Pubdate: Wed, 14 May 2003
Source: East Bay Express (CA)
Contact:  2003 New Times
Author: Chris Thompson
Bookmark: (Cannabis)
Bookmark: (Cannabis - Medicinal)
Bookmark: (Cannabis - California)
Bookmark: (Rosenthal, Ed)
Bookmark: Breyer (Breyer, Judge Charles)
Bookmark: (Oakland Cannabis Court Case)
Bookmark: (Hutchinson, Asa)
Bookmark: (Ashcroft, John)
Bookmark: (Bush, George)


How Not to Write a Law

The Case Of Ed Rosenthal Is As Schizophrenic As Prop. 215; But It's No More 
So Than Voters' Attitude About Pot.

Don't bogart those pot cases, Judge Breyer.

The choreography certainly was impressive. On the morning of February 12, 
2002, officers from the Drug Enforcement Administration simultaneously 
raided a San Francisco cannabis club called the Harm Reduction Center, the 
private homes of Bay Area medical pot activists, and a West Oakland 
warehouse where High Times columnist and author Ed Rosenthal grew hundreds 
of plants for critically ill patients. A few hours later, as Rosenthal 
stewed in a cell, Bush administration drug czar and longtime Clinton 
antagonist Asa Hutchinson strutted onto the stage at San Francisco's 
Commonwealth Club and compared the federal war against medicinal marijuana 
to a University of Arkansas Razorback game, in a speech titled "Let's Don't 
Punt on the Third Down." But he'd already made his point.

Eleven months later, Hutchinson was off chasing other headlines, but 
Rosenthal faced multiple drug and conspiracy felonies.

His lawyers planned to base their defense on his having been deputized by 
the City of Oakland to distribute pot. But Federal Judge Charles Breyer 
assiduously quashed all mention of Proposition 215 and medicinal marijuana, 
stripping the defense of its only argument.

After the jury found Rosenthal guilty, four jurors stood alongside the 
defendant at a press conference and declared that they'd never have 
convicted Rosenthal if they'd known who he really was. Nonetheless, he now 
faced a minimum of five years in a federal prison.

Then war approached, and reporters forgot about Rosenthal. But his lawyers 
toiled on, and while no one paid attention, attorneys Joe Elford and Bill 
Simpich made a spectacular claim in a brief they filed in federal court.

Not only had the trial jurors been manipulated into a conviction they now 
regretted, but federal prosecutor George Bevan had actually lied to the 
grand jury to get the indictment in the first place. "I'm more upset by the 
grand jury than by anything," Simpich says. "It makes the trial a joke."

Indeed, this whole affair has been one long comedy of errors. Although 
Judge Breyer has only released a small portion of the transcripts, what 
little has been made public indicates that at least one of the grand 
jurors, and possibly several, had profound reservations about indicting a 
man who just wanted to provide relief to people in pain. More importantly, 
this case reveals a mother lode of bad faith and moral ambiguity, and not 
just on the part of the prosecution. Everything associated with medicinal 
marijuana -- the activists and their lawyers, the prosecutors, even the law 
itself -- is tainted with hypocrisy.

Prosecutor Bevan tried to lure the grand jury into somnolence with 
assurances that the Ashcroft Justice Department isn't trying to wipe out 
medicinal marijuana everywhere it takes root. Rosenthal's lawyers 
overstated Bevan's bad faith and downplayed the quasi-criminal element in 
the medicinal pot movement. The activists themselves occupy a twilight zone 
of legitimacy, in which many players are both health-care activists and 
drug dealers. Proposition 215 is so terse and vaguely worded that legal 
scholars are still trying to figure out what's legal and what's not.

This melange of half-truths and contradictions all stems from the public's 
intellectual ambivalence about pot; we don't want to persecute people for 
getting high, but we aren't ready to accept it either. And until we make up 
our minds, we'll be doing this dance in perpetuity.

- --------

The grand jury was originally conceived as a bulwark against prosecutorial 
excess, in which citizens can examine the evidence, ask questions, and even 
argue with the prosecutor over whether a trial is justified. These days, 
it's a mere formality.

No judge or representative for the defense may attend the proceedings; the 
prosecutor is the only court officer on stage, and he can coax or 
manipulate the grand jury into, as the saying goes, "indicting a ham sandwich."

But the grand jury in Rosenthal's case didn't go without a fight. Because 
Bevan intended to call DEA agent Jon Pickette as a witness at Rosenthal's 
trial, he had to give the defense all previous legal documents pertaining 
to Pickette, including his grand jury testimony. Defense lawyer Bill 
Simpich claims that as he lay in bed reading the testimony, he sat bolt 
upright in shock.

Two weeks after the raids, Bevan had called Pickette before the grand jury 
and led him through the chain of evidence.

As he built his case, members of the jury contested not only his 
characterizations of Rosenthal and his colleagues, but the very legal 
foundation of the indictment he was asking them to return.

Just as juries throughout California have refused to convict medicinal 
marijuana distributors despite a preponderance of evidence, at least some 
of these men and women may have been inclined to ignore federal law and let 
Rosenthal go free.

Most of the arguments between the prosecutor and the grand jury involved 
the absurdly imprecise law that is Proposition 215. That initiative may 
allow people to possess medicinal marijuana, but whether it allows them to 
acquire it is another question, one still being hashed out in courts 
throughout the state.

As Bevan insisted that state law continues to prohibit people from 
obtaining marijuana, jurors wondered how exactly patients are supposed to 
use pot if they can't buy it.

When Bevan walked the grand jury through a description of Rosenthal's 
operation, one juror challenged the prosecutor's suggestions that Rosenthal 
and his colleagues were doing something shady -- perhaps prompted by prior 
testimony that Rosenthal has invited the fire department to inspect his 
warehouse. "These cannabis clubs are established to provide medicinal 
marijuana to people who get an okay from some public entity to go in and 
buy doses of marijuana," this juror said. "Where are these cannabis clubs 
supposed to acquire their inventory? Do these growers have to get a license?

They don't seem to be hiding anything. ..."

"Let me answer that question," Bevan said, "It's a good question.

The state law allows the Compassionate Use Act of 1996, sometimes known as 
Prop. 215 ..."

"Most of us probably voted for it," a juror reminded him.

"Whatever, that's good," Bevan said. "The fact of the matter is it allows 
marijuana for your personal use and to be cultivated, if you are the 
primary caregiver. ... A cannabis club does not have the authority under 
state law to distribute cannabis or marijuana.

And so then you say, well, there's a disconnect here."

Another juror spoke up soon thereafter. "If you don't want to grow your 
own, and your caregiver doesn't want to grow your own, and you have one of 
the four classifiable diseases to use it medicinally, what alternative do 
you have for getting that marijuana?"

"In answer to your question, there is no legal way under California law to 
acquire marijuana for your own personal use," Bevan said. "You are doing it 
basically at your own risk, and with the -- at least in the environment in 
this district, probably nothing would happen to you."

So you can have pot, but you can't obtain it -- except that you can, 
because no one really enforces pot laws in the Bay Area anymore. 
Ultimately, Bevan didn't really have to debate Proposition 215 with his 
jurors, since only federal law was at issue.

He did this in part to assuage the misgivings of grand jurors who clearly 
wanted to preserve patient access to medicinal pot and worried that if 
people couldn't get it from, as one juror put it, "the Rosenthals of the 
world," they would be condemned to unremitting pain and nausea.

The jurors continued to pick at the prosecutor's case. When Pickette 
described a "hidden door" to a secret grow room in the Harm Reduction 
Center's basement, only to admit that someone had just shoved a bookcase in 
front of the door, a juror remarked, "Very undramatic," and "not like Harry 
Potter." As Bevan suggested that Rosenthal's colleagues were involved in 
drug dealing for profit, a juror pointedly asked if it was true that 
Rosenthal was only interested in pot as medicine.

One juror asked whether this case was "blazing new ground" and establishing 
precedent for a new crackdown on medicinal marijuana. And when Bevan was 
walking the grand jury through the scale of addictive drugs, one juror 
asked where tobacco and alcohol fall on the spectrum.

Bevan answered, "I don't believe that tobacco and liquor is a 
drug-controlled substance as defined under 'controlled substance,'" 
prompting the forewoman to joke, "That's what the senators use."

Throughout the day, grand jurors expressed considerable skepticism about 
the prosecution's case. But they indicted anyway, perhaps with the 
expectation that Rosenthal would be able to present his side of the story 
at trial.

But that's exactly what didn't happen eleven months later.

- --------------

After reading the transcript, Rosenthal's attorneys filed a motion to 
dismiss Rosenthal's indictment. They claimed that Bevan, faced with a grand 
jury sympathetic to the defendant and worried about patient access to pot, 
repeatedly lied and misled the jurors in order to reassure them that 
medicinal marijuana would remain safe and easy to get. "When the grand jury 
persisted, the prosecutor misstated the law and, most troubling of all, 
informed it that the federal government would not target the cannabis clubs 
and that the sick and dying would continue to receive their medicine," they 
wrote. "The prosecutor assuaged the grand jury's expressed concern with an 
assurance he knew to be false" [italics theirs].

The heart of the defense's claim rests with one sentence by Bevan. As 
jurors began to express concerns about sick people barred from cannabis 
clubs, Bevan told them, "We have not sought to shut down the operations of 
the club." Rosenthal's lawyers argued otherwise: "The truth of the matter 
is that the federal government had sought to shut down the operations of at 
least six clubs through a civil injunctive relief action filed in this court.

More specifically, just days earlier, the government raided the Harm 
Reduction Center, stripped it of all its inventory and records, and 
padlocked the door. ... The prosecutor's false assurances to the grand jury 
on this point, calculated as they were to assuage their concerns for the 
sick and dying, constitutes the most flagrant and prejudicial misconduct of 

But was this really a lie? The prosecutor refused to comment for this 
story, and the brief he filed in response barely dwells on this allegation, 
beyond stating that "the prosecutor did not in any way distract or deceive 
the grand jury." But former Harm Reduction Center employee Bob Martin 
claims that the center was back open for business that very day. "When they 
raided the Harm Reduction Center, it opened two hours later," he. "It never 
was shut down." Other local pot activists backed up Martin's story, 
although they admit they didn't see it with their own eyes.

Rosenthal's attorneys hedged a bit when confronted with Martin's claims. 
Yes, the club was reopened, they concede, but not by the original owners.

Some "squatters" apparently snuck in and renamed the club the Healing Leaf. 
In other words, the club's doors may have been open, but the guys who 
signed the lease either sat in jail or fled the country.

And that, they say, constitutes an effort to shut down the club.

Martin plays another important role in this case. When the feds hit 
Rosenthal with the conspiracy charge, they needed someone who actually had 
seen him deliver marijuana plants to the club. They subpoenaed Martin, who 
sang like a bird and helped seal Rosenthal's fate. Consequently, many 
medicinal pot activists regard Martin as a snitch, though he says his 
testimony was coerced, and caused him much anguish. Last month, when the 
National Organization for the Reform of Marijuana Laws held its annual 
conference in San Francisco, Rosenthal allegedly had Martin thrown out of 
the event for his role in the prosecution, Simpich says.

But Martin got something very valuable out of the deal: immunity.

At the very moment he testified against Rosenthal, Martin was running his 
own cannabis club in San Francisco, handing out dope to the masses. He 
openly talked about plans to start two more clubs in the next few months -- 
the very acts for which Rosenthal faced years in prison. Prosecutor George 
Bevan not only granted Martin immunity in exchange for his testimony, he 
apparently did nothing to curtail his witness' ongoing illegal business.

But that's par for the course when it comes to medicinal marijuana. Nothing 
seems to make sense in the wake of Proposition 215; patients can own 
cannabis but not acquire it, one branch of government sanctions pot while 
another makes war on it, and one drug distributor goes to prison while 
another seemingly has the federal government's permission to operate in the 
open. And everyone knows that the medicinal marijuana campaign is at least 
40 percent bullshit, a convenient way for some people to get high while 
wrapping themselves in the moral cloak of medical necessity.

Perhaps the most absurd consequence of Proposition 215 is this: Far from 
reducing the criminality associated with the drug trade, the federal 
government's sporadic crackdown on medicinal marijuana actually plays into 
the hands of criminals.

 From Ed Rosenthal, to the Wo/Men's Alliance for Medical Marijuana in Santa 
Cruz, to the Los Angeles Cannabis Resource Center, the feds have targeted 
pot distributors that secured business licenses and had the blessings of 
local authorities. If the DEA continues to go after the honorable cannabis 
suppliers, the ones who work with city agencies and keep criminals out of 
the business, the field will be cleared of good-hearted citizens, and the 
vacuum filled by that old bogeyman of the drug war, the drug dealer.

Amid all these ambiguities, the only sure thing is that Ed Rosenthal will 
be sentenced to prison on June 4. None of the defense team's claims moved 
US District Judge Charles Breyer to throw out the indictment or grant a new 

Having diligently excluded all references to Proposition 215 during the 
trial, Breyer has earned the animosity of pot activists throughout the 
state, his centrist liberal credentials notwithstanding. As Rosenthal's 
lawyers prepare his appeal, they are all too aware of one last irony: 
Should this case go to the Supreme Court, Breyer's involvement virtually 
guarantees that they will lose. Rosenthal will need all five of the less 
dogmatically conservative justices, and one of them happens to be Stephen 
Breyer, the brother of Charles Breyer. Justice Breyer will surely recuse 
himself, and Rosenthal's fate could then be sealed by William Rehnquist, 
Antonin Scalia, Clarence Thomas, and Anthony Kennedy. Although their 
professed respect for states' rights ought to favor the defense, their 
instinctive antipathy to dopers like Rosenthal might as well make them the 
Four Horsemen of the Apocalypse.

Rosenthal doesn't find any of this particularly amusing.

A Bronx native and former Yippie, he's edgy and abrasive, the kind of 
hippie who, as Abbie Hoffman once said, "held his flower in a clenched 
fist." When it comes to unkind words, he's got plenty in reserve and deals 
them out to everyone arrayed against him, especially Charles Breyer. As he 
faces prison, it galls him that Breyer, a scion of the San Francisco 
Democratic Party establishment, gets to hobnob with his friends in the 
liberal intelligentsia while selling out his own professed values. "Look at 
his record on civil liberties; he's no darling liberal," Rosenthal growls. 
"He and his brother want to parade in San Francisco society as if they're 
part of it, but they're really part of the federal juggernaut and 
everything it's doing to restrict civil liberties."

Last week, the brothers Breyer assembled before the elite of San Francisco, 
basking in the admiration of Northern California's legal aristocracy. They 
had come to help out the San Francisco Historical Society, which charged 
$75 a head for the privilege of hearing the brothers in conversation on the 
nineteenth floor of the federal building. More than one hundred judges, 
lawyers, and clerks sat in the ceremonial courtroom, struck dumb by the 
easygoing majesty of Stephen Breyer and his younger, less cosmopolitan brother.

In true City Arts and Lectures fashion, the two Breyers sat before the 
audience in leather-backed chairs, trading quips beneath the seal of the 
United States of America.

Activists with Berkeley's Cannabis Action Network had planned to crash the 
party, but they were nowhere to be found as Charles Breyer, to the 
tittering delight of the crowd, asked his opening question: "Do you think 
mom loved me more than she loved you?" Stephen Breyer smoothed the wrinkles 
from his purple silk shirt and declaimed about the inner workings of the 
Supreme Court, while Charles, avuncular and folksy in his glasses and bow 
tie, pitched softballs to his brother. The scene was suffused with power 
and decorum, replete with reminders that at this level of authority, the 
real world upon which these two men have such a profound effect seldom need 
touch them at all. "Contrary to what you will read in the law books, I 
believe that we are much more like a European court, where you answer 
questions, rather than dealing with cases, than is commonly recognized," 
Stephen Breyer opined. "We really take cases to answer a legal question.

And if we cannot answer that single legal question, we shouldn't take the 
case." Stephen even offered some abstract misgivings about mandatory 
minimum sentences, the very kind that now hang over Rosenthal's head.

At the reception afterward, waiters glided by with trays of brie and wine, 
and federal marshals swept the room with their eyes. Older attorneys 
reminisced about the times they litigated with the Breyers' father, and 
young suits hung back, waiting to pay their respect.

I finally got my chance to ask Stephen Breyer a question: When you have to 
recuse yourself from a case presided over by your brother, does it ever 
worry you that doing so might change its destiny? "I'm a professional, so 
is he; we just go on the best we can," Breyer said and broke away in search 
of another hand to shake.

Charles was similarly evasive. "We don't sit around and talk about the 
Constitution," he said. "He has his job, and I have mine."

As the two Breyers move among their admirers, and John Ashcroft searches 
for yet another Rosenthal to persecute, Rosenthal awaits his fate in his 
Oakland warehouse.

At this moment, all the power and folly of the war on drugs, with its 
crusaders, villains, and victims, rests on the fulcrum of these two brothers.

Yet they're strangely ineffectual; Charles Breyer reportedly said he had no 
choice but to exclude Rosenthal's defense, and Stephen Breyer's expected 
recusal in any appeal to the Supreme Court, as well as an upcoming case 
involving the Oakland Cannabis Buyers Cooperative, places the fate of 
medical marijuana in the hands of his more conservative colleagues. That 
these two professed liberals should find themselves at the center of the 
Bush Administration's war on drugs, yet be utterly powerless to mitigate 
it, is the final absurdity of Proposition 215.
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