Pubdate: Tue, 04 Feb 2003
Source: San Francisco Examiner (CA)
Copyright: 2003 San Francisco Examiner
Author: J.K. Dineen, Of The Examiner Staff
Related: please visit


Questions surrounding the controversial conviction of medical pot
advocate Ed Rosenthal continued to swirl Monday as jury members
expressed outrage over how the trial was conducted and a prominent
legal scholar said the case belongs before the U.S. Supreme Court.

Harvard Law School professor Alan Dershowitz called the Rosenthal case
"a great issue for the Supreme Court" and predicted the justices would
overrule federal Judge Charles Breyer, whose brother is U.S. Supreme
Court Justice Stephen Breyer.

"I suspect Charlie's older brother will overrule him," said
Dershowitz, who worked on O.J. Simpson's defense team.

Rosenthal, the author of numerous books about the virtues of
marijuana, admitted to growing the plants for distribution under
California's medicinal marijuana law, known as Proposition 215, which
was passed by voters as an initiative in 1996.

While Rosenthal had been deputized by Oakland city officials to grow
medical pot, Judge Charles Breyer banned testimony related to state
medical marijuana laws because federal law forbids cultivation of the

Dershowitz argued that Breyer should have allowed the issue of medical
marijuana into the testimony.

"When there's a conflict between federal and state law in a criminal
case, the jury ought to know about it," said Dershowitz.

Dershowitz said the conservative-leaning Supreme Court has tended to
side with states rights in recent years, which could be good news for

He cited a case involving the possession of a handgun near a Texas
school, which is illegal under federal law, but allowed under Texas

The court sided with Texas law, saying the regulation of schools is a
state issue rather than a federal issue.

"Here we're talking about healthcare, which is very much a state
issue, too," said Dershowitz.

Meanwhile, five or six jurors are expected to speak out today after
Rosenthal's custody hearing, at which the judge will determine whether
Rosenthal remains in prison until his sentencing, scheduled for June.

Juror Marney Craig called the trial "the most horrible experience I've
ever been through."

"It's the biggest mistake I've made in my life and a lot of jurors
feel the same way," she said. "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? This man was not a criminal."

Craig said she had not heard of "jury nullification" where jurors
basically ignore the judge's instructions and do what they want.

"Jury nullification -- that was a possibility nobody knew about," she

But Golden Gate Law School Dean Peter Keane said there's little the
jury can do now.

"They had their chance, they had the power to nullify," said Keane.
"Once they rendered the verdict, they were too late."

Keane defended Breyer's decision to ban the discussion of state
marijuana laws from the federal courtroom.

"He would have been violating his oath if he had (allowed it)," Keane
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