After preliminary skirmishing last week (http://www.drcnet.org/wol/272.html#edrosenthal), federal prosecutors got down to the business of trying to put America's leading marijuana cultivation author behind bars for at least the next 10 years on Tuesday. The trial of Ed Rosenthal for growing medical marijuana in cooperation with Oakland authorities opened to daily demonstrations and national media coverage in San Francisco, and prosecutors, fearing that media attention could infect the jury with the facts behind the case, made an attempt to impose a gag order one of their first orders of business.
US Attorney George Bevan asked Judge Charles Breyer on Tuesday to issue a gag order forbidding Rosenthal, his family and his attorneys from speaking to the press. Bevan told the court that news coverage of the trial was "contaminating the jury." While Breyer said he had never issued a gag order, he did ask Rosenthal's attorneys to secure a voluntary agreement from Rosenthal not to comment, and pointedly noted that in the event of a conviction he would consider it appropriate to consider Rosenthal's conduct during the trial.
But if prosecutors hoped to quiet the media through the gag order request, it didn't exactly work out that way. The San Francisco Chronicle sent its First Amendment attorney to court the next day, and the defense brought in high-powered First Amendment Project senior counsel Jim Wheaton as an advisor. "A gag order is unnecessary, unworkable and unconstitutional," said Wheaton.
On Thursday, Judge Breyer agreed, telling prosecutors they hadn't made their case. "This is a victory for the public's right to know," Rosenthal spokesperson Theresa Schilling told DRCNet. Breyer told prosecutors the bottom line was that the case was happening in the larger context of a broad public debate, Schilling reported, and it was not in the public interest to muzzle anyone.
Rosenthal scored another small victory Thursday when a subpoenaed witness, responding to a query from Judge Breyer about the difference between clones and plants, managed to explain to the courtroom that clones are cuttings that have no roots, flowers or buds, and are used so patients can grow their own medicine. Last week, Breyer barred any mention of medical marijuana, California's Proposition 215, or Oakland municipal ordinances designed to protect Rosenthal while he grew for patients.
The issue of clones took up much of the testimony this week. Because Rosenthal's charges are based on the number of plants seized, the defense has doggedly gone after prosecution witnesses -- DEA agents -- who participated in the bust and the counting of the plants. Under federal law, rootless clones cannot be counted as plants. "There is a discrepancy over the count, and that's a big deal," said Schilling. DEA witnesses reluctantly testified that the government had destroyed much of the seized evidence and that they could not identify the number of plants and clones in still photographs taken during the raid. The close questioning of the DEA agents about clones wasn't exactly exciting for observers, according to Schilling. "It was a tedious day."
The trial continues next week, but activism in support of Rosenthal and, more broadly, in support of California medical marijuana providers, continues. "We have had activists in front of the court house with duct tape over their mouths and medical marijuana symbols on their chests every day court has been in session," said Steph Sherer of Americans for Safe Access (http://www.safeaccessnow.org), an umbrella group devoted to a proactive defense of medical marijuana patients and providers. But unlike the trial of Bryan Epis, the Chico, CA, provider sent to federal prison in October, activists in the street are staying out of the courtroom, Sherer told DRCNet. "We've learned some lessons from Epis," she said. "We don't want to raise any questions in the judge's mind."
And in what Sherer called a "fortuitous coincidence," a newly formed coalition of patients, caregivers, doctors and public officials this week commenced its California billboard campaign calling for "compassion, not federal prison" for medical marijuana providers. Featuring the eight-year-old daughter of Bryan Epis holding a sign saying "My dad is not a criminal," the posters cover 35 billboards across the state, as well as on bus stop shelters.
The campaign (http://www.MedicalMJ.org) is sponsored by the Common Sense for Drug Policy (http://www.csdp.org) and its sponsor, Robert Field. "ASA did the groundwork, Robert put up the money, and Clear Channel Communications donated $20,000 worth of billboard space," Sherer said.
Californians need to "take action to bring Bryan back to his daughter and stop federal policies that divide families, punish the seriously ill and make good Samaritans into criminals," said CSDP's Kevin Zeese.
Meanwhile, the Rosenthal trial gets back to business next week. Visit http://www.green-aid.com for daily updates on the trial.