TWIST ENDS MEDICAL MARIJUANA CASE

1-day jail term stuns observers

SAN FRANCISCO - In a stunning decision, a federal judge on Wednesday
sentenced a man who grew marijuana plants for medical use to just 1 day in
prison, despite pleas from prosecutors who condemned all marijuana
cultivation as serious criminal behavior.

U.S. District Court Judge Charles Breyer said it was reasonable to assume
that Ed Rosenthal had been openly growing more than 100 marijuana plants in
the belief he was immune from federal prosecution. Under a provision of the
federal Controlled Substances Act, localities can deputize individuals to
immunize them from prosecution if they are acting in the interest of local
government.

Rosenthal, 58, an author and columnist for a magazine that supports
legalization of marijuana, had been deputized by Oakland to grow marijuana
for patients under the terms of an Oakland marijuana ordinance and a 1996
medical marijuana law passed by California voters.

As states allow the use of marijuana for medical purposes--nine do now--how
patients obtain the drug becomes a point of contention with the federal
government. Cultivation and distribution of marijuana remains a felony under
federal law.

Breyer said the Rosenthal case had "extraordinarily unique circumstances"
and emphasized that his sentencing probably could not be used as a precedent
in other medical marijuana litigation.

"Others are now on notice that a state or municipality cannot legally
authorize medical marijuana," the judge said.

Rosenthal left the courtroom a free man, having already served a day in
prison. The Oakland resident also must pay a fine of $1,300 and will be on
probation for 3 years.

"This is Day One in the crusade to bring down the marijuana laws," said
Rosenthal after he was sentenced. "All marijuana should be legal."

His attorneys said they still would appeal Rosenthal's conviction on three
counts of conspiracy to manufacture marijuana, manufacturing more than 100
marijuana plants and maintaining a place to grow the plants. The first two
charges call for a minimum sentence of 5 years in prison.

"The appeal is the critical part of this," said attorney Dennis Reardon.

In refusing to impose the minimum sentence, Breyer invoked a so-called
safety valve law that allows a lesser sentence under certain circumstances,
such as if the defendant is a non-violent, first-time offender.

"He recognized that Ed shouldn't be incarcerated for what he did," said
Judith Appel, deputy director of legal affairs for Drug Policy Alliance, a
national group advocating changes in drug laws.

In court, federal prosecutor George Bevin called Rosenthal's marijuana
operation "a cash crop" and "a business" and asked for a sentence of 6 1/2
years. The U.S. attorney's office did not comment after the sentencing.

Breyer's decision was surprising because he earlier had ruled that medical
marijuana could not be used as a legal defense at trial because the federal
government does not recognize states' medical marijuana laws.

After the January trial, many jurors expressed outrage that they had
convicted Rosenthal without hearing all the evidence.