Pubdate: Sat, 12 May 2007
Source: Daily Review, The (Hayward, CA)
Copyright: 2007 ANG Newspapers
Author: Josh Richman


Rosenthal Has Already Served His Prison Sentence, Faces  Retrial

SAN FRANCISCO -- Denying a slew of defense motions, a  federal judge
set the stage Thursday for the  marijuana-cultivation retrial of
Oakland's "Guru of  Ganja" Ed Rosenthal to begin next week.

Jurors will be selected Monday and opening statements  will be given
Tuesday, launching a trial lasting three  to four weeks, U.S. District
Judge Charles Breyer said.

Attorneys for Rosenthal and Assistant U.S. Attorney  George Bevan
sparred before Breyer for about two hours  Thursday as each side
argued for inclusion or exclusion  of certain evidence.

When the dust cleared, Breyer had denied Rosenthal's  motion to
dismiss the case, noting the 9th U.S. Circuit  Court of Appeals had
remanded it to him for retrial and  that's what he intends to provide.

And just as he had at Rosenthal's first trial, the  judge again denied
Rosenthal's motions to introduce  evidence and testimony showing he'd
grown marijuana for  medical use with the city of Oakland's knowledge
and  blessing.

Famed for his marijuana cultivation books and the "Ask  Ed" column he
wrote for High Times magazine,  Rosenthal's 2003 conviction of three
marijuana-growing  felonies came more than a year after federal agents
  raided his Oakland home, an Oakland warehouse in which  he was
growing marijuana and a San Francisco medical  marijuana club he supplied.

Medical marijuana use on a doctor's recommendation is  legal under
state law but prohibited by federal law, so  Rosenthal was barred from
mounting a medical defense at trial. Breyer sentenced him to one day
behind bars -- time he'd already served.

The 9th U.S. Circuit Court of Appeals overturned his  convictions in
April 2006, finding juror misconduct --  a juror's conversation with
an attorney-friend during  deliberations -- compromised Rosenthal's
right to a  fair verdict and so warranted a new trial. But the  court
also rejected Rosenthal's claim of immunity from  prosecution as an
officer of Oakland who grew the drug  under the city's medical
marijuana ordinance.

Prosecutors re-indicted Rosenthal in October, adding  charges that
he'd laundered marijuana proceeds by  buying four money orders totaling

$1,854, and that he'd falsified tax returns for 1999,  2000 and 2001
by omitting income from his marijuana  distribution. But Breyer in
March tossed out those new  charges, deeming them to be vindictive

The government already has said it won't seek more than  the one-day
jail sentence Rosenthal served for his  original conviction should he
be convicted anew. Breyer  has made it abundantly clear he'd like to
see the case  go away, suggesting the government should weigh whether
its time and energy -- as well as his own -- is best  spent on
re-trying a man who already has served his  sentence. Prosecutors
chose to proceed anyway.

But if Breyer seemed testy with anyone Thursday, it was  the defense.
When attorney Shari Greenberger said she  was "inclined" to withdraw
part of a motion regarding  evidence seized at the marijuana warehouse
on Mandela  Parkway, Breyer snapped, "This is not an encounter
session" and urged the defense attorneys to make a  decision.

Breyer rejected the defense's call for a hearing on  whether the
federal ban on marijuana is scientifically  and medically appropriate,
saying he doesn't have  jurisdiction to do so. When the attorneys
tried to  argue it was a novel issue in a case like this, Breyer
replied, "Listen, I'm a child of the '60s. ... This is  not new to
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