Feds retrying pot advocate despite judge's suggestion

April 14, 2007

Bob Egelko, San Francisco Chronicle

Federal prosecutors brushed off a judge's suggestion that they not retry a prominent marijuana advocate on cultivation charges and say they will press ahead, even though he cannot be sent to prison if he is convicted.

Assistant U.S. Attorney George Bevan made the announcement at a hearing in San Francisco before U.S. District Judge Charles Breyer, who presided over the first trial of Ed Rosenthal, 62, of Oakland, Calif. When Bevan said last month that the government intended to retry the self-described "guru of ganja," Breyer urged him to reconsider, suggesting that federal resources might be used more productively in prosecutions that result in imprisonment.

But Bevan said late last week that prosecutors had reached their decision after a "thorough and careful review" and that the final word had come from Scott Schools, the interim U.S. attorney in San Francisco. When Breyer asked if Justice Department officials in Washington had been consulted, Bevan said he didn't know.

The retrial, scheduled to begin May 14, will be limited to the cultivation charges of which Rosenthal was convicted in 2003, verdicts that were overturned on appeal last year. Prosecutors have said they would not seek additional imprisonment for Rosenthal, beyond the one day in jail he has already served, if he were convicted again.

Rosenthal was arrested for growing marijuana that he said was intended for medical patients. After he won his appeal on grounds of juror misconduct, prosecutors secured a new federal grand jury indictment in October that included additional charges of tax evasion and money laundering related to his marijuana cultivation.

The new charges could have resulted in a prison sentence of 20 years, but Breyer dismissed them last month, saying they had been added vindictively in retaliation for Rosenthal's successful appeal and his public statements disputing the fairness of his trial.

After the hearing, defense lawyers criticized the retrial decision. But Rosenthal's response was: Bring it on.

"This isn't a criminal case. This is a political case," said Rosenthal, wearing a shiny green robe embroidered with images of marijuana leaves. "When I win this case, it's saying to the government, 'You have to stop harassing the medical (marijuana) dispensaries.' "

Defense lawyer Shari Greenberger said she would ask Breyer to order the government to reimburse Rosenthal for the time his lawyers spent getting the new charges dismissed. Virginia Resner, president of a group called Green Aid, which is raising money for Rosenthal's defense, said preparation for the new trial has already cost $180,000.

Rosenthal is an authority on marijuana cultivation. His latest book was "Why Marijuana Should Be Legal."

His first trial was the first and most prominent of several federal prosecutions of growers who were providing cannabis under a 1996 state initiative that allowed patients to use the drug with a doctor's approval.

(E-mail Bob Egelko at begelko(at)sfchronicle.com.)

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