Pubdate: Wed, 11 Jun 2003 Source: Anderson Valley Advertiser (CA) Copyright: 2003 Anderson Valley Advertiser Contact: http://www.mapinc.org/media/2667 Author: Fred Gardner Bookmark: http://www.mapinc.org/people/Ed+Rosenthal ED ROSENTHAL'S APPEAL C-Notes The light sentence meted out by U.S. District Judge Charles Breyer June 4 - -time served, one day-represents a personal victory for Ed Rosenthal and his family and friends. There was a legal victory, too: publicity around the case has notified prospective jurors in California that they are ideally suited to monkey-wrench the drug-war machine. Rosenthal's attorney Dennis Riordan has already notified the 9th U.S. District Court of Appeals that he will challenge the conviction. Riordan's specialty is reviewing trial records for reversible errors. (It was Riordan who got Marjorie Knoller's sentence reduced from murder to manslaughter in San Francisco's infamous "dog-mauling" case.) He thinks he found some significant errors in Judge Breyer's handling of the Rosenthal case. For openers: Breyer should have allowed the jury to hear that Rosenthal - -who had been authorized to grow marijuana under a program created by an Oakland city ordinance-thought he was acting legally. "If the jury got to hear that," Riordan said in a post-sentencing interview, "they could have decided Ed was acting in good faith and acquitted him. He was denied the right to present a mental-state defense to the jury." Riordan is also challenging Breyer's ruling that the Oakland cannabis-distribution program is invalid under federal law. The program relies on the same section of the federal Controlled Substances Act, 885(d), that entitles undercover police officers to obtain, handle, and sell illicit drugs. Section 885(d) states that "no civil or criminal liability shall be imposed" on any state or local "authorized officer...who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances." After Prop 215 passed, Oakland lawyer Robert Raich proposed that the wording of 885(d) could apply to city-appointed officers engaged in obtaining, handling, and selling cannabis. The Oakland city attorney agreed, and Jeff Jones, director of the Oakland Cannabis Buyers Co-op, was deputized to make the herb available to patients qualified to use it under California law. Jones subsequently assigned Rosenthal to grow clones -starter plants of known sex and quality-for distribution to such patients. At preliminary hearings in the Rosenthal case several Oakland officials, including an assistant city attorney, testified that they believed their cannabis distribution program was legal under 885(d) -but Breyer disallowed that whole line of argument. He cited his own ruling in a previous case involving Jeff Jones and the Oakland CBC: it would violate the basic prohibitionist purpose of the Controlled Substances Act to interpret 885(d) as protection for cannabis providers. Breyer repeatedly described his interpretation as "the common-sense reading of the statute." But the Raich/Oakland reading is the literal one, and statutes are supposed to mean what they say. "I think we have an extremely good chance of being vindicated on appeal," said Riordan. During those pre-trial hearings in January, Judge Breyer had expressed skepticism that Ed Rosenthal was unaware of his previous ruling that the Oakland cannabis-distribution program was illegal under federal law. But on Tuesday, June 4 -influenced perhaps by editorials in the San Francisco Chronicle and the New York Times- Breyer gave Ed the benefit of the doubt. He based his lenient sentence on Ed's "reasonable belief" that he had been properly authorized to cultivate by the city of Oakland. If the 9th Circuit eventually rules that 885(d) does indeed apply to city or state-ordained cannabis operations, it would be like driving a tank through the Berlin wall of prohibition. Cities from Arcata to San Diego would start grow-ops. Attorney General Ashcroft would undoubtedly appeal to the U.S. Supreme Court. Congress might have to reword the Controlled Substances Act, and in the process, marijuana's status as a Schedule-1 drug - - dangerous, with no medical utility-would be debated... Things could get interesting. Rosenthal's appeal brief will also challenge the propriety of Assistant U.S. Attorney George Bevan's dialog with the grand jury that produced the initial indictment. Unlike the jurors who heard the case in January '03, the grand jurors were aware that Rosenthal was growing for Bay Area cannabis clubs. The defense charges that Bevan misled the grand jurors by seeking to allay any fears that indicting Rosenthal would cut off the supply of cannabis to Californians entitled to use it medicinally, Another issue to be raised on appeal involves Breyer's ruling that the conduct of jurors Marney Craig and Pam Klarkowski did not constitute grounds for dismissal. Craig had asked a lawyer of her acquaintance whether she could vote her conscience if it clashed with the judge's instructions. The lawyer/friend's answer had been an unequivocal, "No. You must obey the judge." Craig relayed this fact to Klarkowski as they drove to court on the morning deliberations were to begin. Under the relevant federal rule of evidence, 606 (b), the improper influencing of jurors during the course of a trial can be grounds for dismissal. The 9th circuit typically takes a year to a year and a half to rule on appeals such as Rosenthal's. Their ruling on the applicability of 885(d) in the Oakland CBC case will probably precede a decision re Rosenthal, but appeals move faster in criminal than in civil cases. Riordan expects the prosecution to appeal Breyer's "downward departure" from a mandatory-minimum sentence of six-and-a-half years. The issue would be whether Rosenthal's status as an employer at the grow-op disqualified him from receiving any leniency. On this question Riordan does not expect Breyer to get reversed. SECOND ITEM Ed Enters the Spin Cycle Pronouncements on the meaning of Ed Rosenthal's light sentence soon emanated from our leaders within the Beltway. "'It sends a very strong message to the Bush administration that they had better focus their law enforcement resources on serious and violent crime, especially terrorism," said Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws, to Bob Egelko of the S.F. Chronicle. The longtime director of NORML should know that just as there's no such thing as a war on drugs -it's a war on certain people who use certain drugs-there's no such thing as a war on terrorism. Terrorism is a tactic to which people who are desperate to the point of madness may turn. Additional "law enforcement resources" are never going to solve the socioeconomic problems that give rise to terrorism. Next time you're giving advice to law enforcement, Keith, tell them to go after the white-collar criminals who cost us our savings and are about to take away our social security. "The Bush administration's prosecution of Ed Rosenthal was a political act masquerading as federal law enforcement," said Ethan Nadelmann, executive director of the Drug Policy Alliance, to Hil Anderson of UPI. "Judge Breyer's decision today sends a powerful message that the criminal justice system cannot be used to pursue crass and inhumane ideological ends." It is hard to imagine prosecutors from Ashcroft on down revising their charging decisions because a federal judge in gay San Francisco gave well-connected Ed Rosenthal a slap on the wrist. By describing a given event in terms of its "message," the commentator untethers himself from what actually was said, or written, or done, and is free to blither away. In a courtroom in San Francisco on June 4 Judge Charles Breyer described the Rosenthal case as unique and emphasized that, given how highly publicized it had been, future defendants could not claim they thought a city ordinance entitled them to grow marijuana. Breyer was sending a clear message that next time he takes his wife to lunch at Lulu's, he expects the usual glances of admiration, not disapproving glares. The word "signal" can be substituted for "message." Stroup was quoted on the BBC news, "It sends a strong signal to the federal government that they should reconsider their current program of arresting patients and caregivers in California." One of the Chronicle's resident righties, Deborah Saunders, wrote that "Breyer sent the dangerous signal that if you don't like a law, you don't have to obey it." In Saunders' version of the case, Ed had defied the law; in reality he claimed to be operating under its protection. "Call me old-fashioned," wrote Saunders, "but I remember when those who engaged in civil disobedience expected to be punished and accepted it." Nobody calls you old-fashioned, Deborah; what we call you is "off." Josh Richman of the Oakland Tribune seemed confused by a doubly incorrect line of Stroup's. "Breyer 'has made a distinction between someone growing marijuana for medical purposes and somebody growing marijuana as a drug dealer,' Stroup said, denoting 'a slap in the face to the Bush administration and its head-in-the-sand position that marijuana has no medical use.'" How can you slap somebody in the face when they've got their head in the sand? Richman then quoted Bruce Mirken, communications director for the Marijuana Policy Project, saying, "For all practical purposes, what Judge Breyer did today was overturn the federal law banning medical marijuana." How's that? As if to explain, Mirken added, "The whole reason Ed Rosenthal was prosecuted is that federal law doesn't recognize anything extraordinary or even any difference between seriously ill people and their caregivers, and common drug dealers." Do Keith Stroup and Bruce Mirken really think that the "common" marijuana dealer is more deserving of jail time than the high-falutin' California caregiver? If so, shame on them. If not, shame on them for pandering to a mythically respectable mainstream. Ed Rosenthal, in whose support they were ostensibly speaking, had just gotten through telling his supporters outside the courtroom, "The federal government makes no distinction between medical and recreational marijuana -and they're right!" Egelko also quoted Robert Kampia, executive director of the MPP, who "said Rosenthal's case 'will be seen as the tipping point, the moment when it became obvious the law had to change.'" "The tipping point" is the phrase that Ed himself has frequently employed to describe the significance of his case. It's the title of a book by Malcolm Gladwell, a fashionable New York science writer whose specialty is regurgitating press releases from pharmaceutical manufacturers. Gladwell took Frederick Engels' observation that at a certain point, quantitative changes result in qualitative changes, and repackaged it all the way to the bank. The New York Times story on the Rosenthal sentencing reflected a basic misunderstanding of the case. Dean Murphy wrote, "Though the Oakland ordinance is permitted under a 1996 California state proposition, there is no provision for growing marijuana under federal drug laws." But Rosenthal's 885(d) defense -which will now be weighed by the appeals court- asserts there was and is a provision for growing marijuana under federal law, right within the Controlled Substances Act itself. Although the working reporter has to ride the rap, blame should reside with the editorial decision-makers. The medical marijuana movement is a complex story, with inter-related legal, political, and scientific aspects. The Times long ago should have assigned reporters to it as a regular beat, instead of forcing them to educate themselves in a day. Murphy should have been assigned to report the Rosenthal trial in its entirety, not just to weigh in at the beginning and the end. The system itself encourages superficial understanding and reporting. It forces the journalist to take the packet from the p.r. person and to hurriedly call a couple of "experts" whose phone numbers and e-mail addresses are conveniently provided therein (not forgetting to contact at least one spokesman from the "other side" for the sake of "balance")... Meanwhile, inside the Beltway, the experts have got their pontifications packed into soundbites and ready to launch... P.S. We are trying to verify a rumor that back in January reporter Jayson Blair convinced two top New York Times editors that Ed is the estranged nephew of retired executive editor A.M. Rosenthal -hence the favorable coverage. - --- MAP posted-by: Jay Bergstrom