Pubdate: Thu, 30 Jan 2003
Source: San Francisco Examiner (CA)
Copyright: 2003 San Francisco Examiner
Author: J.K. Dineen


In a surprising development, the federal judge presiding over the trial of 
medical marijuana guru Ed Rosenthal has decided to allow Alameda County 
Supervisor Nate Miley to testify on the pot advocate's behalf.

Miley, who became a supervisor in 2000, is expected to say that while a 
member of the Oakland City Council, he took a tour of the Mandela Parkway 
building Rosenthal allegedly used to grow marijuana. Miley is expected to 
testify that he worked closely with Rosenthal on the implementation of 
Proposition 215, which legalized medical marajuana in California.

Judge Charles Breyer at first said he would not allow Miley to take the 
stand, but changed his mind Wednesday after Assistant U.S. Attorney George 
Bevan suggested Rosenthal had tried to hide his marijuana crop.

Bevan said Rosenthal "did not publicize at all, outside of an inside group 
on the Oakland City Council, what he was doing."

"Mr. Rosenthal has even written a book on various ways to conceal the 
growing of marijuana from police. I've read it," said Bevan, referring to 
the book "Ask Ed's Marijuana Law: Don't Get Busted."

Bevan's comments, which took place after the jury had been dismissed for 
the day Wednesday, could be seen as a major opportunity for defense 
lawyers, who have been eager to introduce into the trial the idea that 
Rosenthal was openly growing marijuana in accordance with state medical 
marijuana laws.

Rosenthal had an Oakland business permit for the building and had discussed 
the facility with various city officials, including Miley and fire inspectors.

Breyer warned prosecutors that they would be opening a can of worms trying 
to prove that Rosenthal was running a clandestine operation "with a 
consciousness of guilt."

"You can't have it both ways, Mr. Bevan," said the bow-tied judge, whose 
brother is Supreme Court Justice Stephen Breyer. "If you're going to argue 
that Mr. Rosenthal took steps to conceal the activities, they would be 
entitled to bring in evidence that he did not do so."

Miley is one of many character witnesses the defense had hoped to call up. 
When defense attorney Robert V. Eye first said he hoped to call Miley to 
address Rosenthal's efforts to reform marijuana laws, Breyer lashed out at him.

"I don't doubt for a minute that Mr. Rosenthal believes strongly in that, 
but I don't believe it's a pertinent character trait," said Breyer. "You 
could be of good character and want to reform marijuana laws or you could 
be of bad character and want to reform marijuana laws."

But the judge's tone changed with Bevan's assertion that Rosenthal had 
acted surreptitiously.

"If what you are going to do is prove consciousness of guilt, I would allow 
them to rebut," he said.
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