JUDGE DENIES GAG ORDER REQUEST IN PRO-MARIJUANA ACTIVIST'S CASE

Decision puts First Amendment

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. sought the gag order Wednesday
after several consecutive days of intense coverage by local and national
media. He feared the admonition that Breyer gives jurors every day about not
reading or watching any media accounts of the case would be insufficient,
and 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 acknowledgment 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 that 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.