Pot Conviction may have created a medical marijuana martyr

OAKLAND, Calif. - Ed Rosenthal is saddled with two public images these days. The first Ed is the soccer dad who wears Eddie Bauer slacks and pads around his Victorian home in socks and sandals; the second Ed is the convicted drug kingpin who faces five years in the pen for having thumbed his nose at the U.S. government.

Ed's fans embrace the first image. But Ed's detractors tend to carry guns and badges, and that is why his time as a free man is dwindling toward zero.

"I want to stay out of jail," he said, because he knows what jail would mean. No more Grateful Dead CDs on his kitchen boom box. No more time in the greenhouse with his rare orchids. No more quick jaunts with his wife, Jane, to concerts and gallery openings. No more San Francisco skyline glinting silver in the distance. No more hugs from total strangers who think he's starring in a nightmare scripted by Franz Kafka.

And no more growing marijuana for sick people to smoke - which is why the feds took him down. Miffed by the fact that he was nurturing hundreds of plants in an Oakland warehouse near the docks, they busted him a year ago (he opened the door naked at 6 a.m., and saw 15 police officers armed to the teeth). They convicted him a month ago, and they intend to sentence him - five years, mandatory minimum - this spring.

More important, they are waging a national war against medical marijuana, running roughshod over the nine states that have legalized it - and Rosenthal is the prize casualty. They view marijuana as a scourge, with no exceptions. They're not impressed that Rosenthal had been cultivating starter plants for 3 1/2 years as a deputized city official. They want to send the message that a 58-year-old man with a son at Columbia and a daughter in private school is no better than a street dealer.

Rich Meyer, a Drug Enforcement Administration agent, said: "Marijuana is illegal, period. And marijuana is not medicine. We can't just obey the laws that we like, because that's a recipe for chaos."

Californians, who legalized marijuana for sick people in a 1996 referendum, have discovered that the Bush administration has no intention of respecting their decision. The DEA has been raiding the pot dispensaries - most notably last autumn in Santa Cruz, after which the mayor, as a protest, personally handed out marijuana to medical patients on the steps of City Hall - and a dozen medical-marijuana growers in the state have been convicted in federal court.

But, in Rosenthal's case, the feds may have created a martyr to the cause. They convicted him as a common drug dealer without allowing jurors to hear any evidence that he was growing pot for medical reasons (because federal law doesn't recognize medical use). For that reason, nearly half the jurors have renounced their own verdict.

In her kitchen, juror Marney Craig said: "What I saw in court was a nice Jewish man who could be a friend of mine. It feels horrible to have been so manipulated. We have to live with the knowledge of what we've done to Ed. And what about the voters of California, passing medical marijuana? How can come in and say, `Your opinion doesn't count for anything'?"

Rosenthal seems pleased with his status of cause celebre. People hug him on the street. He drives up in his silver Cougar, and he's treated like Sinatra at the Copa. When he shows up at the pot dispensaries in downtown Oakland, sick people in wheelchairs roll by to pay their respects. Plant-lovers accost him, speed-rapping about "cannabinoid receptors" and other fine points of growing.

Rosenthal is reliving the 1960s and digging it. He refers to his plight as "the ultimate phase of activism - like the Berrigan brothers," invoking the Roman Catholic priests who were jailed for their antiwar actions. He thinks he's a classic symbol of what can go wrong when "fanatic ideologues" in Washington try to prevent the states from making their own decisions about the health of their citizens.

He now has five lawyers trying to keep him out of jail, and he insists that "the fickle finger of fate just happened to stop at my door." But that's not exactly true. Co-owner with his wife of a publishing company, he has been writing for decades, in books and magazines, about marijuana cultivation. He openly believes that pot should be legal, that the current laws "are hollow and rotten to the core," and that the medical-marijuana battle could soften the public for a subsequent legalization crusade.

Well, that kind of talk is catnip to the DEA, which answers to an antidrug hard-liner, Attorney General John Ashcroft. (Although Ashcroft's boss, President Bush, did say as a candidate in 1999 that, on the issue of legalizing medical marijuana, "each state can choose that decision, as they so choose.") Rosenthal was too juicy a target to pass up.

DEA agent Meyer said: "If someone is going to say, `I want to grow all the pot I want, and here are my books about it,' - well, thank you, sir, for making my job easier. If you want to be such an advocate, you shouldn't be surprised if we pay you a visit. ... And Rosenthal makes it clear that `medical marijuana' is just a beachhead for the larger attempt to make this drug legal."

As for the jurors' complaints that they were denied crucial evidence about Rosenthal's true identity, Meyer said: "In our system, the jury sees whatever is deemed legally appropriate. They saw everything they were entitled to see. That's our legal system. It's all we have, for better or worse."

But the ticked-off jurors are writing a letter to the judge, imploring him to find a way around the five-year mandatory minimum sentence. Jury foreman Charles Sackett, sipping tea the other day, said: "A lot of us didn't eat or sleep for a week after the trial. I've been devastated that I wasn't given the whole truth. It's totally appalling that they can bend and twist things. They expected me to play fair as a juror, but they weren't playing fair with us."

Expect to see some of these jurors testifying on Capitol Hill soon; three California congressmen, including one conservative Republican, are pushing a bill that would permit a "medical defense" in federal marijuana cases that are prosecuted in states where the drug is dispensed. (Maryland is currently debating whether to become the 10th state. The Republican governor supports the concept of pot as pain reliever, in part because his brother-in-law recently died of cancer.)

Meanwhile, Oakland's dispensaries remain open, seemingly undeterred by the Rosenthal case. But Meyer said: "They should not be surprised at all if we pay them a visit."

As for Rosenthal, who would prefer his denim jacket to prison scrubs, he's trying to see the humor in all this: "When my son first got into Columbia, I told him to go meet Meadow. You know who I mean - Meadow Soprano, who goes to Columbia on `The Sopranos.' Whose father is a crime kingpin, always in trouble with the feds. But now I've come to realize, my son is Meadow."

Medicinal pot's leader receives lenient sentence
By Claire Cooper -- Bee Legal Affairs Writer
Published 2:15 a.m. PDT Thursday, June 5, 2003

SAN FRANCISCO -- The federal government's odd case against the nation's leading marijuana guru took another unusual turn Wednesday, when a judge sentenced Edward Rosenthal to the single day he's already spent in a county jail.

Cheers rang through the courthouse as U.S. District Judge Charles Breyer said a "just punishment ... requires substantial departure" from sentencing guidelines for Rosenthal's pot-farming crime, and then announced a sentence of "one day with credit for time served."

Prosecutors had requested a 6 1/2 -year term. Pot activists were forecasting as much as 85 years, though the legal maximum appeared to be about 60 years.

Several of the jurors who convicted Rosenthal in February -- without knowing he grew his pot for the benefit of hundreds of medical users -- wept with joy.

"It affected us so much," said foreman Charles Sackett as he left the courtroom.

"This is Day One in the crusade to bring down the marijuana laws," the defendant told reporters afterward.

But he called Breyer corrupt and asked him to resign.

"He did me no favors," Rosenthal said. "What he did is he made me a felon because he did not allow this jury to hear the full story."

Rosenthal's lawyer, Dennis Riordan, said the conviction will be appealed. Prosecutors declined to comment on whether the government will appeal the sentence, which also includes three years of supervised release, a $1,000 fine and a $300 assessment.

Rosenthal, 58, has been the most prominent of the California growers targeted by federal drug agents since the state in 1996 adopted Proposition 215, permitting pot use by qualified patients.

The country's leading author of how-to books and articles on marijuana cultivation, Rosenthal was deputized by Oakland as supplier for a city-sponsored pot cooperative in an attempt to keep federal authorities at bay.

But because virtually all marijuana remains illegal under federal law, Breyer barred evidence of medical use at Rosenthal's trial. As a result, the jury found him guilty of supplying hundreds of pot seedlings to users without having heard that his massive Oakland warehouse farm wasn't a purely commercial enterprise.

Immediately after the trial, most of the jurors revolted, appearing publicly with Rosenthal, apologizing, expressing anguish at the role they said they would have declined to play if they had been informed.

Last week nine of them signed a letter to Breyer, urging him to "bring the law into alignment with morality and ethics."

"It's wonderful to see mercy involved in our judicial system," juror Pamela Klarkowski said after court Wednesday.

Others who supported Rosenthal in the sentencing proceeding included California Attorney General Bill Lockyer, who wrote to Breyer to urge the minimum possible sentence.

Lockyer asked the judge to consider California's initiative and a widely sponsored bill pending in the U.S. House that would allow defendants in federal pot cases to introduce evidence of compliance with state medical pot laws. Two House members from California, Democrat Sam Farr and Republican Dana Rohrabacher, introduced the bill in response to the Rosenthal case.

Assistant U.S. Attorney George Bevan argued the federal government's position in court, saying, "Mr. Rosenthal was growing a lot of plants. ... There was nothing exceptional about this case." He said Rosenthal "deep down in his heart" didn't really believe he was an officer of Oakland.

The prosecutor also contended Rosenthal violated rather than furthered Proposition 215 because the initiative purports to legalize the drug only for patients and their caregivers, not for growers and cooperatives.

But Breyer asked, "Is it logical to say you can have it but you can't get it?"

The judge called the circumstances of Rosenthal's crime "highly unusual."

Rosenthal conducted his business in the open, reasonably believing he was immune from prosecution, Breyer said. He also took into account Rosenthal's support from public officials.

Riordan, Rosenthal's attorney, said the jury should have been allowed to weigh the same factors -- a point he'll make in appealing the conviction.

Defense lawyer J. Tony Serra said Rosenthal's sentence "shows the enormous disparity in attitudes toward medical marijuana in two adjacent Northern California federal jurisdictions," San Francisco and Sacramento.

Serra represented Bryan Epis, who received a 10-year sentence in federal court in Sacramento last fall for supplying pot to a medical dispensary in Chico.

Serra said he didn't expect Rosenthal's sentence to affect Epis' appeal, but he said Epis has other strong appeal issues.

The Bee's Claire Cooper can be reached at (415) 551-7701 or ccooper@sacbee.com.

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