The federal trial of pot grow expert Ed Rosenthal on marijuana cultivation and conspiracy charges got underway in San Francisco this week. Rosenthal was among those arrested in a series of DEA raids on San Francisco's 6th St. Harm Reduction Center and associated locations in February as part of the federal government's attempt to suppress state-sanctioned medical marijuana in California. He faces a mandatory minimum 10-year sentence on the conspiracy charges, a mandatory five years on the cultivation count, and up to 20 years on a count of operating a place to grow marijuana.
The prosecution will begin presenting its case next week. This week was taken up with motions and an unusually lengthy jury selection process that revealed a strong and broad hostility to federal intervention in the state's widely popular medical marijuana laws. One defense attorney told Rosenthal supporters he had never seen so many jurors excused by the judge, even in emotional small-town murder trials.
Federal Judge Charles Breyer began the week with a blow for the defense, ruling in favor of a prosecutors' motion to exclude all discussion of medical issues, the City of Oakland's medical marijuana ordinance, or California's Compassionate Use Act legalizing medical marijuana (Prop. 215). Rosenthal's defense had hoped to offer evidence that he believed he was acting within federal law, including testimony from the Oakland City Attorney's office concerning a legal opinion given to the City Council that a federal statute provided immunity from federal prosecution for city officials participating in their medical marijuana program. Rosenthal had been deputized by the City of Oakland expressly to shield him from federal prosecution.
But Breyer ruled that without evidence of federal officials actively doing or saying something to convey that immunity, such testimony would not be allowed. Breyer did leave one ray of hope for the defense. He said he would consider allowing Rosenthal to testify as to his state of mind and the basis for his decisions, adding that it was reasonable for Rosenthal to take city officials at their word when they said he could not be prosecuted for helping medical marijuana patients.
"This shuts the door on the defense strategy without quite locking it," Rosenthal attorney Bill Simpich told supporters. But Thursday night a Rosenthal spokesperson told DRCNet there were new indications Judge Breyer may crack open that door. There are signs Breyer will allow Oakland officials to testify as to what they told Rosenthal, she said.
When it came to jury selection, Breyer took great pains to ensure that potential jurors either agreed with federal marijuana law enforcement or could care less. Breyer asked each juror if he or she had strong feelings on the legalization of marijuana, the legality of medical marijuana, or the conflict between federal law and California's medical marijuana law, and whether they could set those views aside to convict Rosenthal under federal law. According to accounts from courtroom witnesses, potential jurors repeatedly regaled the court with anecdotes about medical marijuana, mini-speeches about the need to legalize marijuana, and expressions of disgust for the people behind the federal raids and prosecutions of medical marijuana operations in the state.
By the end of Tuesday, Breyer had exhausted the first jury pool of 52 citizens, excusing more than half of them because of their beliefs about marijuana or their refusal to convict. "With 80% of Americans supporting medical marijuana, it's no surprise that there would be such a day in court," said Steph Sherer, Executive Director for Americans for Safe Access, an umbrella group devoted to an active defense of medical marijuana patients and providers. "This simply reflects that people have made up their minds about medical marijuana. That passion and certainty was felt today in the courtroom."
After calling a second pool of 50 potential jurors on Wednesday, Breyer managed to find 14 who convinced him they could set aside California's medical marijuana laws as they deliberated Rosenthal's fate. But the barrage of comments from the jury pool -- one potential juror Wednesday denounced federal marijuana laws as "grotesque" -- must have gotten to the judge: At one point, Breyer said growing medical marijuana for patients might be "noble" and "humane." Still, he continued to remind potential jurors that he would be instructing them that marijuana cultivation under any circumstances was a crime under federal law and they must be able to set aside any contrary beliefs.