No Medical Marijuana Defense in Rosenthal Retrial

April 19, 2007

Bay City News, CBS 5 TV (San Francisco)

A federal judge in San Francisco ruled today that for a second time, Oakland marijuana advocate Ed Rosenthal would not be able to claim before a jury that he was growing medical marijuana for patients.

Rosenthal, 62, faces a second trial in the court of U.S. District Judge Charles Breyer on May 14 on marijuana cultivation and distribution charges.

He was convicted in his first trial in 2003, but a federal appeals court overturned the verdict last year on grounds of juror misconduct.

Breyer said at a pretrial hearing today that he was standing by a ruling from the first trial in which he barred Rosenthal from presenting evidence that he was growing marijuana plants for patients under California's Compassionate Use Act.

Breyer said the the 9th U.S. Circuit Court of Appeals upheld that evidentiary ruling as part of the same decision when it ordered a new trial for Rosenthal because of juror misconduct.

The judge said, "I cannot refuse to follow the law of the case."

The U.S. Supreme Court and other federal courts have ruled that federal drug laws make no exception for California's medical marijuana law, a 1996 voter initiative that allows seriously ill patients to use the drug with a doctor's permission.

Breyer also turned down a request by Rosenthal's lawyers to delay the May 14 trial date to give them more time to prepare.

Rosenthal, the author of more than a dozen books about marijuana, faces five counts in the upcoming trial.

They include two counts of conspiring to manufacture and distribute marijuana at an Oakland warehouse and a San Francisco dispensary; two counts of manufacturing and distributing marijuana at those locations; and one count of manufacturing, possessing and distributing marijuana in Oakland in 2001 and 2002.

In the first trial, he was convicted of three counts of conspiring to manufacture marijuana by growing plants for the dispensary; growing plants at the Oakland warehouse; and maintaining marijuana cultivation premises.

Breyer sentenced him to just one day already served in jail, saying that Rosenthal honestly believed he was immune from federal prosecution because he was helping the city of Oakland carry out its medical marijuana program.

Prosecutors have told the judge they won't seek an additional sentence if Rosenthal is convicted in the second trial.

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