JUDGE NIXES NEW MEDICAL POT TRIAL

Oakland Man Predicts He'll Win On Appeal

A federal judge denied a new trial Friday to medical marijuana advocate Ed
Rosenthal, ruling that he had no right to tell jurors the city of Oakland
had authorized him to grow pot for seriously ill patients.

Rosenthal, 58, of Oakland, a national authority on marijuana growing and
author of a recent book advocating legalization of the drug, was convicted Jan.

31 by a federal court jury in San Francisco of federal cultivation charges.
He is scheduled to be sentenced June 4 and faces at least five years in prison.

At least half the jurors have since renounced their verdict and said they
would not have convicted Rosenthal if they had known that the hundreds of
plants he grew were solely for medical patients in San Francisco, and that
Oakland had deputized him as an official supplier of a city-approved pot
dispensary.

They were barred from hearing that evidence by U.S. District Judge Charles
Breyer, who said Rosenthal's motives were irrelevant under federal drug
law. Breyer also excluded evidence about Proposition 215, the 1996
California initiative that legalized medical marijuana for patients with a
doctor's recommendation to use it.

In seeking a new trial, Rosenthal's lawyers argued that his deputizing by
Oakland brought him within the protection of a federal law immunizing local
drug enforcement officers from prosecution. Breyer disagreed Friday.

Rosenthal's job was not to enforce a drug law, but to implement Oakland's
ordinance that established a medical marijuana distribution system under
Prop. 215, Breyer said. He said the local ordinance cannot be allowed to
interfere with the federal law that bans marijuana distribution.

"Since the Civil War, this country has recognized that whatever the views
of local governments, such views do not control the enforcement of federal
law, " the judge wrote.

Breyer also said he did not violate Rosenthal's rights by telling jurors,
in response to final arguments by a defense lawyer, that "you cannot
substitute your sense of justice, whatever that means, for your duty to
follow the law."

Although jurors have the power to acquit a defendant despite the law -- a
centuries-old practice known as jury nullification -- a trial judge has no
duty to advise them of that right and instead must try to prevent it by
ordering them to follow the law, Breyer said.

For similar reasons, he denied a new trial based on statements by juror
Marney Craig after Rosenthal was found guilty. Craig said she had
telephoned an attorney friend during the trial, asked if she had to follow
the judge's instructions and was told she could get in trouble if she
didn't. Even if the advice affected Craig's deliberations, Breyer said, it
merely reaffirmed a juror's responsibility to follow the law.

Rosenthal said Friday that he wasn't surprised by Breyer's ruling, and
predicted an appeals court would overrule him.

"The judge has a certain agenda," Rosenthal said. "It doesn't matter how he
has to twist the law and precedent in order to get there."