GAG ORDER REQUEST DENIED IN MEDICAL MARIJUANA CASE

Constitution Trumps Unproven

SAN FRANCISCO -- A federal judge on Thursday refused a prosecutor's request
for a gag order in the trial of pro-marijuana author and activist Ed
Rosenthal of Oakland.

U.S. District Judge Charles Breyer said there's no evidence jurors have
been biased by extensive media coverage of the trial so far.

The case is "part of a larger public debate, and he's not going to muzzle
that debate," said attorney Jim Wheaton, the First Amendment Project
co-founder and senior counsel who argued against the gag on Rosenthal's behalf.

Assistant U.S. Attorney George L. Bevan Jr. had sought the gag order
Wednesday after several consecutive days of intense coverage by local and
national media. He feared the admonition Breyer gives jurors every day
about not reading or watching any media accounts of the case would be
insufficient, and that jurors' viewpoints would be swayed.

But Breyer said Thursday that Bevan hadn't demonstrated enough risk of bias
to outweigh the damage a gag order would do to press and speech freedoms
guaranteed by the First Amendment.

Rosenthal, 58, was among those arrested last February when Drug Enforcement
Administration agents raided his home and his indoor marijuana cultivation
site in Oakland, as well as the Harm Reduction Center medical marijuana
club in San Francisco.

He's charged with conspiracy, cultivation and maintaining a property for
cultivation. If convicted, he could face life in prison.

Despite Breyer's acknowledgement of the case's place in the bigger public
debate over medical marijuana, the judge has barred all testimony and
evidence showing Rosenthal was growing marijuana under the auspices of
California law and Oakland ordinances. Federal law still bans all marijuana
cultivation, possession and use, Breyer has ruled, and so mention of
Rosenthal's motive is irrelevant and inadmissible.

In his unsuccessful attempt to get the gag order, Bevan cited a new
billboard campaign by a coalition of medical marijuana advocates as
evidence of the means by which jurors might become biased. Even as
Rosenthal's trial continued Thursday, that billboard campaign was being
launched in Oakland. The billboards depict 8-year-old Ashley Epis holding a
picket sign which reads, "My dad is not a criminal." Her father, Bryan Epis
of Chico, recently was sentenced to 10 years in federal prison for growing,
using and providing marijuana under the auspices of state law.

Rosenthal's trial continues Wednesday, when Bevan is expected to conclude
his case and Rosenthal's lawyers are expected to make their opening statement.