SMOKE CLEARS IN POT CASE

Hard Fought Federal Prosecution Ends With One-Day Sentence for Medical
Marijuana Grower

When U.S. District Judge Charles Breyer handed marijuana guru Ed
Rosenthal a stunning one-day sentence Wednesday, he turned what had
looked like a victory for the federal government into a celebration
for medical marijuana supporters.

Breyer's announcement of the time-served sentence caused Rosenthal
supporters in the packed San Francisco courtroom to erupt in cheers. A
parking lot across from the federal courthouse became the stage for a
full-throated condemnation of Attorney General John Ashcroft, complete
with loudspeakers and larger-than-life puppets. And one repentant
juror, on hearing the news, burst into tears of joy.

"I can't say that the cause isn't further down the road now than it
was," said Rosenthal attorney Dennis Riordan, who was hired after his
client's January conviction.

A smiling San Francisco District Attorney Terence Hallinan, a big
supporter of the state's medical marijuana law, said Breyer's decision
"did justice."

"Hopefully, this will make [the Justice Department] think about what
they're doing," Hallinan said.

But Rosenthal - despite the slap on the wrist - continued his
unabashed criticism of the judge outside the courtroom.

"This judge has no honor," he said after a rally in the parking lot
rented for a post-hearing press conference. "If he had honor, he would
have dismissed this case in the beginning.

"He didn't want to give me a light sentence," Rosenthal continued. "He
was forced to do it by public opinion."

Riordan said his client still plans to appeal Breyer's pretrial
rulings barring a medical marijuana defense. Breyer wouldn't let
Rosenthal's lawyers tell the jury he was growing the plants for San
Francisco's HARM Reduction Center.

Riordan predicted the government would appeal Breyer's decision to
depart downward from the mandatory minimum sentence. The U.S.
attorney's office had no comment. Assistant U.S. Attorney George Bevan
Jr. prosecuted the case.

Riordan went out of his way to distance himself from his client's
comments about Breyer. On appeal, Riordan is likely to argue that
Rosenthal should have been allowed to present a medical marijuana
defense since his operation at an Oakland warehouse was approved by
city officials. The approval gave Rosenthal a reasonable expectation
that what he was doing was legal, Rosenthal and his supporters have
argued.

The trial was cast as a clash between federal drug laws and
California's Proposition 215, a medical marijuana initiative similar
to those passed in several states. The government argued that
Rosenthal was in clear violation of federal law, but United States v.
Rosenthal, 02-053, gave medical marijuana advocates a national stage
on which to advance their position.

Critics of the prosecution placed heavy pressure on Breyer to go easy
on Rosenthal. Attorney General Bill Lockyer wrote asking for a light
sentence, as did eight members of a jury that took less than a day to
convict him. The New York Times used its editorial pages over the
weekend to urge no prison time in a case it called a "miscarriage of
justice."

Charles Sackett III, the foreman of the jury that convicted Rosenthal,
said Breyer's decision was "right on. ... At one point he paraphrased a
letter we sent him, so we're very pleased about that. He listened to
us."

Later, Sackett embraced Rosenthal. "I'm so happy for you, sir,"
Sackett told the bespectacled author of several books on marijuana
cultivation.

The government argued that Rosenthal should be sentenced to at least
five years, and that as a leader of a marijuana operation he is not
eligible for a so-called "safety valve" departure below the mandatory
minimum. The probation department found that he is eligible and
recommended a sentence of less than two years.

Riordan - the Riordan & Rosenthal (no relation) partner who was hired
after the conviction - said he was not surprised that Breyer
departed. "Judges agree with the probation department 90 percent of
the time," Riordan said.

But Congress recently signaled its dislike of downward departures.
Under the Feeney Amendment, a rider attached to the Amber Alert
legislation, Breyer will have to explain his departure in writing. The
explanation will be sent to federal court officials in Washington,
D.C., and made available to members of Congress.

Two calls to the Justice Department were not returned, but the Drug
Enforcement Agency was muted in its reaction.

"We did our job in a professional way. Our job is to conduct a
criminal investigation, take the dope off the streets and refer the
cases to the U.S. attorney's office for prosecution," DEA spokesman
Richard Meyer said. "What happens with it after that is out of our
hands."

The public regrets expressed by jurors raised the issue of jury
nullification, as several claimed that, despite the letter of federal
law, they never would have convicted Rosenthal if they knew he grew
medical marijuana. Present at Wednesday's sentencing was Godfrey
Lehman, an author of several books and pamphlets about jury rights who
said he was contacted by Sackett after the verdict. Rosenthal
supporters also posted billboards throughout the Bay Area reading:
"Free Ed. Free the Jury."

Rory Little, a Hastings College of the Law professor and former
assistant U.S. attorney, said he admired Judge Breyer for his handling
of the case.

"He stood very strong in the face of a lot of public criticism to
enforce the federal law," said Little, who supports the conviction but
said a long sentence is unnecessary. "He appears to have considered
the various purposes of punishment."