Judge Keeps Tight Rein on Pot Trial
Source: San Francisco Chronicle (CA)
Author: Bob Egelko, Chronicle Staff Writer
Published: Friday, January 31, 2003
Copyright: 2003 San Francisco Chronicle - Page A - 23
Contact: [email protected]
References to medical uses quickly squelched in federal court.
The Bay Area's first federal medical marijuana trial ended Thursday with a bizarre touch that symbolized the entire case: The judge took over questioning of a defense witness to make sure he didn't refer to the medical use of marijuana.
It started when Alameda County Supervisor Nate Miley mentioned that he had met defendant Ed Rosenthal "in the context of Proposition 215," the 1996 California medical marijuana initiative.
Without prompting from the prosecutor, U.S. District Judge Charles Breyer -- vigilant about keeping the trial focused on federal law, which does not recognize medical marijuana -- told jurors to disregard the reference.
A few minutes later, as Rosenthal's lawyer struggled to let Miley describe the defendant's motives and the city of Oakland's endorsement of his work as a medical marijuana supplier, the judge verbally shoved the attorney aside. Breyer then asked Miley a few yes-or-no questions and abruptly curtailed his testimony, to gasps from Rosenthal's supporters.
Breyer's tight rein on Rosenthal's weeklong trial reflected the chasm between strict federal drug laws and California's official tolerance of medical cannabis. The judge has made it clear that, in his view, both Prop. 215 and the public sentiment behind it are foreign subjects for a jury considering federal cultivation charges.
"You are not to consider the purpose for which marijuana is grown," Breyer told the jurors after defense lawyer Robert Eye made one of his numerous attempts to enter a forbidden area. At another point, when Eye urged jurors to use their "common sense of justice," Breyer cut him off and said, "You cannot substitute your sense of justice, whatever that is, for your duty to follow the law."
Rosenthal's supporters, who had packed the courtroom, groaned as Breyer repeatedly blocked defense attempts to refer to Prop. 215, Rosenthal's intent to grow marijuana for patients at a San Francisco dispensary, and his relationship with the city of Oakland, which deputized him as an agent to supply a now-closed medical marijuana cooperative.
Hemmed in by Breyer's rulings, Rosenthal did not testify and was left to hope that a sympathetic local jury would bridge the apparent gulf between state and federal law.
"I think the jury knew what the case was all about," Rosenthal told reporters after the truncated defense case. He said Breyer "didn't want the whole truth; he only wanted pieces of the truth."
Miley, a former Oakland city councilman who sponsored resolutions to lend the city's official endorsement to medical marijuana, was also frustrated with the restrictions on his testimony.
"I think it does a disservice, not only to Ed but to the citizens of this state who supported 215," he told reporters, suggesting that the federal government "should just back off" from interfering with the state law.
The jury begins deliberations today.
Rosenthal, 58, is charged with marijuana cultivation, conspiracy and maintaining a place for cultivation. He faces at least 10 years in prison if convicted of conspiring to grow more than 1,000 plants.
The prosecution of Rosenthal -- the "Ask Ed" columnist for High Times and Cannabis Culture magazines, and author of more than a dozen books -- represents an escalation of the federal government's war on medical marijuana in California that began during President Bill Clinton's administration.
Voter approved Prop. 215 in 1996. It allowed seriously ill patients to use marijuana with their doctor's approval. Almost immediately, Clinton's Justice Department filed civil suits to close local pot clubs and sought to punish doctors who recommended marijuana.
The Bush administration has turned to statewide raids and criminal prosecutions -- most notably, the charges against Rosenthal and others associated with the San Francisco Harm Reduction Center.
Federal agents said they found more than 3,000 marijuana plants in an Oakland warehouse leased by Rosenthal. The defense tried to show that most of them were not technically "plants," with root systems, but merely clones, or cuttings, intended for sale to patients at the Harm Reduction Center.
Under federal law, cultivation of more than 1,000 plants carries a mandatory 10-year sentence, and cultivation of 100 to 1,000 plants carries at least five years.
In closing arguments Wednesday, Assistant U.S. Attorney George Bevan portrayed his case as open-and-shut: "Cultivation of marijuana is a federal offense, period. Nothing else matters."
But Prop. 215 sifted into the case, with demonstrations by taped-mouth supporters outside the courthouse, pretrial questioning of jurors about their views on the measure, and incessant defense efforts to slip words like "medical" and "patient" into questioning or testimony, which generally drew rebukes from Breyer.
After defense lawyer Eye made a final plea Thursday for jurors to follow their consciences, an irritated Bevan said Eye was out of line. "This is a federal courtroom," the prosecutor said. "It is not a polling place."
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