Ed Rosenthal walks :)
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Wed Jun 4 23:04:00 EDT 2003
Pot grower spared prison time
Medical marijuana advocates claim victory in pivotal Rosenthal
In a dramatic blow to the federal government's campaign against medical
marijuana, a federal judge spared pot advocate Ed Rosenthal from a
prison sentence Wednesday for his conviction on cultivation charges,
saying Rosenthal reasonably believed he was acting legally.
Rosenthal, 58, a prominent author, columnist and authority on marijuana
growing, faced at least five years in prison under federal law for his
conviction of growing more than 100 plants for the Harm Reduction
Center, a San Francisco dispensary operating under California's medical
marijuana law. A federal prosecutor asked for a 6-year sentence.
But U.S. District Judge Charles Breyer said the "extraordinary, unique
circumstances of this case," were not covered by the usual sentencing
law and imposed the lightest term possible -- a day in jail, which
Rosenthal served after his February 2002 arrest. He also fined
Rosenthal $1,300 and put him on supervised release for three years,
with orders not to violate any criminal laws and to submit to searches.
"This is day one in the crusade to bring down the marijuana laws, all
the marijuana laws," Rosenthal -- whose latest book is called "Why
Marijuana Should Be Legal" -- proclaimed after the hearing to about 100
Some carried huge puppet figures showing President Bush and Attorney
General John Ashcroft in jailhouse garb and depicting Rosenthal and
other medical marijuana defendants with angels' wings. San Francisco
District Attorney Terence Hallinan was also in the gathering and
praised the judge's decision.
Rosenthal, who had denounced Breyer as biased during the trial, spoke
respectfully to the judge before sentencing, saying he took
responsibility for his actions and adding, "My conscience led me to
help people who were suffering." But he was in no mood to praise Breyer
"He did me no favors" in sentencing, Rosenthal said. "He made me a
felon because he would not allow the jury to hear the whole story. He
had an agenda. I call on Judge Breyer to resign."
Rosenthal plans to appeal his conviction, based on Breyer's rulings
that kept virtually the entire defense case from the jury --
Rosenthal's medical motives, his claim that the city of Oakland had
designated him as an officer to supply marijuana to a city-endorsed
dispensary, and his reliance on Proposition 215, the 1996 California
initiative that allowed seriously ill patients to obtain marijuana with
a doctor's recommendation.
Prosecutors could also appeal Breyer's decision to reduce the sentence
below the standard federal guidelines. No decision has been made on an
appeal, said Assistant U.S. Attorney Matthew Jacobs, spokesman for the
But advocacy groups declared victory.
"Today marks the beginning of the end of the federal war on medical
marijuana patients," said Robert Kampia, executive director of the
nonprofit Marijuana Policy Project in Washington, D.C.
"It sends a very strong message to the Bush administration that they
had better focus their law enforcement resources on serious and violent
crime, especially terrorism, and stop arresting patients and caregivers
in the nine states that have legalized medical marijuana," said Keith
Stroup, executive director of the National Organization for the Reform
of Marijuana Laws.
Also celebrating were some of the jurors who disavowed their guilty
verdict after learning about the evidence that had been excluded. Seven
of the 12 jurors signed a letter urging Breyer not to sentence
Rosenthal to prison, and four attended Wednesday's hearing. State
Attorney General Bill Lockyer also called for a lenient sentence.
"Today has put my faith back into our judicial system," said juror
Pamela Klarkowski, a registered nurse from Petaluma.
The prosecution of a noted activist on his home turf was only one of a
series of federal enforcement actions since California voters approved
Prop. 215. A civil suit initially filed by the Clinton administration
resulted in a U.S. Supreme Court ruling that shut down the Oakland
marijuana coopeative -- though more than 30 others are still operating
in the state -- and both the Clinton and Bush administrations have
sought, unsuccessfully so far, to punish doctors who recommend
The Bush administration has also raided pot farms and dispensaries and
filed numerous criminal charges, winning prison sentences against at
least four medical marijuana growers, with a dozen more cases pending,
according to advocates.
Rosenthal's case was unique because of his relationship with the city
of Oakland. Trying to shield its Cannabis Buyers' Cooperative from the
federal crackdown, the City Council declared the organization an
official city agency in 1998 and allowed its leaders to designate
suppliers -- including Rosenthal -- as city officers.
Breyer refused to allow evidence of those events at the trial, ruling
that Rosenthal did not qualify as a narcotics law enforcement officer,
which would have immunized him from prosecution. But he cited the same
evidence Wednesday in his sentencing decision.
Rosenthal "believed that he was not violating federal law," the judge
said. "His belief, while erroneous, was reasonable."
Because his ruling served notice that a local agency can't provide
protection from federal charges, Breyer said, leniency for Rosenthal
won't encourage lawbreaking by others. "This case should not and could
not happen again," he said.
Rosenthal disagreed, predicting to reporters that higher courts would
find Breyer "dead wrong" on the immunity issue. Defense lawyer Dennis
Riordan added that Breyer's comments should make an appellate court
wonder why jurors weren't allowed to hear the same evidence.
Assistant U.S. Attorney George Bevan, whose prosecution of Rosenthal as
an ordinary drug criminal was aided by Breyer's earlier rulings, argued
in vain for similar treatment at sentencing.
"There is nothing exceptional about this case," Bevan told the judge.
He said Rosenthal "may have had a motive to sick people" but ran his
operation as a "cash cow" and "used the City Council in an effort to
put an umbrella around his illegal cultivation."
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