By DEAN E. MURPHY,
SAN FRANCISCO, Jan. 31 — A federal jury today found the author of marijuana books and advice columns, Ed Rosenthal, guilty of marijuana cultivation and conspiracy. Under mandatory sentencing laws, Mr. Rosenthal faces a minimum of five years in prison. Mr. Rosenthal, 58, who admitted to growing the plants for distribution under California's medicinal marijuana law, known as Proposition 215, called the verdict a 'terrible decision' and vowed to fight it. His lawyers said they would prepare motions for a new trial immediately.
'What the federal government is trying to do is destroy Prop 215 and eliminate medical marijuana from California,' Mr. Rosenthal said. Proposition 215 'will outlive the Bush administration, it will outlive Ashcroft and it will outlive all of these cruel people who want to stop people from getting their medicine.' The law, passed by voters as an initiative in 1996, permits the cultivation of marijuana as medicine for seriously ill people. Mr. Rosenthal was growing starter plants in a warehouse in Oakland, in his capacity as an 'officer of the city' under Oakland's medical marijuana ordinance. The plants were distributed to organizations and clubs that serve the seriously ill. Besides California, eight other states allow the sick and dying to smoke or grow marijuana with a doctor's recommendation. But the judge in the Rosenthal case, Charles R. Breyer of United States District Court, did not allow Mr. Rosenthal to raise the California law as a defense since Mr. Rosenthal was indicted under federal law. Federal law does not permit marijuana cultivation for medicinal purposes. As a result, Mr. Rosenthal did not take the stand in his own defense and his lawyers said they were unable to explain to the jury his motive for growing the plants. 'Ed, for doing the right thing, is paying a terrible price,' Robert V. Eye, one of Mr. Rosenthal's lawyers, who fought back tears during a news conference after the verdict. 'Social change is never easy.' The jury foreman, Charles Sackett, 51, a landscape contractor in Sebastopol, Calif., said the jury was largely sympathetic to Mr. Rosenthal's predicament. But, Mr. Sackett said, jurors were left with 'no legal wiggle room' because of the decision to exclude any discussion of Proposition 215. 'It was one of the most difficult things we ever did as jurors,' Mr. Sackett said of separating the state and federal aspects of the case. 'We followed the letter of the law. We followed the court's instructions.' Mr. Sackett said that he had voted for Proposition 215 and that he hoped Mr. Rosenthal would ultimately prevail in a higher court. 'I am for the use of medical marijuana, as a number of jurors were,' he said. 'But we just couldn't base our decision on that.' George L. Bevan Jr., the assistant United States attorney, asked that Mr. Rosenthal be taken into custody immediately, but Judge Breyer said he would make a decision about custody at a hearing on Tuesday. Mr. Rosenthal has been free since his arrest last February after posting $200,000 bond. The judge is scheduled to sentence Mr. Rosenthal in June. Under the original indictment, Mr. Rosenthal had faced a minimum sentence of 10 years in prison if convicted, but the jury effectively cut that amount in half when it rejected the prosecution's contention that Mr. Rosenthal had conspired to grow more than 1,000 plants. The jury reduced the number to 100. Mr. Rosenthal's lawyers had argued that since the plants he had grown were starters, not fully grown plants, that the count involving 1,000 plants was excessive.