty even though they'd recommended against it. But even if that brought consistency, many prosecutors believe it will also bring an accumulation of prosecutorial problems as defendants become reluctant to cooperate with a Justice Department whose plea bargains can't be trusted or whose prosecutors will be reluctant to plea bargain capital cases. The aftermath of the Rosenthal case has brought renewed talk about legislation creating some formal state-run system of marijuana production and distribution, complete with state registries and other legal processes. Supporters of such a system, which would serve the patients who use medical marijuana to combat the loss of appetite, nausea and other debilitating effects of their diseases and the medicines, particularly chemotherapy, used to treat them, say it would be harder for the feds to attack. That's not likely to happen -- Gov. Gray Davis killed similar legislation before -- nor is it certain to work. But continued prosecution of individual suppliers of medical marijuana under the gag rule invoked in the Rosenthal prosecution is almost certain to raise the resistance of jurors to convicting anyone of marijuana charges. It's a hell of way to build trust in the system. "Another such victory," said King Pyrrhos after his bloody triumph over the Romans in 279 B.C., "and we are undone."

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