ED ROSENTHAL PLUGS HIS NEW BOOK

Why Marijuana Should be Legal By Ed Rosenthal and Steve Kubby Thunder's
Mouth Press, $11.95 (paper)

Some guys will do anything to promote a book. The co-authors of the volume
at hand, Ed Rosenthal and Steve Kubby, are both waging high-profile
courtroom battles to legalize marijuana for medical use (not to mention
staying out of prison, and alive).

Kubby, 55, is seeking political asylum in Canada. An important figure in
the passage of Prop 215 (he helped arrange financial support for a
professional signature drive), Kubby was convicted in 2000 of possession
of an illicit mushroom (after being acquitted on
cultivation-for-sale-of-marijuana charges) by a Placer County jury. Fearing
that that even a brief incarceration could be fatal, he headed North with
his wife and two young daughters. Kubby has a rare cancer of the adrenal
system that almost invariably kills within two years of being diagnosed.
Specialists attribute his survival --26 years!-- to heavy marijuana
use. Kubby's asylum request seeks to establish that the U.S. marijuana
prohibition is unjust by Canadian norms.

Rosenthal, 58, who also has a wife and kids, is due to be sentenced June 4
by U.S. District Court Judge Charles Breyer. Ed was convicted on conspiracy
and cultivation charges by a federal jury in San Francisco that wasn't
allowed to hear his "medical use" defense, On April 1 he was back in court
represented by appeals specialist Dennis Riordan-- with a motion to dismiss
the case, based on the fact that juror Marney Craig had asked a lawyer of
her acquaintance whether she could vote her conscience if it clashed with
the judge's instructions. The lawyer/friend's answer had been an
unequivocal "No. You must obey the judge." Craig relayed this fact to
fellow juror Pam Klarkowski as they drove to court on the morning
deliberations were to begin. Under the relevant federal rule of evidence,
606 (b), the improper influencing of jurors during the course of a trial
can be grounds for dismissal.

Ed and his partner/wife Jane Klein had brought a shopping bag full of "Why
Marijuana Should Be Legal"s to Judge Breyer's courtroom. After the
proceedings, as the reporters clustered around Ed with technical legal
questions, he handed them books and amplified his answers with salient
political facts to be found therein. "Did you know," Ed said to David
Kravets of the Associated Press, "the federal and state governments spend
more than $15 billion a year arresting, prosecuting and imprisoning people
for marijuana? They spend more than one billion just to incarcerate the
20,000 federal marijuana prisoners!"

The reporters had a lot of questions to ask because the proceedings had
been complex. The Rosenthal camp called three witnesses, all of whom
happened to be middle-aged working women. First came Marney Craig, the
juror who had phoned a lawyer/friend during the course of the trial and
asked him --without referring to the case she was involved in-- whether
jurors were allowed to "vote their conscience as opposed to obeying the
judge's instructions."

Craig, a property manager who lives in Novato, was accompanied to court by
her husband, Freeman, who had not attended the trial itself. Freeman Craig
said that Marney was so respectful of Judge Breyer's admonitions that she
never discussed the case with him while it was going on, nor would she
confirm that she had been assigned to the much-publicized Rosenthal trial.
Freeman suspected, of course, and dutifully clipped the Chronicle stories
for her to read when it was all over.

Craig was also accompanied by a lawyer of her own, Mary MacNamara, who
advised her to take the 5th Amendment rather than divulge the name of the
lawyer with whom she had consulted. (Judge Breyer and Prosecutor George
Beavin both referred to it as "the 5th Amendment `privilege.'" Isn't it a
right?) Dennis Riordan, representing Rosenthal, whom Craig would obviously
like to help, elicited a promise from Breyer that "jail would not be the
remedy" if Craig was found to be in contempt when the proceedings resumed.

Pam Klarkowski, a nurse who lives in Petaluma, testified that, on occasion
during the Rosenthal trial, she drove to and from court with Marney Craig
and a third juror. Craig apprised her that she intended to ask "an attorney
friend about a point of law=85 `Do jurors ever have an opportunity to vote
or make a decision based on their conscience?'"

Klarkowski said she told Craig, "If you do, I'd like to know the answer."
Then, on January 31, the morning that deliberations were to begin,
Klarkowski asked Craig, "Did you speak to your friend?"

Craig: "Yes."

"What did you find out?"

"To do what we're instructed by the judge."

Riordan asked if those were the exact words Craig had used. Klarkowski,
upon reflection, amended it to "To do what we were told."

Eve Tulley-Dobkin, who works in the technology department of a brokerage
house, described the dramatic scene in which the jurors were confronted
forthrightly but civilly-- by Hilary McQuie, after delivering their
verdict. The decision to convict had come sooner than anticipated, the
numerous friends of Ed who had attended the trial were gone, no reporters
were lurking to ask the jurors to explain their reasoning. McQuie was not
only in the right place at the right time, she had the courage to act, and
she had a clear political overview --asserting our rights as jurors is one
of our last best hopes -- and she found the right way to ask these women
and men, as they emerged from the room in which they'd deliberated for half
a day, if they understood that Ed Rosenthal had been growing marijuana for
medical use=85 Immediately their ambivalence about what they'd just done
came pouring out. Then their anger at not having been allowed to consider
the evidence that common sense would deem relevant, i.e., Ed's having
approval from the City of Oakland to cultivate starter plants for
documented patients. And instead of shame --because these jurors knew
better than anyone the pressure they'd been under to "obey"-- came a
determination to reverse the injustice to which they'd been a party. Within
five minutes they were politically organized, thanks to Hilary McQuie.

In the days that followed, McQuie and her co-workers at Americans for Safe
Access, aided by private investigator Barbara Yaley, contacted all the
sympathetic jurors, encouraged them to tell the whole country how they felt
about being used to rubber-stamp the prosecution of Ed Rosenthal, and got
the much of the country to listen.

As a coda to the juror-misconduct debate, AUSA Beavin asked Breyer to set a
deadline by which Rosenthal had to "cooperate fully" with the government by
naming the names of those involved in his enterprise. In order to qualify
for the so-called "safety valve" --and get out from under a five-year
mandatory minimum sentence-- Ed has to cooperate. "There are no names
besides the names of city officials," says Ed. "And Probation is satisfied
that I have cooperated fully." Judge Breyer will get to define the
acceptable level of cooperation. "He can't be happy about having to
sentence me," says Ed. "I think he's feeling Breyer's remorse."

P.S. 4/8 The prosecution had asked for a delay to consider Marney
Craig's request for immunity. When the hearing resumed April 8, the answer
was no, which kept Craig in a double-bind. She is dismayed by the prospect
of Ed Rosenthal doing time in federal prison, but obligated to maintain the
confidentiality of her lawyer/friend --not to mention the vague possibility
of a contempt-of-court charge. At one point Breyer (whose phrase for "I'm
just thinking out loud" is "Let's say, for purposes of analysis=85")
consulted the Federal Code sections --18 USC 401(3) and 402 governing
violations of a judge's instructions. Breyer seemed to nod in agreement as
he read aloud that punishments can include fines and imprisonment. He then
gave several phrasings to the thought: "I can't find that violating my
command gets no weight." And "I would say you could get into trouble [if
you don't follow the instructions]." Breyer also asked, for purposes of
analysis, "So what if she followed the lawyer's statement that she had to
follow the law?" The implication was that the "statement" had no relevant
impact on the verdict.

But Dennis Riordan left the courtroom satisfied that certain key points had
made it into the record. The government did not object to the last two
paragraphs of Craig's declaration, which recounted her interaction with her
lawyer/friend. Riordan will argue to the appeals court that the
advice/warning Craig received from this source had an intimidating effect
on her; that she was unduly influenced under the terms of 606(b) and so was
least one other juror, Pam Klarkowski.

The federal building in SF is a block-long gray rectangle, 20-stories high.
In recent years the plaza on the south side of the building has been
weirdly graded and fenced for crowd-control purposes (by a government with
an obvious guilty conscience). After her non-appearance on the stand,
Citizen Marney Craig stood in bright sunshine on the sterile plaza and
talked to reporters. Her lawyer wouldn't allow her to discuss the reasons
for taking the 5th... Did she think she'd gotten bad advice from the
lawyer friend? The advice had made her feel "trapped," she said. "The
outcome might have been different if I'd gotten different advice."