DEFENSE GETS KEY RULING IN POT TRIAL

In a surprising development, the federal judge presiding over the trial of
medical marijuana guru Ed Rosenthal has decided to allow Alameda County
Supervisor Nate Miley to testify on the pot advocate's behalf.

Miley, who became a supervisor in 2000, is expected to say that while a
member of the Oakland City Council, he took a tour of the Mandela Parkway
building Rosenthal allegedly used to grow marijuana. Miley is expected to
testify that he worked closely with Rosenthal on the implementation of
Proposition 215, which legalized medical marajuana in California.

Judge Charles Breyer at first said he would not allow Miley to take the
stand, but changed his mind Wednesday after Assistant U.S. Attorney George
Bevan suggested Rosenthal had tried to hide his marijuana crop.

Bevan said Rosenthal "did not publicize at all, outside of an inside group
on the Oakland City Council, what he was doing."

"Mr. Rosenthal has even written a book on various ways to conceal the
growing of marijuana from police. I've read it," said Bevan, referring to
the book "Ask Ed's Marijuana Law: Don't Get Busted."

Bevan's comments, which took place after the jury had been dismissed for
the day Wednesday, could be seen as a major opportunity for defense
lawyers, who have been eager to introduce into the trial the idea that
Rosenthal was openly growing marijuana in accordance with state medical
marijuana laws.

Rosenthal had an Oakland business permit for the building and had discussed
the facility with various city officials, including Miley and fire inspectors.

Breyer warned prosecutors that they would be opening a can of worms trying
to prove that Rosenthal was running a clandestine operation "with a
consciousness of guilt."

"You can't have it both ways, Mr. Bevan," said the bow-tied judge, whose
brother is Supreme Court Justice Stephen Breyer. "If you're going to argue
that Mr. Rosenthal took steps to conceal the activities, they would be
entitled to bring in evidence that he did not do so."

Miley is one of many character witnesses the defense had hoped to call up.
When defense attorney Robert V. Eye first said he hoped to call Miley to
address Rosenthal's efforts to reform marijuana laws, Breyer lashed out at him.

"I don't doubt for a minute that Mr. Rosenthal believes strongly in that,
but I don't believe it's a pertinent character trait," said Breyer. "You
could be of good character and want to reform marijuana laws or you could
be of bad character and want to reform marijuana laws."

But the judge's tone changed with Bevan's assertion that Rosenthal had
acted surreptitiously.

"If what you are going to do is prove consciousness of guilt, I would allow
them to rebut," he said.