Ganja guru's retrial set for next week

May 09, 2007

Josh Richman , ANG Newspapers (CA)

Denying a slew of defense motions, a federal judge set the stage Thursday for the marijuana-cultivation retrial of Oakland's "Guru of Ganja" Ed Rosenthal to begin next week.

Jurors will be selected Monday and opening statements will be given Tuesday, launching a trial lasting three to four weeks, U.S. District Judge Charles Breyer said.

Attorneys for Rosenthal and Assistant U.S. Attorney George Bevan sparred before Breyer for about two hours Thursday as each side argued for inclusion or exclusion of certain evidence.

When the dust cleared, Breyer had denied Rosenthal's motion to dismiss the case, noting the 9th U.S. Circuit Court of Appeals had remanded it to him for retrial and that's what he intends to provide.

And just as he had at Rosenthal's first trial, the judge again denied Rosenthal's motions to introduce evidence and testimony showing he'd grown marijuana for medical use with the City of Oakland's knowledge and blessing.

Famed for his marijuana cultivation books and the "Ask Ed" column he wrote for High Times magazine, Rosenthal's 2003 conviction of three marijuana-growing felonies came more than a year after federal agents raided his Oakland home, an Oakland warehouse in which he was growing marijuana, and a San Francisco medical marijuana club he supplied.

Medical marijuana use on a doctor's recommendation is legal under state law but prohibited by federal law, so Rosenthal was barred from mounting a medical defense at trial.

 Breyer sentenced him to one day behind bars -- time he'd already served.

The 9th U.S. Circuit Court of Appeals overturned his convictions in April 2006, finding juror misconduct -- a juror's conversation with an attorney-friend during deliberations -- compromised Rosenthal's right to a fair verdict and so warranted a new trial. But the court also rejected Rosenthal's claim of immunity from prosecution as an officer of Oakland who grew the drug under the city's medical marijuana ordinance.

Prosecutors re-indicted Rosenthal in October, adding charges that he'd laundered marijuana proceeds by buying four money orders totaling $1,854, and that he'd falsified tax returns for 1999, 2000 and 2001 by omitting income from his marijuana distribution. But Breyer in March tossed out those new charges, deeming them to be vindictive prosecution.

The government already has said it won't seek more than the one-day jail sentence Rosenthal served for his original conviction should he be convicted anew. Breyer has made it abundantly clear he'd like to see the case go away, suggesting the government should weigh whether its time and energy -- as well as his own -- is best spent on re-trying a man who already has served his sentence. Prosecutors chose to proceed anyway.

But if Breyer seemed testy with anyone Thursday, it was the defense. When attorney Shari Greenberger said she was "inclined" to withdraw part of a motion regarding evidence seized at the marijuana warehouse on Mandela Parkway, Breyer snapped, "This is not an encounter session" and urged the defense attorneys to make a decision.

Breyer rejected the defense's call for a hearing on whether the federal ban on marijuana is scientifically and medically appropriate, saying he doesn't have jurisdiction to do so. When the attorneys tried to argue it was a novel issue in a case like this, Breyer replied, "Listen, I'm a child of the '60s. ... This is not new to me."

Contact Josh Richman at jrichman@angnewspapers.com or (510) 208-6428.



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