HTTP/1.0 200 OK Content-Type: text/html Pot Guru Asks Court To Overturn Conviction
Pubdate: Tue, 13 Sep 2005
Source: San Francisco Chronicle (CA)
Copyright: 2005 Hearst Communications Inc.
Author: Jim Herron Zamora, staff writer
Bookmark: (Cannabis - Medicinal)
Bookmark: (Cannabis - California)


Attorneys for Oakland pot advocate Ed Rosenthal asked a panel of
federal judges today to overturn his 2003 conviction for growing
medical marijuana, while the prosecutors sought to have his one-day
prison sentence thrown out because they thought it wasn't long enough.

Rosenthal, 60, was arrested in 2002 for growing marijuana for the Harm
Reduction Center, a San Francisco dispensary for medical patients.
Rosenthal, who is well-known for his "Ask Ed" advice column for
cannabis growers, was convicted a year later on federal cultivation
and conspiracy charges.

But in his trial U.S. District Judge Charles Breyer forbid Rosenthal
and his attorney from mentioning that he was growing cannabis for
medical users. Breyer ruled that since medical use is not allowed
under federal law that evidence was irrelevant to his guilt or innocence.

Breyer then imposed the lightest possible sentence -- one day -- which
Rosenthal had already served the night of his arrest, saying that
"extraordinary, unique circumstances of this case" justified an
exemption from the usual five-year minimum term and federal sentencing
guidelines. Breyer concluded Rosenthal had "reasonably" but
erroneously believed that he was acting legally because of his support
from local officials.

Nine of 12 of the jurors who voted to convict Rosenthal have since
disavowed their guilty verdict after learning that Rosenthal was
growing medical marijuana.

Attorneys Dennis Riordan and Joe Elford argued Tuesday that Breyer
should have allowed Rosenthal to present a defense that he grew the
marijuana solely for medical use with the permission of Oakland city
officials, who were acting within the parameters of the state's
medical marijuana law.

"It's an affirmative defense based on the conclusion that somebody was
reasonably misled by public officials," Riordan said. "He had a Sixth
Amendment right to present that defense to a jury."

They also argued that Breyer improperly restricted the jury's options
by urging jurors to follow the law and not bring their own "sense of
justice" into their deliberations.

Rosenthal said his actions were authorized by California's medical
marijuana law and also said he had been deputized by the city of
Oakland to supply marijuana to a city-endorsed patient

Supporters of medical marijuana see the case as perhaps the most
important court battle for their movement since the U.S. Supreme Court
ruled in June that the federal government has the authority to
prosecute medical cannabis growers who act under the auspices of
California's medical marijuana law. That case also involved an Oakland
resident, brain cancer patient Angel Raich.

Riordan told the thee-judge panel that Rosenthal was denied a fair
trial because he could not introduce that defense. Rosenthal's appeal
also claims that he was not allowed to rebut the government's charges
that he cultivated cannabis for profit.

Meanwhile, assistant U.S. Attorney Amber Rosen argued that Rosenthal's
conviction should remain in place, but that Breyer should have
sentenced Rosenthal from two to five years in prison under federal
guidelines. Rosen said the one-day sentence "was an abuse of judicial

Judge Marsha Berzon interrupted Rosen's argument noting that under a
2003 U.S. Supreme Court decision, the guidelines were not mandatory.

But Rosen insisted that the one-day sentence was not reasonable in
light of the crime. Congress intended that large-scale cultivation
should be treated as a serious offense, she said.

Rosen said Breyer followed the law correctly by excluding medicinal
claims. In addition to arguing that Rosenthal's medicinal marijuana
defense was unfairly excluded, his attorneys said the conviction
should be overturned for several other reasons. They claimed that
federal prosecutors falsely told the grand jury that law enforcement
agencies were not targeting medical marijuana clubs.

They also alleged that two jurors committed misconduct by voting to
convict Rosenthal after receiving advice from a lawyer friend who said
they could get in trouble if they ignored the judge's instructions.
Jurors are not supposed to discuss a case with anyone but other jurors
until after a verdict is reached.

Rosen acknowledged that the outside advice was inappropriate but may
not have swayed the jurors' decision to convict. The friend merely
told the juror that "you need to follow the court's instructions" and
that is not enough reason to overturn a conviction, she said.

Berzon, Judge Betty Fletcher and Judge John Gibson took the case under
submission and gave no indication how soon they would rule.

Rosenthal said outside court that he was more than happy to risk
possible prison time if a new trial is ordered and he is convicted. It
is more important to keep fighting to clear his name and support the
cause of "sick and dying people who need marijuana," he said.
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