In February 2002, a federal posse led by the head of the Drug Enforcement Administration (DEA) stormed into San Francisco and Oakland, California, leaving arrests and mayhem in its wake.
When the dust settled, several people involved in Bay Area med-pot clubs were in custody or on the lam. One of those in custody, arrested nude at dawn at his home in Oakland, was Cannabis Culture grow guru Ed Rosenthal (CC#37, DEA attacks med-pot and hemp).
The long-time horticulture expert and marijuana activist was held by the feds, accused of growing pot and being involved in a “conspiracy” to distribute it.
He got out on bail and vowed to fight the charges rather than run from them. Nearly a year later, in January 2002, Rosenthal was on trial in the federal courtroom of Judge Charles Breyer, brother of a US Supreme Court Justice, who was determined not to let anybody tell the trial jurors about California’s med-pot law, Proposition 215 (CC#43, Ed Rosenthal found guilty).
Rosenthal claimed all along, with evidence to back him up, that he had official approval for his grow op from the City of Oakland, and that he was protected by Prop 215.
Breyer tried his hardest to prevent jurors who knew about Prop 215 from getting on the jury, and then was generally successful in preventing jurors from knowing that Rosenthal believed his grow ops were 215-legal.
The trial and the lead up to it were dramatic and full of controversy, replete with traitorous narks, protesters wearing duct tape on their mouths, “Free Ed” billboards, and the judge’s threat to punish Rosenthal for speaking to the press.
Jurors had no choice but to find Rosenthal guilty of three marijuana cultivation and conspiracy felonies. He faced 100 years in federal prison and three million dollars in fines.
Some observers figured Rosenthal would flee the country or self-destruct in a paroxysm of rage.
He did neither. Bolstered by the support of his wife and family, along with hundreds of marijuana advocates and friends, Rosenthal fought back.
His cause was greatly aided by a juror revolt that took place after the verdicts were handed in.
When jurors found they had been prevented from knowing the Prop 215 context of Rosenthal’s “crimes,” they held public press conferences denouncing the judge and renouncing their guilty verdict. Some jurors said that they had violated the judge’s instructions during the trial by discussing the case with outsiders.
Rosenthal’s attorneys pressed for the verdict to be overturned, and the grow guru and his family became a cause celebre in the mainstream media, earning phenomenally favorable coverage in the New York Times, and on CNN, NPR, ABC and many other national news networks.
But still the day of reckoning ? the June 4 sentencing hearing ? drew near. California Attorney General Bill Lockyer joined hundreds of others who asked Breyer not to sentence Rosenthal to prison.
The federal probation department wanted Rosenthal in prison for 21 months; the federal prosecutor wanted him in for at least five years.
A few days before the sentencing date, Rosenthal held a “last supper” with a gathering of media moguls, celebrities, authors, marijuana movement icons, and businesspeople.
“I’m not scared of what he’s going to do to me,” Rosenthal said. “If they send me to prison, I won’t be there for long before the verdict is overturned on appeal. No matter what, these laws are doomed. This case is the tipping point. We’ve shown America that the face of marijuana is a 58-year-old family man with a son in law school and a daughter who cares about her community and the world. Millions of Americans looked at me and my family, and they said, ?Oh, this doesn’t look like a criminal to me. What in God’s name is the government doing to him, and why?'”
The night before the sentencing, Rosenthal wondered if he would be led away in shackles, freed on appeal bail, or set free. He was upbeat and making jokes, discussing upcoming book projects and marijuana nutrients.
If Rosenthal’s case had been worked by a Vegas bookie, the odds would have been that the guru was going to jail. After all, he had publicly vilified the judge and prosecutor, as well as the federal government.
He was “Ask Ed,” the guy whose books and grow advice column have helped millions of people to grow an illegal plant. He had not even hinted that he believed he had committed a crime.
The scene inside and outside the federal courtroom in San Francisco on June 4 was worthy of a movie. Hundreds of Rosenthal supporters sang songs and held protest signs. Breyer looked around at the throng and at the media coverage and might have wished he had never been appointed as a federal judge.
And then, Breyer said he believed Rosenthal might have reasonably believed that it was not illegal to grow med-pot.
This, Breyer said, along with other extraordinary facets of the situation, allowed him to skirt the normal mandatory minimum sentences.
Rosenthal was sentenced to one day in prison (which he had already served), and a $1000 fine.
The grow professor’s supporters reacted with pleasure and shock upon hearing the sentence, but the man himself was not feeling particularly grateful.
“The judge didn’t do me any favors,” Rosenthal said. “He made me a felon. He gagged the courtroom so that the jury had no idea of the truth. He asserts that his rulings are now precedent in other California medical marijuana cases, and that he has now ruled out all others who want to use Prop 215 as a defense. I don’t think I have anything to thank the judge for. He is part of a corrupt system that did great wrong to me and my family, and is doing great wrong to thousands of other people.”
Rosenthal admitted he was glad not to be in prison, but he saw the judge’s “apparent compassion” as a game of political chess.
“He knows that if he sends me to prison then I can be very effective as a martyr and media presence,” Rosenthal explained. “He didn’t want to see me on the nightly news anymore, talking about the hundreds of thousands of people arrested for marijuana every year, or about the constitutional violations engendered by the fed’s war on states that have legalized medical pot. He just hopes I will smile about not being locked up, and disappear. I won’t.”
Indeed not. Rosenthal and his legal team have vowed to appeal the conviction based on constitutional violations, jury tampering, and alleged prosecutorial and judicial misconduct.
Rosenthal isn’t the only one launching an appeal. In July, federal prosecutors announced that they were going to appeal the judge’s sentence, and ask that Rosenthal serve six to 10 years in prison.
While the noted author, publisher, writer and activist had just walked out of a California courtroom, he was soon to walk in to an Arizona courtroom where he says he has just gotten legal “standing” to examine 30 years of accounting and estate trust records relating to High Times magazine, for which he used to work.
“People tell me I ought to take what happened as a warning, that I ought to give up on what I believe and lay low,” Rosenthal said. “I see it just the opposite. What happens to me shows that if you are up front about what you do, and if you fight the government and corruption when you are right, that you can win. I will not rest until medical and recreational marijuana are totally legal.”