On February 12, last year, with the wounds of 9/11 still fresh in the American psyche and the country supposedly at war with external enemies and infiltrators, the federal government invaded California to wage war against Cannabis Culture cultivation expert and book publisher Ed Rosenthal and a group of associates involved with marijuana gardens and sales in the San Francisco area (CC#37, DEA attacks med-pot and hemp).
DEA Chief Asa Hutchinson, who has since gone on to become a powerful undersecretary with the Homeland Security agency, personally delivered the war declaration, leading a posse of DEA agents into the heartland of Proposition 215, the landmark med-pot law passed by California voters in 1996.
By the time Hutchinson’s agents were through conducting raids and arrests in San Francisco and Oakland that day, several people were in custody, among them Rosenthal, who was eventually charged with three federal crimes: conspiracy to “manufacture” more than 1,000 marijuana plants, manufacturing more than 100 marijuana plants, and maintaining a place for manufacturing marijuana.
The government’s use of the term “manufacture” shows the unnatural view that American federal cannabis law has towards biology. In the android semantics of federal law, to “grow” marijuana is to “manufacture” it, and anti-plant laws specify absurdly harsh penalties for gardeners: Rosenthal faced 10 years to life in prison and a $4 million fine just for the conspiracy charge.
For “manufacturing” more than 1000 plants, he faced five to 40 years in prison and two million dollars in fines. Just for having a place where such activities could take place, he faced up to 20 years in prison and a half million in fines.
Hutchinson tried to give a speech at San Francisco’s Commonwealth Club the night of the raids, but angry med-pot advocates shouted him down inside the club while street protests, including speeches from San Francisco District Attorney Terence Halinan and other government officials, distracted him from outside the club.
He finally gave up and fled, leaving pain and rage in his wake.
DEA narks and sharks
The DEA investigation into Rosenthal and other Bay Area med-pot networkers started in earnest in 2001, when several people caught with large amounts of marijuana and cash on the West Coast decided to save their asses by narking on San Fran med-pot club businessman Ken Hayes and his network of mules and growers.
In retrospect, Rosenthal should have paid more attention to the advice he gave others in one of his books ? Marijuana Law: Don’t Get Busted. DEA documents show he was careless in his grow room security protocols and was in bed with a den of losers who were too eager to snitch on him, or who got themselves busted because of avoidable mistakes.
Perhaps the most disgusting piece of undercover evidence that led to the February 2002 raids was that a highly-respected San Francisco medical marijuana advocate who claimed to be a priest ? a man who called himself “Father Nazarin” ? allegedly sent a letter to the DEA in January 2002 that called Rosenthal and his associates “profiteer” drug-dealing “criminals” who hid behind Prop 215 so they could sell tons of pot at high retail prices.
Nazarin, whose real name is Bashir Ahmed, was a “religious counselor” assisting a San Francisco med-pot club that was once called “St Martin de Porres.” The self-styled nark-priest, whose continuing ability to walk the streets of San Francisco unharmed proves that marijuana users are amazingly pacifistic, was arrested in November 2002, after police discovered him growing 250 marijuana plants in his San Francisco home.
The DEA’s net was also cast into Canada; they instructed Mounties to pick up Ken Hayes, one of the directors of the med-pot club Rosenthal allegedly grew pot for, and hold him for extradition. Hayes was living in Canada at the time, growing pot and raising a family; he is seeking political asylum there (CC#38, Canadian police raid US med-pot refugees).
Of all people arrested that fateful February day, Rosenthal was the most exposed, and not just because the early dawn raid on his home saw a nude Rosenthal sleepily greet agents at his front door.
By any estimation, Rosenthal is one of the world’s most famous pot people. For 30 years, he’s been an outspoken advocate of marijuana and progressive causes, a man who, unlike most other marijuana grow book writers, actually uses his real name in his work.
Rosenthal’s Ask Ed column was legendary, having for years been published in High Times until Rosenthal left that magazine to write for Cannabis Culture in 2000 (CC#27, Ed Rosenthal: marijuana’s question and answer man).
When the feds busted Rosenthal it immediately became a cause celebre. Supporters like Wil Foster, a marijuana law victim who only narrowly escaped a lifetime in prison in Oklahoma for growing pot, started a legal defense fund called Green Aid that raised hundreds of thousands of dollars for Rosenthal’s defense team.
Green Aid and Rosenthal’s wife Jane Klein put together a formidable media spin machine that garnered surprisingly favorable coverage of the case in mainstream media outlets like CNN and The New York Times.
By the time Rosenthal’s case was ready for trial in January 2003 in the courtroom of federal district court Judge Charles Breyer, the media and med-pot supporters were solidly lined up in favor of Rosenthal.
Contempt of court
Media support and spin doctoring are important tactics for many marijuana defendants, but in the end, cases are won or lost in the courtroom.
Rosenthal’s vaunted defense team, attorneys Bill Simpich and Robert Eye, had a formidable task ahead of them. The physical evidence, the narks, and Rosenthal’s own comments indicated beyond doubt that he was indeed growing lots of marijuana in an Oakland warehouse that he owned.
There were few substantive irregularities in how the feds obtained their evidence against the grow expert. There were insider witnesses, such as Jimmy Halloran, who had been in the pot business with Rosenthal and who were prepared to testify against him in return for leniency.
Federal prosecutors, backed by a US Supreme Court ruling in the Jeff Jones/Oakland Cannabis Buyers Cooperative Case, have successfully argued that marijuana is illegal in all the United States, regardless of pro-pot laws passed by voters in individual states. In case after case in federal court, California pot cultivation defendants have been prevented from even mentioning Proposition 215, because federal judges contend it doesn’t matter if defendants are following California law and growing pot for medical purposes.
Rosenthal’s cause was made even more difficult because he was to be tried in the courtroom of Judge Charles Breyer, brother of US Supreme Court Justice Stephen Breyer, who has a long history of working against Prop 215 defendants and providers.
Thus, armed with sufficient funding but few truly compelling avenues of defense in a hostile courtroom, and representing a client whose idealism and courage ruled out the possibility that he would accept a plea bargain or other agreement, Rosenthal’s attorneys struggled to create a winning legal strategy.
In the end, they settled on several tactics. They argued that Rosenthal was being selectively prosecuted ? singled out because of his status as the country’s most prolific marijuana author and book publisher. They contended that the US Constitution’s 11th Amendment stipulates that state’s and citizen’s rights, as expressed by Californian’s support for Prop 215, must not be contravened by federal intervention unless there is a clear “interstate” aspect to the crimes that the feds are imputing to the defendant.
They also argued that Rosenthal was an “officer of the City of Oakland” officially assisting the city’s implementation of its Prop 215-related medical marijuana supply program. They said their client’s official status gave him immunity from controlled substances laws, and that his prosecution was a form of entrapment that violated his due process rights. One precedent for their assertion is a law that gives police officers immunity when they possess, buy, or sell drugs in the course of undercover work or other official duties.
They asserted that the DEA told medical marijuana activists that DEA would respect California’s medical marijuana laws; they said Oakland’s city attorney and the former head of the city’s Narcotics Division had not been told by DEA that the city’s pro-marijuana policies violated federal law.
The Rosenthal team also asserted a more mundane legal strategy by claiming irregularities in the DEA affidavit that led to the search warrant executed at Rosenthal’s warehouse grow operation.
Finally, defendant’s counsel argued that the judge’s pre-trial stipulation that he would not allow mention of medical marijuana, Prop 215 and other contextual facts during the trial prevented Rosenthal from defending himself.
Judge Breyer rejected every significant aspect of these pre-trial defense arguments in pre-trial rulings, so Rosenthal appealed Breyer’s rulings to the 9th Circuit Court, which also rejected the defense motions.
With most of his legal strategies thwarted, Rosenthal set his hopes on a sympathetic jury.
But Judge Breyer worked quickly to screen out jurors who had information or opinions that would make them likely to look favorably on Rosenthal’s actions. Anyone who expressed belief in the validity of Prop 215, state’s rights, or medical marijuana was prevented from being a member of the 12-person panel.
During the trial, which began on January 21, Breyer made sure the jury didn’t hear crucial testimony that would have proved Rosenthal had been made an officer of the City of Oakland, authorized to produce medical marijuana.
With protesters outside the courtroom wearing duct tape on their mouths to symbolize the med-pot censorship going on inside, and major mainstream media outlets running articles wholly favorable to Rosenthal, prosecutor George Bevan asked Breyer to order Rosenthal, his family and his lawyers not to talk to the media.
Bevan was particularly concerned about a San Francisco Examiner front page photo that showed Rosenthal hugging his 12-year-old daughter, Justine. The story’s headline proclaimed, “My dad’s a hero.”
Observers who have met Justine and her brother, Nick, a law school student, say that the Rosenthal children and their mother Jane have been especially effective advocates for the beleaguered, bespectacled ganja gardener.
“If you talk to Justine, you find out she knows as much as a college senior about literature, art, and world affairs,” commented digital pot photography activist Chadman, who has been covering the trial. “Nick is also very sharp, very articulate, and Jane is absolutely tenacious in standing by her man. What this shows is that a guy who is being portrayed as a dopehead and a greedy drug dealer by the government is actually somebody who exemplifies family values. So why is the government trying to destroy this family?”
After lawyers for several newspapers argued in court against the censorship order, Judge Breyer refused Bevan’s request, but asked Rosenthal’s lawyers to advise him not to speak to the press. The judge also implied that if Rosenthal or his allies continued to speak out about his case, that he might impose harsh sentences on Rosenthal as punishment for such behavior if Rosenthal was convicted.
Breyer again stepped in to sabotage defense tactics when the grow guru’s defense team tried to call a key witness, Nate Miley ? a former member of the Oakland City Council who took a tour of Rosenthal’s Oakland grow before the bust. Breyer at first refused to allow Miley to testify, then allowed Miley to testify only after pre-approving the questions Rosenthal’s lawyers could ask him.
As soon as Rosenthal attorney Bill Simpich began questioning Miley, however, Bevan and Breyer interfered.
Simpich gamely tried to ask Miley the pre-approved questions, but Breyer’s open hostility to the defense attorney led to a heated exchange, after which Breyer did something seldom seen in any courtroom in a free country: he stopped Simpich from questioning the witness and asked the questions himself.
Nevertheless, Miley managed to tell the jury he had toured Rosenthal’s grow warehouse as a representative of the city, that pot plants had been growing there, and that Rosenthal made no attempt to conceal his activities.
The trial continued several more days in this fashion, with Breyer repeatedly hobbling Rosenthal’s attorneys, but Rosenthal’s defense team scored important victories using an expert witness who trashed the government’s claims about how many plants Rosenthal was growing.
The trial was a bizarre circus at times, and not just because of the judge’s charades. A parade of traitors, testifying under government promises of immunity from prosecution, provided testimony damaging to Rosenthal. Sordid infighting that dogs California’s med-pot industry was also put on display, with evidence indicating that some med-pot growers and providers were acting more like Babylon businessmen than healer heroes.
This infighting led former San Francisco politician Mark Leno to place a ballot measure on last November’s ballot, which encouraged the city to study setting up its own medical marijuana grow and distribution center. The ballot measure passed, and Leno today says that the city apparently intends to move forward with safe provision of med-pot to qualified patients.
“The question is how to give patients access to their medicine if the federal government is going to continue their assault on those growers who, at great risk, attempt to provide patients with their physician recommended medicine,” said Leno.
By the time the prosecutor and defense attorneys were ready to make their closing arguments, it was obvious the jury was troubled by the proceedings, and by Judge Breyer’s clear bias against Rosenthal.
Breyer repeatedly interrupted Rosenthal’s defense team during their closing summations and instructed the jury that they were not to consider issues of justice, medical marijuana, and motivation when determining their verdicts.
After a night off, the jury came back on January 31 to hand down a guilty verdict on three counts. Still, Rosenthal’s team considered one aspect of the jury decision to be encouraging: the jury decided that Rosenthal had not been involved in attempting to grow “1000 or more marijuana plants,” although it did find him guilty of trying to grow pot. This numerical distinction lowered the mandatory minimum sentence that Breyer would be obligated to impose.
The final verdict means that Rosenthal’s sentence could be anywhere from five to 85 years in prison, plus several million dollars in fines.
Rosenthal’s trial became a vortex for the general feeling in California that the federal government is waging war on voters and on med-pot patients and providers.
The grow doctor’s trail was attended by medical marijuana patients; many of them wept when the verdict was announced. Nicholas Feldman, a quadriplegic cerebral palsy patient who smokes herb for pain relief and to relieve spasticity, arrived in court in a wheelchair.
“How can they do this to us? People are in pain and it means a lot to us as citizens not to see a person suffer,” he said. “I am here today for people who could end up in jail for helping ease my pain.”
As soon as the trial was over, several jurors began speaking out against the judge and the federal government’s approach to medical marijuana.
In particular, the jurors complained that the judge had prevented them from learning key facts that would have made them vote for acquittal.
“I feel like I made the biggest mistake of my life,” 58-year-old juror Marney Craig told the media. “A lot of jurors feel the same way. It was a very unfair trial and not impartial at all. How can we be fair and impartial since the judge wasn’t fair and impartial? The more information we get, the more we realize how manipulated and controlled the whole situation was, and that we were pawns in this much larger game. As residents, we voted to legalize medical marijuana and now we are forced to sit here and not take any of this into consideration? This man was not a criminal.”
“I really feel manipulated in a way. I feel the jury was railroaded into making this decision,” said juror Pam Klarkowsky, a 50-year-old nurse. “Had I known that information, there is no way I could have found that man guilty.”
Jury foreman Charles Sackett Sebastopol said Rosenthal’s conviction should be overturned on appeal.
“Some of us jurors are upset about the way the trial was conducted in that we feel Mr Rosenthal didn’t have a chance and therefore neither did states’ rights or patients’ rights,” Sackett commented. “I would have liked to have been given the opportunity to decide with all the evidence.”
“If I had known that he was told he could grow this by the city, that would have raised some questions for me in front of the judge,” said juror Debra DeMartini. “It’s a waste of taxpayer money to bring these cases and prosecute people.”
On February 4, when Rosenthal was back in court to see if Breyer would grant Prosecutor Bevan’s request to send Rosenthal to jail until a June sentencing date, six jurors held a press conference during which they apologized for their verdict and bitterly condemned the judge and the proceedings.
Finally aware that he had made big errors that would likely lead to the convictions being overturned on appeal, Breyer refused to jail Rosenthal pending sentencing, citing the “extraordinary” circumstances surrounding Prop 215 and the trial.
In late February and early March, Rosenthal’s defense team presented evidence that juror Craig and another juror were “improperly influenced” by outsiders during their time on the Rosenthal jury.
Craig allegedly ignored the judge’s instructions, which told jurors not to talk about the case to outsiders during the trial, by asking an attorney friend if jurors were allowed to disregard the judge’s instructions regarding medical marijuana.
Rosenthal’s attorneys allege that Craig was incorrectly advised by her friend, who allegedly said Craig could not disregard the judge’s instructions or engage in “jury nullification,” which takes place when jurors decide that a law is unjust and therefore vote to acquit a defendant accused of violating it.
If Breyer or an appeals court agree that juror integrity was compromised by Craig’s conversation with an attorney and the “inaccurate” advice she received, Rosenthal could possibly be granted a new trial.
I spoke to Rosenthal several times after the verdict was announced. He was sad and exhausted, but resolute and grateful for messages of support he had received from freedom lovers worldwide.
Rosenthal was confident that he would be exonerated on appeal, and would again be able to grow the plant he so loves. “This case will be the tipping point that will break down the wall of prohibition,” he asserted. “This is not about poor Eddie who got caught growing pot. It’s about the rights of Americans to vote and have their votes respected, to utilize healing plants, and to be free from a dictatorial government.”
Rosenthal vowed to continue producing his respected grow advice column for Cannabis Culture, and said he was going to be releasing new books about marijuana via his publishing company, Quick Trading. He said his defense team needs immediate, generous funding, and urged people to contribute to his defense by making donations to the www.green-aid.com website, earmarked for the Rosenthal defense.
“I appreciate the love and support people have given me,” he said, while supporters partied in the background. “I am not a victim or a martyr, but I am also not the kind of person who runs away in the face of evil. I am ideally suited to fight this government’s war on this plant. I do not intend to lose this battle. It’s a battle for the rights of all Americans who love marijuana, not just for me.”
Rosenthal’s ordeal has made the marijuana movement stronger and more unified. This is ironic, given that the grow expert had long been viewed as a talented but “divisive” movement iconoclast, a man who often criticized motives and tactics of marijuana advocates and advocacy organizations, including NORML, America’s oldest pot legalization lobbying group.
But NORML Executive Director Keith Stroup said that Rosenthal’s courage, and the way his case has played out in the mainstream press, has created a newfound appreciation of the man’s tenacity and idealism.
“We’ve had big disagreements with Ed over the years, as he has with us,” Stroup said. “But when something like this happens to someone, you realize that pot smokers have a lot more in common with each other than they do with those who would put us in jail for life. Ed could have chosen not to stand and fight, but he stood on principal, he never wavered, and now, he is the biggest medical marijuana news since Proposition 215 passed. He’s converted the mainstream media ? The New York Times, CNN ? who used to be hostile towards us, into reporting and editorializing on our side of the issue, and openly stating that the government is wrong.
“Ed used to come to our NORML meetings and insist on speaking publicly,” added Stroup, “but this year, we have already invited him to give a major speech on opening day. You just have to admire how he’s hung tough and taken on the government when he has so much to lose.”