Ed Rosenthal has been a columnist for both High Times and Cannabis Culture magazines. He is the author of several books, including Closet Cultivator: Indoor Marijuana Cultivation Made Easy; Marijuana Growers Handbook: The Indoor High Yield Cultivation Grow Guide; The Big Book of Buds: Marijuana Varieties from the World’s Great Seed Breeders; and Ask Ed: Marijuana Law. Don’t Get Busted.
In one of its most aggressive moves to prosecute someone involved with medical marijuana, in February 2002 the U.S. Attorney charged Rosenthal with cultivation and distribution of marijuana after they had found him to be growing hundreds of plants in a warehouse.
On September 4, 1998, Rosenthal was deputized by the city of Oakland, California, as an “officer of the City of Oakland” for the purpose of cultivating marijuana for local patients, pursuant to the Oakland Municipal Code Pertaining to Medical Cannabis. Therefore, his work with the marijuana plants was in compliance with city regulations. He supplied marijuana plants to the Harm Reduction Center, a San Francisco compassion group running a dispensary providing marijuana to medical patients. In addition to the warehouse, the Harm Reduction Center and Rosenthal’s residence were also raided.
What Rosenthal was doing is legal under California state law, but illegal under federal law. However, the U.S. Attorney’s office found it necessary to spend a whole bunch of money to put Rosenthal through two trials.
In his first trial Rosenthal was convicted on February 1, 2003, and faced five or more years in prison and possible fines of up to 4.5 million. The prosecutors wanted him sentenced to 6 1/2 years. The judge cited unusual circumstances and Rosenthal was sentenced to the minimum time possible under the case: one day in jail. But Rosenthal was credited with time served. He was also fined $1,000.
Complicating his defense, U.S. District Court Judge Charles Breyer ruled that the evidence and witnesses Rosenthal had tried to introduce for both his first and second trial were inadmissible and irrelevant. Therefore, the jury never heard that Rosenthal had been deputized by the City of Oakland to provide medical marijuana, or that he was in compliance with city regulations. Rosenthal’s defense was not permitted to present scientific testimony about the medical efficacy of marijuana, nor were they allowed to present information about state laws and local ordinances governing medical marijuana. Testimony from city council member Nate Miley was allowed in the first trial, but was not allowed in the second trial.
When the jury of the first trial learned that they were not permitted to hear the whole story, including that Rosenthal was acting on behalf of city officials, within hours of the verdict seven of the 12 jurors repudiated their verdict and criticized the court.
Upon appeal, Rosenthal’s attorney, Dennis Riordan, argued in September 2005 that the trial judge’s refusal to allow Rosenthal to present information regarding his work to supply cannabis to medical marijuana patients as permitted by the state and city violated Rosenthal’s Sixth Amendment right to a fair trial. The three-judge panel of the Ninth Circuit Court of Appeals said, “We reject the premise that an ordinance such as the one Oakland enacted can shield a defendant from prosecution for violation of federal drug laws.”
On April 26, 2006, Rosenthal’s conviction was overturned on the standing that a juror engaged in misconduct by seeking outside legal advice from an attorney friend prior to the verdict. The appeals court ruled that this exchange between the juror and her attorney friend was an “improper influence.”
The juror said she had called her attorney friend because she was “troubled” and “frustrated and confused” by the court presentation that was lacking information on medical marijuana and by the judge’s instruction that only federal law could be considered in the case. The juror had asked her attorney friend if she could vote her conscience. Her friend told her that she should follow the instructions of the judge or she could “get into trouble.” The court’s opinion was that, “Jurors cannot fairly determine the outcome of a case if they believe they will face ‘trouble’ for a conclusion they reach as jurors.” The court was of the opinion that, “A juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished.”
“We hold that here the communication was an improper influence upon Juror A’s decision to acquit or convict.”
– Ninth Circuit Court of Appeals Judge Betty Fletcher wrote for the court, joined by judges Marsha Berzon and John Gibson.
The federal prosecutors had also filed an appeal and argued that Rosenthal should have received two to five years in prison. Upon overturning Rosenthal’s conviction, the Ninth Circuit said that the government’s challenge to the length of Rosenthal’s sentence was “moot.”
On October 12, 2006, the U.S. Attorney’s office in San Francisco re-indicted Rosenthal.
On May 30, 2007, the jury of the second trial split its verdict on a trial during which Rosenthal offered no defense. He was found guilty of three federal felonies, including one conspiracy count; one count of growing with intent to distribute and of distributing marijuana; and one count of using a commercial building to grow and distribute marijuana. He was found not guilty on charges relating to providing marijuana plants to the Harm Reduction Center. The jury deadlocked on a conspiracy count, which was dismissed by the U.S. Attorney’s office on direction of the judge.
Nine additional money laundering and tax evasion charges that the U.S. Attorney’s office brought against Rosenthal when they re-indicted him in October 2006 were ruled to be vindictive prosecution and dismissed by Judge Breyer on March 14. In his ruling to dismiss, Judge Breyer said, “The government’s deeds – and words – create the perception that it added the new charges to make Rosenthal look like a common criminal and thus dissipate the criticism heaped on the government after the first trial.”
The U.S. Attorney’s office tried to get seven medical marijuana patients to testify against Rosenthal. All seven patients rejected immunity letters from the U.S. Attorney’s office, refused to answer questions, and were found in contempt of court. They were later excused by Judge Breyer after telling him that they would not testify.
“I think that this prosecution is against the will of the people, and it’s actually harming the citizens of California. I believe it would be illegal and immoral for me to participate in the prosecution because of that.”
– Debby Goldsberry, one of seven patients who refused to testify against Ed Rosenthal
The judge as well as the prosecutor allowed that Rosenthal would serve no jail time or have to pay a fine with the second conviction. He had already had three years of supervised release.
“The government gets medical marijuana convictions by cherry-picking juries and then preventing any meaningful defense. When it comes to medical marijuana, our federal system of justice is broken.”
– Rob Amparán, attorney for Ed Rosenthal. May 30, 2007.
“If the jury had heard the whole truth, they would have acquitted me on all charges. These laws are doomed. Science and compassion will win out over politics and superstition…
Whether they know it or not, the jury voted against their own self-interest. At some point they’re going to wake up and realize the enormity of what they did, and they’re going to live with that for the rest of their lives the way the previous jury did…
It’s a cruel thing for the government to impose upon its citizens, the idea that they have to leave their conscience behind when they vote in the jury box. That should be part of it, and so should justice.”
– Ed Rosenthal, May 30, 2007; Green-Aid.com