THE FEDS PLAY BULLY IN OAKLAND

Many Americans first heard of marijuana grower Ed Rosenthal this past
February, when the jury that convicted him of three felonies (growing more
than 100 plants, conspiring to cultivate and maintaining a growing
operation) demanded that its verdict be overturned. Five panelists and an
alternate stood on the steps of the federal courthouse in San Francisco and
said they had been duped into sending a man who was not a criminal to prison.

What the hell happened?

Seven years earlier, California voters had approved Proposition 215. It
stated that sick people who had a doctor's recommendation could use
marijuana to alleviate pain, to relieve nausea that accompanies
chemotherapy, to restore appetite.

City officials in Oakland passed an ordinance designating a local cannabis
club as an official source for medical pot. It issued Ed Rosenthal a
license to grow and distribute the drug to a medical co-op. Rosenthal, who
has written 20 books on marijuana, took over an empty warehouse and
cultivated plants.

California's attorney general, Bill Lockyer, urged the Drug Enforcement
Administration to adopt guidelines on medical marijuana that would show "a
proper sense of balance, proportion and respect for states' rights." DEA
chief Asa Hutchinson shot him down: "Surely you are not recommending we
sidestep our country's long-standing practice of rigorous scientific
research before declaring a potentially harmful drug to be medicine. The
FDA has never in the past approved medicine by popular referendum." (What
Hutchinson didn't mention is that the feds must approve any study using
actual marijuana. So far they have refused to do so.) The DEA chief added,
without citing evidence, that "medical marijuana laws are being abused to
facilitate traditional illegal trafficking."

On February 12, 2002, the same day Hutchinson gave a speech in San
Francisco praising the war on drugs, federal agents raided Rosenthal's
warehouse. They seized 3163 plants and arrested the man who had grown them.
When Hutchinson boasted about the arrest during his speech, his audience booed.

A DEA spokesman told reporters: "There is no such thing as medical
marijuana. We are Americans first, Californians second."

U.S. District Judge Charles Breyer, brother of U.S. Supreme Court Justice
Stephen Breyer, caught the case. In pretrial hearings he ruled that the
defense could not mention Proposition 215. Further, the judge said, Oakland
officials could not testify that they had given Rosenthal a license. He
refused to let a county supervisor discuss the defendant's motives for
growing pot or describe the work he'd done for the city. Breyer also
blocked the appearance of several character witnesses.

In a pretrial motion, Rosenthal's lawyers argued for immunity, citing a law
that protects federal, state and local officials who possess or transport
illegal drugs as part of their jobs (e.g., taking evidence to court,
working undercover). The judge wouldn't have it. Congress intended the law
to protect cops, not caregivers. Breyer also prohibited a defense based on
the doctrine of "entrapment by estoppel"--that is, a traffic cop can't tell
you it's OK to cross against the light, then ticket you for jaywalking.

During jury selection, Breyer stacked the deck. He questioned 80 potential
panelists, weeding out those who had positive opinions about medical
marijuana, who had voted for Proposition 215 or who understood the conflict
between state and federal law and favored the former. These decisions
eliminated Rosenthal's defense before it even began.

Supporters paid for billboards emblazoned with the message COMPASSION, NOT
FEDERAL PRISON. Protesters stood outside the courthouse, their mouths taped
shut.

In his closing remarks, a prosecutor told the jury: "Cultivation of
marijuana is a federal offense. Period. Nothing else matters." As for the
vote on Proposition 215, the prosecutor said: "This is a federal courtroom.
It is not a polling place."

Judge Breyer's remarks were even more dismissive. The judge had told the
jurors to disregard the 1996 vote. "You are not to consider the purpose for
which the marijuana was grown. You cannot substitute your sense of justice,
whatever that is, for your duty to follow the law."

Jurors delivered the verdict the government wanted. Then they rebelled.
They told reporters that they had felt manipulated, intimidated and
controlled. One juror reportedly worried the judge would send them to jail
if they voted their conscience. When the panel realized it had been duped,
its foreman read a public letter of apology: "I fail to understand how
evidence and testimony that is pertinent, imperative and representative to
state government policy and regulation, as well as doctor and patient
rights, and indeed your family, are irrelevant to this case." Another juror
added: "I did something so profoundly wrong that it will haunt me for the
rest of my life. I helped send a man to prison who does not belong there."
So much for justice.

Judge Breyer will sentence Ed Rosenthal on June 4. The man with the
benevolent green thumb faces at least five and as many as 85 years in
federal prison.

Asa Hutchinson has moved on to tackle homeland security.