JUDGE WEIGHS POT-TRIAL GAG

The drug cultivation trial of medicinal marijuana guru Ed Rosenthal turned
into a free speech battle Wednesday when the presiding judge said he was
inclined to sign a media gag order and defense attorneys vowed to fight any
such order.

The rift emerged after Assistant U.S. Attorney George Bevan Jr. complained
about news coverage of the trial, which began Tuesday in federal court. In
particular, Bevan said he was upset about Wednesday's Examiner cover, which
showed a photograph of Rosenthal smiling and hugging his 12-year-old
daughter, Justine. The story's headline was, "My dad's a hero."

Rosenthal, charged with marijuana cultivation and conspiracy and facing
possible life in prison if convicted, addressed reporters after adjournment
Tuesday and Wednesday.

After Bevan's complaint, U.S. District Court Judge Charles Breyer asked the
prosecutor to compose a gag order, which the U.S. Attorney's Office was
still drafting Wednesday afternoon, according to spokeswoman Debbie Young.
The judge said he was reluctant to limit free speech but may be willing to
do it in this case.

"I've never before imposed a gag order in a case, and I'm always loath to
do so, but if a party to the case is giving press interviews during a
trial, that's cause for concern," Breyer said.

Defense attorney William Simpich, who said he would contest any gag order,
said he doesn't believe "anyone's right to a fair trial is being
compromised by the First Amendment."

"The First Amendment counts for a lot in this country and unless free
speech is compromising the trial, it shouldn't be an issue," he said.
"There have not been any complaints from the jury -- the judge has
instructed them to follow the law and that is what we expect them to do."

As is standard practice in jury trials, Breyer has instructed jurors not to
read news accounts of the case and not to discuss the case with anyone.

Breyer also warned Rosenthal that his actions outside the courtroom could
lead to a stiffer sentence if Rosenthal is convicted.

"A defendant's conduct during the course of proceedings is a factor in
sentencing," the judge said.

If the judge and the prosecution hoped the threat of a gag order would
muffle the cantankerous Rosenthal, they were mistaken. Rather than toning
down his post-hearing commentary, the pot activist went in the other
direction, attacking the judge for even considering a gag order "just
because they didn't like my picture in The Examiner."

"I think he should be removed from the bench for a remark like that. It
shows prejudice," Rosenthal said. "His decisions aren't based on an
investigation -- first he makes a decision, and then he figures out the
reason why."

Former federal prosecutor James Lassart, an attorney with Ropers Majeski
Kohn and Bentley, said a gag order is sometimes needed "to protect the
sanctity of the trial" in high-profile cases.

"It's not a ruling that judges make lightly," said Lassart. "Judge Breyer
is a fine judge and will be careful in making a ruling like that."

The first amendment issue overshadowed a fairly drab day of testimony as
attorneys on both sides argued over the number of "rooted" plants Drug
Enforcement Administration agents confiscated during a raid on Rosenthal's
Oakland warehouse, where he said he was growing marijuana for medicinal use
by sick people.

While medicinal marijuana has been legal in California since 1996, it is
still against federal law. Throughout the trial, Breyer has told the jury
not to consider the fact that the drugs were being grown for medicinal use
and that it was irrelevant that the Oakland City Attorney's Office had
granted Rosenthal permission to grow the pot.