(This article was written and published just before news came out of Rosenthal's conviction.)
The fate of Ed Rosenthal is in the fate of 12 jurors today after both the defense and the prosecution rested their cases Thursday. Rosenthal, the author of numerous "how-to" books on marijuana cultivation, faces a mandatory minimum 10-year prison sentence on federal marijuana cultivation and conspiracy charges arising from a February DEA raid on San Francisco's 6th Street Harm Reduction Center and associated properties in the Bay Area.
Rulings before and during the trial by presiding US District Court Judge Charles Breyer prevented Rosenthal and his lawyers from presenting the defense that his activities were legal under California law and done in cooperation with local authorities in Oakland.
Judge Breyer's intense interest in blocking the jury from hearing anything about legal medical marijuana in California -- a key concern of his ever since jury selection in this trial began three weeks ago -- was on display again Thursday, when he took the unusual step of taking over defense counsel's examination of a friendly witness in order to prevent the possible leakage of information about medical marijuana to the jurors. The witness, Alameda County (Oakland) Supervisor Nathan Miley, was allowed to testify as to whether Rosenthal was attempting to hide his medical marijuana cultivation after prosecutors had opened the door to such testimony by suggesting that Rosenthal had attempted to hide his operation and implying such acts constituted proof of criminality.
Rosenthal "did not publicize at all, outside of an inside group on the Oakland City Council, what he was doing," argued Assistant US Attorney George Bevan. "Mr. Rosenthal has even written a book on various ways to conceal the growing of marijuana from police. I've read it," said Bevan, referring to the book "Ask Ed's Marijuana Law: Don't Get Busted."
That was enough for defense attorney to argue and for Breyer to agree that Miley could testify as to whether Rosenthal was behaving in a clandestine manner and that he could testify as to the relationship between Rosenthal and the Oakland City Council, which worked with Rosenthal to ensure a legal medical marijuana operation. Still, Breyer sent the jury out and asked the defense for a proffer, or a description of Miley's proposed testimony. Breyer then redacted the proffer, striking any testimony that might mention legal medical marijuana, and brought the jury back in. But when defense attorney Bill Simpich attempted to question Miley, Breyer objected that it could lead to too revealing an answer from the witness. Breyer eventually took the proffer testimony and examined the witness himself.
"Remarkable," said courtroom spectator and California NORML (http://www.canorml.org) head Dale Gieringer. "I've never seen anything like it. It's a real kangaroo court."
Rosenthal's attorneys had prepared a group of character witnesses to testify to his long-standing interest in medical marijuana and marijuana law reform, but Breyer refused to allow their testimony. They included Keith Stroup, executive director of national NORML; Fred Gardner, formerly of the San Francisco District Attorney's office, who was to testify about the city sanctioning of marijuana dispensaries and Rosenthal's involvement in it; and Dr. Michael Alcalay, MD, the medical director of the Oakland Cannabis Buyers Collective, who was to testify about Rosenthal's commitment to family life and family values.
With the prosecution having presented a standard marijuana cultivation case and the defense limited to nibbling at the edges of that case, defense attorneys were left reaching for straws during final arguments. But they did their best, with attorney Robert Eye zeroing in on "irreconcilable inconsistencies" in the prosecution case and hammering at DEA credibility. He also told the jury to examine the demeanor of the DEA agents. "We are asking you to take sides," said Eye, "and these people don't even seem to believe in their jobs."
Before the jurors retreated to deliberate, Breyer repeatedly instructed them to ignore any concerns about medical marijuana. "You cannot substitute your sense of justice for your duty to follow the law," Breyer warned. "The issue is not what's just, but what's the law."
Rosenthal supporters hope at least one juror will follow his or her sense of justice instead of Breyer's instructions. "Given Breyer's rulings in this case, it'll be a miracle if Ed gets off," said Gieringer. "Still, I think the jury knows they were not told the whole truth, and it's possible there are some people who resent they way they were manipulated. If that's the case, we could see a hung jury."
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