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Feature: Ed Rosenthal Convicted Again in Pyrrhic Victory for Feds

Submitted by Phillip Smith on (Issue #488)
Drug War Issues
Politics & Advocacy

A federal jury Wednesday found "Guru of Ganja" Ed Rosenthal guilty for a second time of growing hundreds of marijuana plants in what is no more than a symbolic victory for federal prosecutors. Because Rosenthal has already served a lenient one-day sentence after he was first convicted of the same charges in 2003, US District Court Judge Charles Breyer, the presiding judge in the case, has already ruled that he cannot be resentenced.

Ed Rosenthal at courthouse, with supporters, September 2006 (courtesy
Rosenthal's original conviction was overturned on appeal. Vengeful federal prosecutors angered by his public criticism of their methods retried him knowing they could not further punish him. They even filed additional charges that Judge Breyer threw out as vindictive.

The trial itself was noteworthy for the mass refusal of medical marijuana movement people subpoenaed to testify for the government to do so. Equally noteworthy was their escaping without contempt citations -- at least so far.

Rosenthal grew the plants to produce medical marijuana for use in California, where it is legal, but his defense was unable to explain that to the jury because it was blocked from doing so by Judge Breyer. Federal law and the federal courts do not recognize "medical" marijuana. Neither was Breyer willing to let defense attorneys go too far in urging the jury to vote its conscience.

"There are places that we can't go... There are answers too realistic, reasonable questions you may have that I can't give you," defense attorney Robert Ampranan told the jurors during final arguments. "I fear my government because it does not always tell us the truth. The federal government has had almost six years to complete this recipe... and yet their recipe, ladies and gentlemen, contains tainted, soiled, spoiled ingredients," he said. "If it smells like something that's going to make you sick, you have the right to reject it."

Shortly later, as Amparan compared Rosenthal's prosecution to past injustices done under color of law, such as slavery and the internment of Japanese-Americans during World War II, Breyer sent the jury from the courtroom and accused Amparan of trying to lead the jury into questioning the federal law itself. When Amparan replied that he wasn't, but that he intended to cite the false pretenses for the war in Iraq and the disastrous response to Hurricane Katrina as other examples of government mistakes, the packed courtroom burst into cheers. Breyer warned that he would clear the courtroom if any more outbursts occurred, then ordered Amparan not to make that argument to the jury.

After deliberating for two days, the jury convicted Rosenthal of growing more than 100 marijuana plants, conspiring to cultivate the drug and maintaining a growing operation in a warehouse. He was acquitted of a fourth charge, and Breyer sternly ordered prosecutors to drop the fifth charge when the jury said it was deadlocked.

"It's a shame that the federal government continues to put California citizens in the position of having to set aside their own votes at the ballot box and pretend they don't know anything about the state law or medical science," said William Dolphin, a spokesman for the Rosenthal defense fund Green Aid. "After 60% of the jury pool just refused to be involved in a case like this, we ended up with a jury that felt like it had to follow the instructions of the court."

"The government has shown it can in fact win a conviction in a medical marijuana case in the most pot-sympathetic district in the country," said Dale Gieringer, head of California NORML. "Of course, when we have to play by their rules and can't even mention the main element of the defense, it's an open and shut case. Ed was clearly growing pot, as was shown by the government."

If the verdict was somewhat anticlimactic, there was high drama and civil disobedience in court last Friday. That's when six medical marijuana movement witnesses subpoenaed by the government to testify against Rosenthal simply refused. Five others who were prepared to join them were dismissed on technical grounds.

One by one, recalcitrant witnesses Debbie Goldsberry, James Blair, Etienne Fontan, Evan Schwartz, Brian Lundeen, and Cory Okie told the court they would not participate in an immoral prosecution. (Read the transcript here.) "I told them I could not participate and go against the wishes of the community," said Goldsberry.

Judge Breyer praised the six for their dignified conduct and asked them if being sent to jail for the weekend would make them change their minds about testifying. When they replied in the negative, he sent them home for the weekend. They reappeared on Tuesday, reiterated their refusal to testify, and Breyer simply excused them.

The successful act of civil disobedience merits attention, said California NORML's Gieringer. "It's important that this gets some attention because it is one of the few actions where people have had the courage to risk going to jail for refusing to testify for the government," said Gieringer. "The prosecutor can file contempt charges if he wants, but I think the judge would be pretty unhappy. Rosenthal isn't going to jail in any case, so to have someone go to jail would be a real travesty."

"The community is getting fed up," said Green Aid's Dolphin. "The jury pool was not happy, the judge was not happy, and a dozen people subpoenaed to testify just said 'I'm not going to do it, and you can't make me.'"

The federal government prevailed by winning several convictions against Rosenthal, but the victory may be a pyrrhic one. The Justice Department and local federal prosecutors have managed to irritate just about everybody in Northern California, from the presiding judge on down. And the continuing persecution of Rosenthal and other medical marijuana providers has only strengthened the community and emboldened it to try new, provocative tactics.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

In reply to by Anonymous (not verified)

is indeed the us gov. they are gaining more & more control over us as humans that it sickens me but more so scares me. the gov deprives us of our rights as citizens, eventually making laws to control us. we need to stand together & take back control. this is our country.......not the governments.

Fri, 06/01/2007 - 5:03pm Permalink
Anonymous (not verified)

tYPO in my last.

Since 1971 the dollar has LOST all of it's value.
In 1971 you could trade a silver dollar for a federal reserve note.
Today, it's more like 15 of those federal reserve notes to aquire 1 of those OLD Silver dollars.
And you thought gasoline was driving the raise in costs.

Fri, 06/01/2007 - 11:30am Permalink
Anonymous (not verified)

For me, a veteran European toker, the US seems a true fascist hell. 'One more reason for everyone on the planet to hate the filth you choose/allow to run your wretched country.
Thankfully, I'll never need to go there, ever, for any reason!

Fri, 06/01/2007 - 12:09pm Permalink
Giordano (not verified)

In reply to by Anonymous (not verified)

Check out the book "Getting Out: Your Guide to Leaving America" by Mark Ehrman. 2006. $16.95

It gives you all the info you need to become an expat, and deals with each country's laws and regs. on residency, citizenship, drugs, etc.

Also check out

Sat, 06/02/2007 - 4:17pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

The problems mount ten fold for those poor souls who want to get the hell out of here. But with money being this tight, we are all trapped. Hell, most of us have yet to learn how not to piss people off in their native lands so, we shouldn't be so surprised that no one's bustin' their butts trying to help us.

Fri, 11/02/2007 - 5:20pm Permalink
Anonymous (not verified)

Thankfully Ed's real "conviction" was to stand strong against government repression and the "convictions" of Debbie Goldsberry and the other 5 who refused to testify stood strong also. We all need to keep fighting for our real convictions.

Fri, 06/01/2007 - 12:21pm Permalink
Anonymous (not verified)

Anonymous on Fri, 06/01/2007 - 11:09am says:

For me, a veteran European toker, the US seems a true fascist hell. 'One more reason for everyone on the planet to hate the filth you choose/allow to run your wretched country. Thankfully, I'll never need to go there, ever, for any reason!

And we are glad to hear you wish to stay home. As to fascism - I believe that was a European invention. Hey. I know how it is. Some times these exports get out of hand.


I'm very happy to see citizens doing what they must.

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." -- Thomas Jefferson

If you want Liberty you must pay the price.

"The price of freedom is eternal vigilance." Thomas Jefferson.

Well you know how it is I'm one of them 2nd Amendment Americans. I believe in Liberty. I'm willing to pay the price.

The deal is to end all status crimes. Not just the ones about drugs. We want to get out of the habit of labeling objects as "demon". End the demonization of drugs. End the demonization of tobacco (it is an anti-depressant) End the demonization of guns. It is a package deal. The problem is not bad objects. It is bad people. Plus a lot of misunderstanding.

Fri, 06/01/2007 - 1:17pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

Right, all this polarization of good vs. evil makes people vulnerable to all the propaganda, they never see the real deal, the real agenda of those in power.

And to the toker in Europe, at times I wish I could be there with you- as our country has allowed our govt/legal system to stray so far from what was originally intended when America was founded. But since I must stay, I'll fight for my country as much as I can...... Thanks to DPP, we can be supported in that fight.

Fri, 06/01/2007 - 4:17pm Permalink
Anonymous (not verified)

The Rosenthal case comes extremely close to cracking the door regarding "jury nullification." That means a jury, although convinced of the guilt of the accused, nonetheless finds the law under which the prosecution is brought is nonsense, and acquits. Prior to the Civil War, States and jurors had this right to reject a federal law. It happened before the Courts decided that jurors should not be allowed to vote their conscience and eliminated this avenue. The "Alien and Sedition Act" under which a newspaper publisher was prosecuted for printing remarks critical of the federal government was rejected by a jury, which refused to convict even though the publisher was clearly guilty under the Act. Even after being thrown in jail, the jurors stood by their decision, and the publisher was acquitted. This led to the Act being repealed. Maybe we need to return to those days; without jury nullification, legislators continue to pile on law after law with little chance of a meaningful way to send a message that citizens find a law repugnant. In any event, kudos to those courageous souls who refused to testify in support of the government's questionable prosecution.

Fri, 06/01/2007 - 1:26pm Permalink
Anonymous (not verified)

It seems that some truths about what you're doing in the wider world are unpalatable even for you DRCNet. American hypocrisy is all-pervasive!

Fri, 06/01/2007 - 1:44pm Permalink
Anonymous (not verified)

'This time, without the "sporting terms" you seem to find offensive; the world's peoples would like all your paid killers to go home and stay there. Wild West, indeed!

Fri, 06/01/2007 - 1:54pm Permalink
borden (not verified)

In reply to by Anonymous (not verified)

But what in the world does this have to do with Ed Rosenthal?!?!?!?!? Please try to be on topic -- we are trying to fix drug laws here. Your first comment at least related slightly to the Rosenthal case, in that you were relating it to the climate in the US as a whole. Everything else you've written in this thread subsequently was completely devoid of any relevance. I would have let the obscenities go if you had at least been saying something, instead of just reviling other participants for the collective guilt they bear for things they don't control and that are unrelated to this article or web site.

David Borden, Executive Director the Drug Reform Coordination Network
Washington, DC

Fri, 06/01/2007 - 1:59pm Permalink
Anonymous (not verified)

The first major act of fascism was the bombing of Guernica, the second, the "Harrison Tax Act". The former killed several hundred innocent people in the space of a few hours; the toll from the latter is incalculable, and continuous. . .

Fri, 06/01/2007 - 2:16pm Permalink
Anonymous (not verified)

Med. Marijuana doesn't work too well for my med. condition (severe spinal cord injury/paralysis) altho it does better than nothing at all when my pitiful little methadone scrip runs out--was prescribed 180mgs/day in Baltimore but Ga Dr.s won't go over 40. If you got chronic pain in GA--go somewhere else.....

Fri, 06/01/2007 - 2:28pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

is Rosenthal a chronic pain sufferer? I know very little about the details of this case.

Fri, 06/01/2007 - 2:39pm Permalink
Anonymous (not verified)

OK, my second post was a knee-jerk' to some idiot and I should have resisted the temptation. The language was less than genteel, but hardly obscene. What I find obscene is the fact that Guernica and Harrison' occurred in the same year. European fascism found American "soil" very much to its liking, and still does, apparently.

Fri, 06/01/2007 - 2:38pm Permalink
Anonymous (not verified)

Come on, Dave, it was your reporter who raised the issue of "a novel form of civil disobedience in the courtroom" in the subhead of the Chronicle, and you're bugged that a commenter here is taking it just a little farther?

Maybe it's just me, but wouldn't you want your friends and allies to testify in your case, even if the record was all that remained at issue? Who'd you be likelier to get a fair shake from in testimony?

Fri, 06/01/2007 - 6:00pm Permalink
Anonymous (not verified)

It is unconstitutional to deny jurors knowledge of any fact relevant to the case they are judging. The Constitution guarantees everybody the right to a fair trial and the trial cannot be fair if the jurors are denied relevant information. And it does not make this denial constitutional if some self important, black robbed, Neanderthal buffoon says it is. Contrary to a widely circulated falsehood, the Constitution does not mean what the judge, even the Supreme Court, says it means. The Constitution says what it says, i,e, it means what its words combined in grammaticals sentences mean.
For instance, the Constitution guarantees freedom of religion. If some judge, or even the nine Supreme Injustices, rules that it is constitutional to outlaw the Lutheran Church, this is still unconstitutional according to what the Constitution says, and no amount of judicial rulings can change that meaning.
It would have been even better if those refusing to testify had quickly inserted some statements about medical necessity and the jurors right to vote their conscience in the reasons for their refusal before the judge could cut them off. Incidentally, denying the jurors knowledge of this right is also unconstitutional.
Knowledge of both medical necessity and the jurors right to vote their conscience should be circulated as widely in the community as possible so that jurors are likely to know it even if the judge forbids telling the jurors about their rights. If the jury has not been sequested, this information should be mailed to them anymously. If they are sequested, the courthouse should be leafleted about this information. The leaflets should be given to everyone entering the courthouse, starting at least an hour before people report for jury duty.
And lastly, I do not consider it helpful for some "moderator" to come in and quash people for alleged obscenity or irrelevance. This issue of the government's infringing on citizens right to put whatever substance they chose into their bodies is relevant and connected to the government's infringing on other rights. Indeed, none of the comments posted is any more wide ranging and "irrelevant" than the arguments the defense attorney himself tried to raise.
And I do not share the tight asses offense at profanity and obscenity. If it bothers you, join a church!
Robert Halfhill

Fri, 06/01/2007 - 6:32pm Permalink
Anonymous (not verified)

Make sure you don't let a prosecutor become President. Stop Giuliani, support Ron Paul for President.

Fri, 06/01/2007 - 7:39pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

There are a couple of good prosecutors out there.
But Rudy is a fascist. You are right about Ron Paul.

Sat, 06/02/2007 - 3:36pm Permalink
Anonymous (not verified)

The baliff asks the testifier for the truth ,THE WHOLE TRUTH, and nothing but the truth. How can that be said of Ed's trial? Jury nullification should be used as recourse if the judge nullifies the information available to the jury. If a judge nullifies you , nullify him. I agree , prosecuters suck. Each one is a political ladder climber who would walk on his own mothers grave to gain political office.Heads on pikes may be the only solution.

Sat, 06/02/2007 - 9:11am Permalink
Anonymous (not verified)

You could say, too, that the non-violent nature of its adherents is a contributing factor. If we weren't so fucking docile we could raise an army of unabombers to target all DrugWar hawks. The required info is all over the web now. A good few thousand Ted Kaczynskis with easy access to, say, cyclonite and nitromannite would make the prosecution of this obcenity look a lot less attractive than it does now.
I'm not advocating extreme violence in any way, shape, or form, but desperate situations sometimes bring desperate remedies to mind.

Sat, 06/02/2007 - 10:13am Permalink
Anonymous (not verified)

You mean fight fire with fire. What a novel idea? I wanna enlist.

Sat, 06/02/2007 - 10:32am Permalink
Anonymous (not verified)

from the conclusion of US vs. Moylan:

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

It's obvious why every judge in America wants a jury box filled with docile, ignorant citizens. Particularly when it comes to medicinal cannabis...

Sat, 06/02/2007 - 12:02pm Permalink
Anonymous (not verified)

I totally agree with anonymous who informs us of the power of juries to acquit if they feel the case is politically motivated, or that the punishment for the crime would be too harsh, or if they feel the law is in error. Judges illegally inform juries they must rule under the laws the judge dictates to them. For judicial instructions should be considered advice and not imperatives.

Note that the Feds have to cheat in order to win. They cheat by refusing to fund proper medical research. They cheat by hiring spokespersons to spread disinformation. And in Ed's case, they cheated by preventing the Jury from hearing all of the facts in the case.

The US Constitution clearly states that powers not specifically assigned to the Federal Government rest with the States. Since there is not one word about marijuana or cannabis prohibition in the Federal Constitution, the Feds have no authority to interfere with States that have passed marijuana legislation.

Here again they cheat by using the Commerce clause in the Constitution in a convoluted interpretation whereby because a user in a medical marijuana state might buy marijuana and thereby NOT buy, Valium, then that might "affect the commerce" between states. This doesn't pass the fourth grader test. For even a fourth grader can tell this makes no sense.

While we all love to blame the Bush administration for all the ills of Iraq, Katrina, etc., the Clintons were no better when it came to stomping out real science in medical marijuana research, allowing the DEA to interfere in states with medical marijuana laws, and to continue to let drug education programs dispense false information on the "dangers" of marijuana such as addiction, cancer, or memory loss.

Our path, for the moment is to get on every jury and just say "no" to all prosecutions for marijuana whether they involve cultivation, possession, use, or sales. --- Becky Johnson of Santa Cruz, Ca.

Sat, 06/02/2007 - 1:03pm Permalink
Anonymous (not verified)

and about rhetoric.

US vs. Moylan was decided in 1969. It is a key element in regaining the freedoms that have been stolen from us under false pretenses, and in the process led to abominations such as judges directing citizen jurors to follow only the judge's instructions and not their own consciences. Why has this key point not been taught in civics classes?

Probably because there are hardly any public schools teaching such classes. Nor are there many teaching the basics of rhetoric, and how to identify holes in logical presentations when they are proffered as factual, or how to tell an emotionally based argument from a factually based one. When public schools fail to teach future citizens the skills they need to become full-fledged ones, society suffers at the hands of those whose motivations are less than beneficent, and more along the lines of self-serving most DrugWarriors are.

Sadly, it becomes the chore of the citizen to educate themselves in the nature of - and protection of - their own rights in the face of a government actively seeking to maintain ignorance of them and prevent their utilization (judge's instructions, remember?). Enough such citizens will cause the abridgment of those rights to itself be curtailed. It can't happen soon enough. - nemo

Sun, 06/03/2007 - 1:39pm Permalink

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