ROSENTHAL TRIAL SHOWS CRAZY LAW

How Not to Write a Law

The Case Of Ed Rosenthal Is As Schizophrenic As Prop. 215; But It's No More
So Than Voters' Attitude About Pot.

Don't bogart those pot cases, Judge Breyer.

The choreography certainly was impressive. On the morning of February 12,
2002, officers from the Drug Enforcement Administration simultaneously
raided a San Francisco cannabis club called the Harm Reduction Center, the
private homes of Bay Area medical pot activists, and a West Oakland
warehouse where High Times columnist and author Ed Rosenthal grew hundreds
of plants for critically ill patients. A few hours later, as Rosenthal
stewed in a cell, Bush administration drug czar and longtime Clinton
antagonist Asa Hutchinson strutted onto the stage at San Francisco's
Commonwealth Club and compared the federal war against medicinal marijuana
to a University of Arkansas Razorback game, in a speech titled "Let's Don't
Punt on the Third Down." But he'd already made his point.

Eleven months later, Hutchinson was off chasing other headlines, but
Rosenthal faced multiple drug and conspiracy felonies.

His lawyers planned to base their defense on his having been deputized by
the City of Oakland to distribute pot. But Federal Judge Charles Breyer
assiduously quashed all mention of Proposition 215 and medicinal marijuana,
stripping the defense of its only argument.

After the jury found Rosenthal guilty, four jurors stood alongside the
defendant at a press conference and declared that they'd never have
convicted Rosenthal if they'd known who he really was. Nonetheless, he now
faced a minimum of five years in a federal prison.

Then war approached, and reporters forgot about Rosenthal. But his lawyers
toiled on, and while no one paid attention, attorneys Joe Elford and Bill
Simpich made a spectacular claim in a brief they filed in federal court.

Not only had the trial jurors been manipulated into a conviction they now
regretted, but federal prosecutor George Bevan had actually lied to the
grand jury to get the indictment in the first place. "I'm more upset by the
grand jury than by anything," Simpich says. "It makes the trial a joke."

Indeed, this whole affair has been one long comedy of errors. Although
Judge Breyer has only released a small portion of the transcripts, what
little has been made public indicates that at least one of the grand
jurors, and possibly several, had profound reservations about indicting a
man who just wanted to provide relief to people in pain. More importantly,
this case reveals a mother lode of bad faith and moral ambiguity, and not
just on the part of the prosecution. Everything associated with medicinal
marijuana -- the activists and their lawyers, the prosecutors, even the law
itself -- is tainted with hypocrisy.

Prosecutor Bevan tried to lure the grand jury into somnolence with
assurances that the Ashcroft Justice Department isn't trying to wipe out
medicinal marijuana everywhere it takes root. Rosenthal's lawyers
overstated Bevan's bad faith and downplayed the quasi-criminal element in
the medicinal pot movement. The activists themselves occupy a twilight zone
of legitimacy, in which many players are both health-care activists and
drug dealers. Proposition 215 is so terse and vaguely worded that legal
scholars are still trying to figure out what's legal and what's not.

This melange of half-truths and contradictions all stems from the public's
intellectual ambivalence about pot; we don't want to persecute people for
getting high, but we aren't ready to accept it either. And until we make up
our minds, we'll be doing this dance in perpetuity.

The grand jury was originally conceived as a bulwark against prosecutorial
excess, in which citizens can examine the evidence, ask questions, and even
argue with the prosecutor over whether a trial is justified. These days,
it's a mere formality.

No judge or representative for the defense may attend the proceedings; the
prosecutor is the only court officer on stage, and he can coax or
manipulate the grand jury into, as the saying goes, "indicting a ham sandwich."

But the grand jury in Rosenthal's case didn't go without a fight. Because
Bevan intended to call DEA agent Jon Pickette as a witness at Rosenthal's
trial, he had to give the defense all previous legal documents pertaining
to Pickette, including his grand jury testimony. Defense lawyer Bill
Simpich claims that as he lay in bed reading the testimony, he sat bolt
upright in shock.

Two weeks after the raids, Bevan had called Pickette before the grand jury
and led him through the chain of evidence.

As he built his case, members of the jury contested not only his
characterizations of Rosenthal and his colleagues, but the very legal
foundation of the indictment he was asking them to return.

Just as juries throughout California have refused to convict medicinal
marijuana distributors despite a preponderance of evidence, at least some
of these men and women may have been inclined to ignore federal law and let
Rosenthal go free.

Most of the arguments between the prosecutor and the grand jury involved
the absurdly imprecise law that is Proposition 215. That initiative may
allow people to possess medicinal marijuana, but whether it allows them to
acquire it is another question, one still being hashed out in courts
throughout the state.

As Bevan insisted that state law continues to prohibit people from
obtaining marijuana, jurors wondered how exactly patients are supposed to
use pot if they can't buy it.

When Bevan walked the grand jury through a description of Rosenthal's
operation, one juror challenged the prosecutor's suggestions that Rosenthal
and his colleagues were doing something shady -- perhaps prompted by prior
testimony that Rosenthal has invited the fire department to inspect his
warehouse. "These cannabis clubs are established to provide medicinal
marijuana to people who get an okay from some public entity to go in and
buy doses of marijuana," this juror said. "Where are these cannabis clubs
supposed to acquire their inventory? Do these growers have to get a license?

They don't seem to be hiding anything. ..."

"Let me answer that question," Bevan said, "It's a good question.

The state law allows the Compassionate Use Act of 1996, sometimes known as
Prop. 215 ..."

"Most of us probably voted for it," a juror reminded him.

"Whatever, that's good," Bevan said. "The fact of the matter is it allows
marijuana for your personal use and to be cultivated, if you are the
primary caregiver. ... A cannabis club does not have the authority under
state law to distribute cannabis or marijuana.

And so then you say, well, there's a disconnect here."

Another juror spoke up soon thereafter. "If you don't want to grow your
own, and your caregiver doesn't want to grow your own, and you have one of
the four classifiable diseases to use it medicinally, what alternative do
you have for getting that marijuana?"

"In answer to your question, there is no legal way under California law to
acquire marijuana for your own personal use," Bevan said. "You are doing it
basically at your own risk, and with the -- at least in the environment in
this district, probably nothing would happen to you."

So you can have pot, but you can't obtain it -- except that you can,
because no one really enforces pot laws in the Bay Area anymore.
Ultimately, Bevan didn't really have to debate Proposition 215 with his
jurors, since only federal law was at issue.

He did this in part to assuage the misgivings of grand jurors who clearly
wanted to preserve patient access to medicinal pot and worried that if
people couldn't get it from, as one juror put it, "the Rosenthals of the
world," they would be condemned to unremitting pain and nausea.

The jurors continued to pick at the prosecutor's case. When Pickette
described a "hidden door" to a secret grow room in the Harm Reduction
Center's basement, only to admit that someone had just shoved a bookcase in
front of the door, a juror remarked, "Very undramatic," and "not like Harry
Potter." As Bevan suggested that Rosenthal's colleagues were involved in
drug dealing for profit, a juror pointedly asked if it was true that
Rosenthal was only interested in pot as medicine.

One juror asked whether this case was "blazing new ground" and establishing
precedent for a new crackdown on medicinal marijuana. And when Bevan was
walking the grand jury through the scale of addictive drugs, one juror
asked where tobacco and alcohol fall on the spectrum.

Bevan answered, "I don't believe that tobacco and liquor is a
drug-controlled substance as defined under 'controlled substance,'"
prompting the forewoman to joke, "That's what the senators use."

Throughout the day, grand jurors expressed considerable skepticism about
the prosecution's case. But they indicted anyway, perhaps with the
expectation that Rosenthal would be able to present his side of the story
at trial.

But that's exactly what didn't happen eleven months later.

After reading the transcript, Rosenthal's attorneys filed a motion to
dismiss Rosenthal's indictment. They claimed that Bevan, faced with a grand
jury sympathetic to the defendant and worried about patient access to pot,
repeatedly lied and misled the jurors in order to reassure them that
medicinal marijuana would remain safe and easy to get. "When the grand jury
persisted, the prosecutor misstated the law and, most troubling of all,
informed it that the federal government would not target the cannabis clubs
and that the sick and dying would continue to receive their medicine," they
wrote. "The prosecutor assuaged the grand jury's expressed concern with an
assurance he knew to be false" [italics theirs].

The heart of the defense's claim rests with one sentence by Bevan. As
jurors began to express concerns about sick people barred from cannabis
clubs, Bevan told them, "We have not sought to shut down the operations of
the club." Rosenthal's lawyers argued otherwise: "The truth of the matter
is that the federal government had sought to shut down the operations of at
least six clubs through a civil injunctive relief action filed in this court.

More specifically, just days earlier, the government raided the Harm
Reduction Center, stripped it of all its inventory and records, and
padlocked the door. ... The prosecutor's false assurances to the grand jury
on this point, calculated as they were to assuage their concerns for the
sick and dying, constitutes the most flagrant and prejudicial misconduct of
all."

But was this really a lie? The prosecutor refused to comment for this
story, and the brief he filed in response barely dwells on this allegation,
beyond stating that "the prosecutor did not in any way distract or deceive
the grand jury." But former Harm Reduction Center employee Bob Martin
claims that the center was back open for business that very day. "When they
raided the Harm Reduction Center, it opened two hours later," he. "It never
was shut down." Other local pot activists backed up Martin's story,
although they admit they didn't see it with their own eyes.

Rosenthal's attorneys hedged a bit when confronted with Martin's claims.
Yes, the club was reopened, they concede, but not by the original owners.

Some "squatters" apparently snuck in and renamed the club the Healing Leaf.
In other words, the club's doors may have been open, but the guys who
signed the lease either sat in jail or fled the country.

And that, they say, constitutes an effort to shut down the club.

Martin plays another important role in this case. When the feds hit
Rosenthal with the conspiracy charge, they needed someone who actually had
seen him deliver marijuana plants to the club. They subpoenaed Martin, who
sang like a bird and helped seal Rosenthal's fate. Consequently, many
medicinal pot activists regard Martin as a snitch, though he says his
testimony was coerced, and caused him much anguish. Last month, when the
National Organization for the Reform of Marijuana Laws held its annual
conference in San Francisco, Rosenthal allegedly had Martin thrown out of
the event for his role in the prosecution, Simpich says.

But Martin got something very valuable out of the deal: immunity.

At the very moment he testified against Rosenthal, Martin was running his
own cannabis club in San Francisco, handing out dope to the masses. He
openly talked about plans to start two more clubs in the next few months --
the very acts for which Rosenthal faced years in prison. Prosecutor George
Bevan not only granted Martin immunity in exchange for his testimony, he
apparently did nothing to curtail his witness' ongoing illegal business.

But that's par for the course when it comes to medicinal marijuana. Nothing
seems to make sense in the wake of Proposition 215; patients can own
cannabis but not acquire it, one branch of government sanctions pot while
another makes war on it, and one drug distributor goes to prison while
another seemingly has the federal government's permission to operate in the
open. And everyone knows that the medicinal marijuana campaign is at least
40 percent bullshit, a convenient way for some people to get high while
wrapping themselves in the moral cloak of medical necessity.

Perhaps the most absurd consequence of Proposition 215 is this: Far from
reducing the criminality associated with the drug trade, the federal
government's sporadic crackdown on medicinal marijuana actually plays into
the hands of criminals.

From Ed Rosenthal, to the Wo/Men's Alliance for Medical Marijuana in Santa
Cruz, to the Los Angeles Cannabis Resource Center, the feds have targeted
pot distributors that secured business licenses and had the blessings of
local authorities. If the DEA continues to go after the honorable cannabis
suppliers, the ones who work with city agencies and keep criminals out of
the business, the field will be cleared of good-hearted citizens, and the
vacuum filled by that old bogeyman of the drug war, the drug dealer.

Amid all these ambiguities, the only sure thing is that Ed Rosenthal will
be sentenced to prison on June 4. None of the defense team's claims moved
US District Judge Charles Breyer to throw out the indictment or grant a new
trial.

Having diligently excluded all references to Proposition 215 during the
trial, Breyer has earned the animosity of pot activists throughout the
state, his centrist liberal credentials notwithstanding. As Rosenthal's
lawyers prepare his appeal, they are all too aware of one last irony:
Should this case go to the Supreme Court, Breyer's involvement virtually
guarantees that they will lose. Rosenthal will need all five of the less
dogmatically conservative justices, and one of them happens to be Stephen
Breyer, the brother of Charles Breyer. Justice Breyer will surely recuse
himself, and Rosenthal's fate could then be sealed by William Rehnquist,
Antonin Scalia, Clarence Thomas, and Anthony Kennedy. Although their
professed respect for states' rights ought to favor the defense, their
instinctive antipathy to dopers like Rosenthal might as well make them the
Four Horsemen of the Apocalypse.

Rosenthal doesn't find any of this particularly amusing.

A Bronx native and former Yippie, he's edgy and abrasive, the kind of
hippie who, as Abbie Hoffman once said, "held his flower in a clenched
fist." When it comes to unkind words, he's got plenty in reserve and deals
them out to everyone arrayed against him, especially Charles Breyer. As he
faces prison, it galls him that Breyer, a scion of the San Francisco
Democratic Party establishment, gets to hobnob with his friends in the
liberal intelligentsia while selling out his own professed values. "Look at
his record on civil liberties; he's no darling liberal," Rosenthal growls.
"He and his brother want to parade in San Francisco society as if they're
part of it, but they're really part of the federal juggernaut and
everything it's doing to restrict civil liberties."

Last week, the brothers Breyer assembled before the elite of San Francisco,
basking in the admiration of Northern California's legal aristocracy. They
had come to help out the San Francisco Historical Society, which charged
$75 a head for the privilege of hearing the brothers in conversation on the
nineteenth floor of the federal building. More than one hundred judges,
lawyers, and clerks sat in the ceremonial courtroom, struck dumb by the
easygoing majesty of Stephen Breyer and his younger, less cosmopolitan brother.

In true City Arts and Lectures fashion, the two Breyers sat before the
audience in leather-backed chairs, trading quips beneath the seal of the
United States of America.

Activists with Berkeley's Cannabis Action Network had planned to crash the
party, but they were nowhere to be found as Charles Breyer, to the
tittering delight of the crowd, asked his opening question: "Do you think
mom loved me more than she loved you?" Stephen Breyer smoothed the wrinkles
from his purple silk shirt and declaimed about the inner workings of the
Supreme Court, while Charles, avuncular and folksy in his glasses and bow
tie, pitched softballs to his brother. The scene was suffused with power
and decorum, replete with reminders that at this level of authority, the
real world upon which these two men have such a profound effect seldom need
touch them at all. "Contrary to what you will read in the law books, I
believe that we are much more like a European court, where you answer
questions, rather than dealing with cases, than is commonly recognized,"
Stephen Breyer opined. "We really take cases to answer a legal question.

And if we cannot answer that single legal question, we shouldn't take the
case." Stephen even offered some abstract misgivings about mandatory
minimum sentences, the very kind that now hang over Rosenthal's head.

At the reception afterward, waiters glided by with trays of brie and wine,
and federal marshals swept the room with their eyes. Older attorneys
reminisced about the times they litigated with the Breyers' father, and
young suits hung back, waiting to pay their respect.

I finally got my chance to ask Stephen Breyer a question: When you have to
recuse yourself from a case presided over by your brother, does it ever
worry you that doing so might change its destiny? "I'm a professional, so
is he; we just go on the best we can," Breyer said and broke away in search
of another hand to shake.

Charles was similarly evasive. "We don't sit around and talk about the
Constitution," he said. "He has his job, and I have mine."

As the two Breyers move among their admirers, and John Ashcroft searches
for yet another Rosenthal to persecute, Rosenthal awaits his fate in his
Oakland warehouse.

At this moment, all the power and folly of the war on drugs, with its
crusaders, villains, and victims, rests on the fulcrum of these two brothers.

Yet they're strangely ineffectual; Charles Breyer reportedly said he had no
choice but to exclude Rosenthal's defense, and Stephen Breyer's expected
recusal in any appeal to the Supreme Court, as well as an upcoming case
involving the Oakland Cannabis Buyers Cooperative, places the fate of
medical marijuana in the hands of his more conservative colleagues. That
these two professed liberals should find themselves at the center of the
Bush Administration's war on drugs, yet be utterly powerless to mitigate
it, is the final absurdity of Proposition 215.