THE TRIAL OF ED ROSENTHAL

A federal judge in San Francisco is blocking a jury from hearing evidence
that could exculpate an outspoken medical marijuana activist. Ed Rosenthal,
who is facing 20 years in prison on federal drug charges, believed himself
to be immune from prosecution when he was deputized by the nearby city of
Oakland in 1998 to cultivate cannabis for chronically ill patients.

Rosenthal's case is a challenge by federal prosecutors to California's
Compassionate Use Act (Prop. 215), a 1996 voter referendum that made the
cultivation, possession and consumption of medical marijuana legal in
California with a doctor's recommendation. Since the act did not provide
for the distribution of medical cannabis, several California cities,
including Oakland, have passed ordinances that authorize growers and
distributors to meet this need.

Rosenthal, who has written or edited more than a dozen books on marijuana
cultivation and social policy, seemed like a good choice as cultivator of
Oakland's Medical Marijuana Program. But last February, he became one of
the first people indicted by the U.S. Justice Department for providing
marijuana to patients in the San Francisco Bay Area.

Rosenthal, 58, is now facing charges of cultivating more than 1,000
marijuana plants at a San Francisco medical marijuana club, conspiracy to
grow marijuana, and maintaining a place to grow marijuana at an Oakland
warehouse. The warehouse reportedly contained several thousand tiny starter
plants that Rosenthal says were intended for distribution to medical
marijuana patients who want to grow their own cannabis.

George Bevan Jr., the government's lead prosecutor, had no comment on the
proceedings. But Rosenthal says the outcome of his case will determine the
government's future approach to medical marijuana, considered by activists
to be a sharp wedge in the larger fight against the U.S. government's war
on drugs.

''If they win this battle, then I think that the dispensaries in the nine
states that have legal medical marijuana are going to be in for a tough
time from the federal government,'' says Rosenthal. ''If we win this, it's
like taking several bricks out of the bottom of a wall, it weakens the wall
so much that it will eventually implode.''

Prop. 215 passed with 68 percent in San Francisco. Many area residents are
aware of the ongoing conflict between Prop. 215 and the federal Controlled
Substances Act. Richard Meyer, spokesman for the DEA San Francisco field
division, notes that under the Controlled Substances Act, marijuana is
classified as a Schedule One substance with no medicinal value and a high
potential for abuse. Federal agencies have blocked nearly all attempts to
conduct scientific studies on medical marijuana.

When U.S. District Judge Charles Breyer asked prospective jurors in
Rosenthal's case if they could set aside their potential support for Prop.
215 and enforce possible criminal drug penalties under the Controlled
Substances Act, many rebelled. Over half the 77 prospective jurors refused
to acknowledge the supremacy of federal law and were excused from the case.

''I feel it is very frustrating when voters in the state of California make
a statement on medical marijuana and the government prosecutes," said a
juror from Napa, Calif. who was later disqualified. ''I think it should not
be a political fight but we should go into the science and figure it out.''

The judge's questions regarding Prop. 215 alerted potential jurors that
medical cannabis is an issue in the case. But it's uncertain how much
specific information about medical cannabis the judge will permit jurors,
or whether jurors will nullify by entering a verdict contrary to the
instruction of the court. Jurors who convicted another medical marijuana
grower two months ago were outraged when they later learned that their vote
had sent him to prison for 10 years.

''It is not the court that placed marijuana in Schedule One; the court is
simply following the law,'' said Judge Breyer.

A Bitter Legal Struggle

During two weeks of hearings prior to jury selection, Rosenthal's lawyers
engaged in a bitter legal struggle with Judge Breyer, who sought to block
Rosenthal from using Prop. 215 as a defense against federal charges. Breyer
denied defense motions to dismiss the charges based on selective
prosecution, lack of jurisdiction, official immunity, and 9th and 10th
Amendment arguments.

The defense also argued that the charges should be dismissed on due process
grounds because the government's prosecution is a form of entrapment by
estoppel. This argument applies when a government agent tells the defendant
that certain conduct is legal and the defendant believes the official.

''I was following 215 in good faith,'' argues Rosenthal. ''I had been made
an officer of the city and been immunized, and the whole question is
whether in spite of all this, the federal government can come in and
arbitrarily choose one person to persecute.''

Rosenthal's attorneys presented evidence that the DEA gave assurances to
local medical marijuana activists that they would respect California's
medical marijuana laws. Several Oakland city officials, including the city
attorney and the former head of the Oakland Police Department's Narcotics
Division, also testified in pre-trial hearings that they were never told
told by the DEA that they were violating federal law and could be subject
to federal prosecution.

The City of Oakland sought to protect medical marijuana providers using a
provision in the Controlled Substances Act which allows local
municipalities to deputize agents of the city and immunize them from civil
and criminal liability. This legal exception, known as 885(d), protects law
enforcement agents who possess, buy or sell drugs in the course of their
duties.

Judge Breyer rejected the estoppel argument asserting that DEA assurances
not to prosecute were hearsay. He also ruled that Oakland city officials
were not authorized to relay such assurances and that lack of swift
enforcement action by federal law enforcement did not imply consent. On
Jan. 16, Rosenthal's defense team took the unusual step of going over the
judge's head by filing a writ with the 9th Circuit Court of Appeals asking
them to rule on the entrapment by estoppel defense.

''If this writ were granted, we should ask the judge to pick a new jury
because he informed this present jury panel that there was no way to
harmonize state law and federal law,'' said Bill Simpich, one of
Rosenthal's attorneys. ''We believe that the City of Oakland harmonized
state law with federal law by immunizing Ed.''

Rosenthal's trial is now set to begin on Tuesday, Jan. 21. It is still
unclear whether he will take the stand in his own defense, or what the
judge will permit him to say. If Rosenthal cannot testify about his state
of mind at the time of the alleged crime, he cannot convince the jury that
that he had no intent to break the law – which is normally required
for conviction.

Judge Breyer is eager to try the Rosenthal case swiftly with little
fanfare, but activists are registering their outrage over what they
considered a muzzled trial. Outside the San Francisco federal building on
the day that prospective jurors were assembling, five demonstrators stood
mute with their mouths gagged. They held signs showing a marijuana leaf
which read, ''This is my medicine.''

People excused from the jury said they were aware of the demonstrators. The
question now is how much the remaining jurors know about Rosenthal's
medical marijuana crop.

Ann Harrison is a San Francisco based science journalist.