ED ROSENTHAL'S APPEAL

C-Notes

The light sentence meted out by U.S. District Judge Charles Breyer June 4
- -time served, one day-represents a personal victory for Ed Rosenthal and
his family and friends. There was a legal victory, too: publicity around
the case has notified prospective jurors in California that they are
ideally suited to monkey-wrench the drug-war machine.

Rosenthal's attorney Dennis Riordan has already notified the 9th U.S.
District Court of Appeals that he will challenge the conviction. Riordan's
specialty is reviewing trial records for reversible errors. (It was Riordan
who got Marjorie Knoller's sentence reduced from murder to manslaughter in
San Francisco's infamous "dog-mauling" case.) He thinks he found some
significant errors in Judge Breyer's handling of the Rosenthal case.

For openers: Breyer should have allowed the jury to hear that Rosenthal
- -who had been authorized to grow marijuana under a program created by an
Oakland city ordinance-thought he was acting legally. "If the jury got to
hear that," Riordan said in a post-sentencing interview, "they could have
decided Ed was acting in good faith and acquitted him. He was denied the
right to present a mental-state defense to the jury."

Riordan is also challenging Breyer's ruling that the Oakland
cannabis-distribution program is invalid under federal law. The program
relies on the same section of the federal Controlled Substances Act,
885(d), that entitles undercover police officers to obtain, handle, and
sell illicit drugs.

Section 885(d) states that "no civil or criminal liability shall be
imposed" on any state or local "authorized officer...who shall be lawfully
engaged in the enforcement of any law or municipal ordinance relating to
controlled substances." After Prop 215 passed, Oakland lawyer Robert Raich
proposed that the wording of 885(d) could apply to city-appointed officers
engaged in obtaining, handling, and selling cannabis. The Oakland city
attorney agreed, and Jeff Jones, director of the Oakland Cannabis Buyers
Co-op, was deputized to make the herb available to patients qualified to
use it under California law. Jones subsequently assigned Rosenthal to grow
clones -starter plants of known sex and quality-for distribution to such
patients.

At preliminary hearings in the Rosenthal case several Oakland officials,
including an assistant city attorney, testified that they believed their
cannabis distribution program was legal under 885(d) -but Breyer disallowed
that whole line of argument. He cited his own ruling in a previous case
involving Jeff Jones and the Oakland CBC: it would violate the basic
prohibitionist purpose of the Controlled Substances Act to interpret 885(d)
as protection for cannabis providers. Breyer repeatedly described his
interpretation as "the common-sense reading of the statute." But the
Raich/Oakland reading is the literal one, and statutes are supposed to mean
what they say. "I think we have an extremely good chance of being
vindicated on appeal," said Riordan.

During those pre-trial hearings in January, Judge Breyer had expressed
skepticism that Ed Rosenthal was unaware of his previous ruling that the
Oakland cannabis-distribution program was illegal under federal law. But
on Tuesday, June 4 -influenced perhaps by editorials in the San Francisco
Chronicle and the New York Times- Breyer gave Ed the benefit of the doubt.
He based his lenient sentence on Ed's "reasonable belief" that he had been
properly authorized to cultivate by the city of Oakland.

If the 9th Circuit eventually rules that 885(d) does indeed apply to city
or state-ordained cannabis operations, it would be like driving a tank
through the Berlin wall of prohibition. Cities from Arcata to San Diego
would start grow-ops. Attorney General Ashcroft would undoubtedly appeal
to the U.S. Supreme Court. Congress might have to reword the Controlled
Substances Act, and in the process, marijuana's status as a Schedule-1 drug
- - dangerous, with no medical utility-would be debated... Things could get
interesting.

Rosenthal's appeal brief will also challenge the propriety of Assistant
U.S. Attorney George Bevan's dialog with the grand jury that produced the
initial indictment. Unlike the jurors who heard the case in January '03,
the grand jurors were aware that Rosenthal was growing for Bay Area
cannabis clubs. The defense charges that Bevan misled the grand jurors by
seeking to allay any fears that indicting Rosenthal would cut off the
supply of cannabis to Californians entitled to use it medicinally,

Another issue to be raised on appeal involves Breyer's ruling that the
conduct of jurors Marney Craig and Pam Klarkowski did not constitute
grounds for dismissal. Craig had asked a lawyer of her acquaintance whether
she could vote her conscience if it clashed with the judge's instructions.
The lawyer/friend's answer had been an unequivocal, "No. You must obey the
judge." Craig relayed this fact to Klarkowski as they drove to court on
the morning deliberations were to begin. Under the relevant federal rule of
evidence, 606 (b), the improper influencing of jurors during the course of
a trial can be grounds for dismissal.

The 9th circuit typically takes a year to a year and a half to rule on
appeals such as Rosenthal's. Their ruling on the applicability of 885(d)
in the Oakland CBC case will probably precede a decision re Rosenthal, but
appeals move faster in criminal than in civil cases.

Riordan expects the prosecution to appeal Breyer's "downward departure"
from a mandatory-minimum sentence of six-and-a-half years. The issue would
be whether Rosenthal's status as an employer at the grow-op disqualified
him from receiving any leniency. On this question Riordan does not expect
Breyer to get reversed.

SECOND ITEM Ed Enters the Spin Cycle

Pronouncements on the meaning of Ed Rosenthal's light sentence soon
emanated from our leaders within the Beltway.

"'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," said Keith Stroup, executive director of the
National Organization for the Reform of Marijuana Laws, to Bob Egelko of
the S.F. Chronicle.

The longtime director of NORML should know that just as there's no such
thing as a war on drugs -it's a war on certain people who use certain
drugs-there's no such thing as a war on terrorism. Terrorism is a tactic to
which people who are desperate to the point of madness may turn. Additional
"law enforcement resources" are never going to solve the socioeconomic
problems that give rise to terrorism. Next time you're giving advice to
law enforcement, Keith, tell them to go after the white-collar criminals
who cost us our savings and are about to take away our social security.

"The Bush administration's prosecution of Ed Rosenthal was a political act
masquerading as federal law enforcement," said Ethan Nadelmann, executive
director of the Drug Policy Alliance, to Hil Anderson of UPI. "Judge
Breyer's decision today sends a powerful message that the criminal justice
system cannot be used to pursue crass and inhumane ideological ends."

It is hard to imagine prosecutors from Ashcroft on down revising their
charging decisions because a federal judge in gay San Francisco gave
well-connected Ed Rosenthal a slap on the wrist. By describing a given
event in terms of its "message," the commentator untethers himself from
what actually was said, or written, or done, and is free to blither
away. In a courtroom in San Francisco on June 4 Judge Charles Breyer
described the Rosenthal case as unique and emphasized that, given how
highly publicized it had been, future defendants could not claim they
thought a city ordinance entitled them to grow marijuana. Breyer was
sending a clear message that next time he takes his wife to lunch at
Lulu's, he expects the usual glances of admiration, not disapproving glares.

The word "signal" can be substituted for "message." Stroup was quoted on
the BBC news, "It sends a strong signal to the federal government that they
should reconsider their current program of arresting patients and
caregivers in California."

One of the Chronicle's resident righties, Deborah Saunders, wrote that
"Breyer sent the dangerous signal that if you don't like a law, you don't
have to obey it." In Saunders' version of the case, Ed had defied the law;
in reality he claimed to be operating under its protection. "Call me
old-fashioned," wrote Saunders, "but I remember when those who engaged in
civil disobedience expected to be punished and accepted it." Nobody calls
you old-fashioned, Deborah; what we call you is "off."

Josh Richman of the Oakland Tribune seemed confused by a doubly incorrect
line of Stroup's. "Breyer 'has made a distinction between someone growing
marijuana for medical purposes and somebody growing marijuana as a drug
dealer,' Stroup said, denoting 'a slap in the face to the Bush
administration and its head-in-the-sand position that marijuana has no
medical use.'" How can you slap somebody in the face when they've got
their head in the sand?

Richman then quoted Bruce Mirken, communications director for the Marijuana
Policy Project, saying, "For all practical purposes, what Judge Breyer did
today was overturn the federal law banning medical marijuana." How's that?
As if to explain, Mirken added, "The whole reason Ed Rosenthal was
prosecuted is that federal law doesn't recognize anything extraordinary or
even any difference between seriously ill people and their caregivers, and
common drug dealers."

Do Keith Stroup and Bruce Mirken really think that the "common" marijuana
dealer is more deserving of jail time than the high-falutin' California
caregiver? If so, shame on them. If not, shame on them for pandering to a
mythically respectable mainstream. Ed Rosenthal, in whose support they
were ostensibly speaking, had just gotten through telling his supporters
outside the courtroom, "The federal government makes no distinction between
medical and recreational marijuana -and they're right!"

Egelko also quoted Robert Kampia, executive director of the MPP, who "said
Rosenthal's case 'will be seen as the tipping point, the moment when it
became obvious the law had to change.'"

"The tipping point" is the phrase that Ed himself has frequently employed
to describe the significance of his case. It's the title of a book by
Malcolm Gladwell, a fashionable New York science writer whose specialty is
regurgitating press releases from pharmaceutical manufacturers. Gladwell
took Frederick Engels' observation that at a certain point, quantitative
changes result in qualitative changes, and repackaged it all the way to the
bank.

The New York Times story on the Rosenthal sentencing reflected a basic
misunderstanding of the case. Dean Murphy wrote, "Though the Oakland
ordinance is permitted under a 1996 California state proposition, there is
no provision for growing marijuana under federal drug laws." But
Rosenthal's 885(d) defense -which will now be weighed by the appeals
court- asserts there was and is a provision for growing marijuana under
federal law, right within the Controlled Substances Act itself.

Although the working reporter has to ride the rap, blame should reside with
the editorial decision-makers. The medical marijuana movement is a complex
story, with inter-related legal, political, and scientific aspects. The
Times long ago should have assigned reporters to it as a regular beat,
instead of forcing them to educate themselves in a day. Murphy should have
been assigned to report the Rosenthal trial in its entirety, not just to
weigh in at the beginning and the end. The system itself encourages
superficial understanding and reporting. It forces the journalist to take
the packet from the p.r. person and to hurriedly call a couple of "experts"
whose phone numbers and e-mail addresses are conveniently provided therein
(not forgetting to contact at least one spokesman from the "other side" for
the sake of "balance")... Meanwhile, inside the Beltway, the experts have
got their pontifications packed into soundbites and ready to launch...

P.S. We are trying to verify a rumor that back in January reporter Jayson
Blair convinced two top New York Times editors that Ed is the estranged
nephew of retired executive editor A.M. Rosenthal -hence the favorable
coverage.