Pubdate: Sun,  9 Feb 2003
Source: Newsday (NY)
Copyright: 2003 Newsday Inc.
Author:  Thomas D. Elias, Special Correspondent


San Francisco - Ed Rosenthal, known as the "guru of ganja," will go to
prison later this year for growing marijuana for medical use, although
he was authorized to do so by the city of Oakland, unless an appeals
court intervenes. But some medipot supporters say his conviction last
week is already giving their cause a major boost.

Publicity about the case, in which several jurors later apologized to
Rosenthal for their verdict, "has done more for medical marijuana and
jury nullification than all our efforts of the past 10 years," said
Steven Kubby, founder of the American Medical Marijuana Association,
who says marijuana is the only reason he is alive 26 years after being
diagnosed with a rare form of adrenal cancer.

The case pits California's Proposition 215, which voters passed in
1996 to allow the use of marijuana for medical purposes with a
doctor's permission, against the U.S. Justice Department. The federal
government does not recognize Proposition 215 and has prosecuted more
than a dozen medical marijuana users and growers under federal drug

An estimated 400 medipot users, most from California, have taken
refuge in Canada in the past year because of that nation's recently
adopted rules sanctioning medical use of pot.

Six of the 12 jurors in Rosenthal's case have joined him in calling
for a new trial, saying they convicted him Monday only because crucial
information about Proposition 215 had been withheld from them.

"For the first time in my life, I find myself questioning the court
system," jury foreman Charles Sackett III said last week at a rally
here on Rosenthal's behalf.

Judge Charles Breyer refused to allow testimony showing that Rosenthal
was growing pot under supervision of Oakland city officials for use by
severely ill patients in compliance with both state law and local ordinances.

When one witness mentioned Proposition 215, Breyer cut him off and
took over the questioning. He ruled repeatedly that because Rosenthal
was on trial under federal charges, the only relevant question was
whether he grew marijuana plants or not. His motives, the judge said,
could not be considered.

Rosenthal, a columnist for the marijuana lovers' magazine High Times
who has also written books about how to grow pot discreetly, faces a
prison term of between 5 years and 85 years when he is sentenced in

Legal scholar Alan Dershowitz of Harvard Law School said he doesn't
believe Rosenthal's conviction will stand up on appeal.

"I suspect Charlie's older brother [U.S. Supreme Court Justice Stephen
Breyer] will overrule him," Dershowitz told the San Francisco
Examiner. "When there's a conflict between federal and state law in a
criminal case, the jury ought to know about it."

He cited a Texas case involving possession of a handgun near a school,
legal under Texas law but prohibited by federal law. The Supreme Court
sided with the Texas law in that case, ruling that regulation of
schools is a state issue.

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

Just one day after the Rosenthal trial ended, San Diego became the
15th California city to set standards for how much pot medical
marijuana patients are allowed to possess - one pound - without fear
of state or local prosecution.

But neither San Diego nor any other city provides an official system
for growing or distribution, and Drug Enforcement Administration
spokesman Richard Meyer said that any officials who set up such a
system would be subject to arrest by federal agents.

Many city police chiefs, county sheriffs and district attorneys,
including those in San Francisco and San Jose and in the pot-growing
"Emerald Triangle" counties of Mendocino and Humboldt on California's
north coast, refuse to cooperate with federal agents seeking to arrest
medipot patients.
- ---
MAP posted-by: Richard Lake