HOW THE FEDS DUPED JURORS IN MARIJUANA TRIAL

WASHINGTON -- It is not every day that a jury apologizes to a man it
has just convicted.

So Ed Rosenthal should feel honored that seven of the 12 jurors who
convicted him on three federal counts of marijuana cultivation and
conspiracy are now apologizing to him and calling for their own
verdict to be overturned on appeal. Five of them appeared and two
others had statements read at a news conference Tuesday outside a
courthouse in San Francisco.

They wanted to let the world know that they felt misled by the federal
judge and prosecutors who did not allow the defense to raise issues of
state and local medical marijuana laws in Rosenthal's trial.

Rosenthal, 58, a well-known author, magazine advice columnist and
advocate for the medicinal use of marijuana, was growing the grass for
medicinal purposes. California is one of eight states (Oregon, Maine,
Washington, Hawaii, Alaska, Nevada and Colorado are the others) that
have passed laws to allow the sick and dying to smoke or grow
marijuana with a doctor's recommendation.

Rosenthal was deputized by the city of Oakland to provide marijuana
for those whose doctors recommend it. Ironically, the program is
intended to help the ill and dying avoid the street dealers that the
federal drug czar's current multimillion-dollar TV ad campaign (Your
dollars at work, fellow taxpayers!) is warning us against.

But none of that highly pertinent information about Rosenthal's
methods or motives was allowed to reach the eyes or ears of his jury.
U.S. District Judge Charles R. Breyer barred Rosenthal's defense from
mentioning the state law because Rosenthal was indicted under federal
law, which does not allow the growing of marijuana for any purpose.

As a result, Rosenthal was prosecuted like a member of the Soprano
crime family, convicted and faces a minimum of five years in prison
when he is sentenced in June.

"Last week, I did something so profoundly wrong that it will haunt me
for the rest of my life," Marney Craig, a property manager who served
as a juror in the Rosenthal trial, wrote in a later San Jose
Mercury-News op-ed. "I helped send a man to prison who does not belong
there."

It is no wonder that the jurors feel like, if I may coin an old
colloquialism, they got took. After all, they were.

And, of course, it is easy to see why prosecutors did not want
Rosenthal's motives to be revealed. In California, which legalized
medicinal use of marijuana in 1996, it must be quite difficult to find
a jury of 12 people who would convict a man whose only criminal
offense was to provide the weed to the sick and the dying.

Californians are hardly alone in this nuanced view. Although fewer
than 40 percent of Americans would legalize marijuana for recreational
use, recent polls have found that about 80 percent support legalizing
it for medicinal use.

Even presidential candidate George W. Bush told reporters in October
1999 that on the medicinal marijuana question, "I believe each state
can [make] that decision as they so choose."

Or, maybe not. President Bush's administration is going after
California's medicinal marijuana providers with a zeal that is
appropriate for the pursuit of Colombian drug cartels.

Despite California Atty. Gen. Bill Lockyer's pleas to former Drug
Enforcement Administration head Asa Hutchinson last year, the DEA has
stepped up raids on state-sanctioned cannabis growers and treatment
facilities.

In July, Bryan James Epis, 35, organizer of a cannabis buyers club in
Chico, was found guilty of charges similar to Rosenthal's and
sentenced to 10 years. His conviction has been appealed.

And watch what you say, buddy, as well as how you say it. In December,
Jeff Jones, executive director of the Oakland Cannabis Buyers'
Cooperative, was found guilty of "an attempt to influence jurors," in
the words of U.S. Magistrate Judge Peter A. Nowinski, simply for
passing out leaflets in support of Epis outside the courthouse.

Nowinski dismissed Jones' free speech defense. After all, there's a
war on drugs to be fought. Jones' sentencing is scheduled for Feb.
27.

With antics like these, prosecutors might find it harder to get any
kind of a marijuana conviction out of a jury, whether it is
medicinally related or not.

Who, I wonder, will stop this madness?

For starters, Congress should move the country toward sanity by taking
the long overdue step of downgrading marijuana from Schedule I of the
Controlled Substances Act. It makes no sense for cannabis to be ranked
with heroin, LSD, morphine and other drugs in Schedule I.

Or does anyone really believe marijuana is more potent, dangerous and
devoid of redeeming medicinal value than cocaine, opium, codeine,
injectable methamphetamines and other Schedule II drugs?

Perhaps, after that step, we might be able to handle marijuana as a
properly controlled hazardous drug, instead of a political football.