ONLY STATE COULD SHIELD MEDICAL POT

Feds Ignore Cities' Laws, Advocates Say

When the federal government charged prominent marijuana advocate Ed
Rosenthal with illegal cultivation, California's medical marijuana law
proved useless as a shield.

With Rosenthal now convicted and facing prison, and federal charges
pending against other purveyors of medicinal pot, some advocates say
it's time to strengthen the shield -- ideally, by putting the state
government in charge, as either the overseer of marijuana distribution
or the official supplier.

"You need the state to step in before the feds are going to blink,"
Dave Fratello, spokesman for the Campaign for New Drug Policies, said
Wednesday.

Or, as Rosenthal attorney William Simpich put it last Friday after a
federal jury in San Francisco returned the guilty verdicts:

"It's time for states and for cities in California to do it
themselves. They can't put the government in jail."

Proposition 215, the 1996 initiative that legalized marijuana for
medical purposes in California, left distribution virtually
unregulated, specifying only that patients and their caregivers could
possess and grow marijuana.

Local advocates, police, prosecutors and municipal agencies have
filled the gap with a hodgepodge of agreements covering who can obtain
the drug, how much and from what sources. The arrangements often
depend on semi-official dispensaries as well as growers like Rosenthal
- - entities that have proved too big for federal prosecutors to
ignore, but too small to withstand a legal onslaught.

Seven other states have legalized medical marijuana since 1996, and
nearly all have more state regulation than California, including such
measures as statewide patient registries and strict eligibility
standards. There has been virtually no federal interference in those
states.

Advocates for a controlled distribution system, operated by either the
state or local governments, say it would make participants less
vulnerable to federal prosecution -- politically, and perhaps legally
as well.

"If the (state or local) government is helping with the distribution
of medical marijuana and also taking great pains to ensure that it
does not cross state lines, the federal government may not have
jurisdiction," said Dan Abrahamson, legal director of the Drug Policy
Alliance.

But any attempt to amend Prop. 215 faces an obstacle in Gov. Gray
Davis, who has opposed the initiative from the beginning. He has
already blocked two bills to set statewide standards for enforcement
of the law.

The governor still believes that "if there are to be changes, they
need to be at the federal level," spokeswoman Hilary McLean said Wednesday.

Attorney General Bill Lockyer and state Sen. John Vasconcellos,
D-Santa Clara, author of the bills, said they would try to change
Davis' mind this year.

Vasconcellos said he would reintroduce his measure, which would create
a statewide patient marijuana registry and ID card, establish
state-licensed patient cooperatives and let the state set standards
for the number of plants a patient could possess. He said he would
also support involving state and local governments in distribution,
and, like Simpich, said federal authorities would shy away from
jailing public officials.

But Richard Meyer, spokesman for the U.S. Drug Enforcement
Administration in San Francisco, said local and state government
officials who grew or supplied the drug would be no more immune from
prosecution than Rosenthal.

"Regardless of the individual or institution, cultivation and
distribution of marijuana is illegal, and anyone who engages in it is
in harm's way," Meyer said. He added that any building where marijuana
was grown, including government buildings, would be subject to forfeiture.

That scenario could get its first test in San Francisco, where
Proposition S, approved by voters last November, directs city
officials to study growing and dispensing marijuana for medical purposes.

The unusual aftermath of Rosenthal's trial -- four jurors' public
disavowal of their verdict and criticism of the trial judge for
excluding defense evidence showing that Rosenthal was growing
marijuana for medical use -- was only the latest manifestation of many
Californians' displeasure at the unyielding federal stance. A DEA raid
on a medical marijuana club in Santa Cruz last September drew
objections even from Davis, prompted a City Hall protest from local
officials and led San Jose's police chief to withdraw his officers
from a DEA task force.

Rosenthal, facing at least a five-year sentence under federal law,
will ask for a new trial in mid-March and appeal his conviction if he
loses.

The appeal will challenge U.S. District Judge Charles Breyer's refusal
to allow evidence that Rosenthal grew marijuana for medical purposes
and that the city of Oakland had deputized Rosenthal as an official
supplier to a local marijuana cooperative. Defense lawyers say the
designation made Rosenthal a law enforcement officer, a category that
is expressly exempted from prosecution under federal drug laws.

A related court test is pending before another federal judge in San
Francisco. It is a suit by two patients and two caregivers who argue
that the federal government has no authority over their medical
marijuana because it never crossed state lines.