Medical marijuana advocate convicted

May 30, 2007

Bob Egelko, San Francisco Chronicle

Ed Rosenthal was a free man, but not a happy one, after a jury convicted him Wednesday for a second time of violating federal drug laws by growing marijuana for medical patients.

Rosenthal, 62, of Oakland -- an authority on cannabis cultivation, former columnist for High Times magazine and longtime advocate of legalizing marijuana -- was fuming that the same federal judge who declined to imprison him had also refused to let him argue to jurors that his purpose was healing people, not dealing drugs.

"Once again, the jury was not allowed to hear valuable information it needed to make an unbiased and fair decision,'' Rosenthal said outside court after he was convicted of three felony charges. After the jurors learn that they were "compelled to make an immoral decision,'' he said, they will regret the verdict for the rest of their lives.

Jurors left the federal courthouse in San Francisco without discussing the case. Assistant U.S. Attorney George Bevan declined comment. Rosenthal's lawyers said they would ask the judge to throw out the convictions at a hearing next week.

After a two-week trial and a day of deliberations, the jury convicted Rosenthal of growing marijuana, maintaining a building for illegal cultivation and conspiring to grow and distribute marijuana at an Oakland warehouse where federal agents seized more than 3,700 plants in February 2002.

Jurors acquitted him of maintaining another pot-growing operation at the Harm Reduction Center, a San Francisco medical marijuana dispensary, and deadlocked on a fifth charge of conspiracy to grow and distribute marijuana there.

A separate jury convicted Rosenthal of similar charges in 2003, but an appeals court overturned the verdict because of misconduct by a juror who called a lawyer for advice during deliberations.

The charges normally carry a sentence of at least five years in prison, but U.S. District Judge Charles Breyer sentenced Rosenthal to only a day in jail, which he had already served. Breyer said Rosenthal had believed he was acting legally because Oakland had designated him as its agent in the city's medical marijuana program.

Federal prosecutors tried to add charges of money-laundering and tax evasion for the retrial, but Breyer refused, saying the government was retaliating for Rosenthal's criticism of the case and his successful appeal. Prosecutors proceeded with the second trial, rejecting the judge's suggestion that they drop the case, but conceded that they could not seek additional punishment for Rosenthal.

In both trials, Breyer barred evidence that the marijuana was intended for medical use under Proposition 215, the 1996 California initiative allowing patients to use the drug with their doctor's approval. He also excluded evidence about Rosenthal's designation as an agent by the city of Oakland.

Left without a defense, Rosenthal's lawyers called no witnesses at the retrial, and instead argued that the prosecution's case was tainted by the testimony of some of Rosenthal's former friends and business partners who had been granted leniency.

Defense lawyers also did all they could to remind jurors of the state law -- addressing them as "fellow Californians'' during opening and closing arguments, and urging them to do the right thing without fear of repercussions. But prosecutor Bevan told jurors they were bound by Breyer's instructions, which required them to apply federal drug laws.

E-mail Bob Egelko at

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