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Federal Judge Strikes Dramatic Blow to Government's Campaign Against Medical Marijuana
Published on Thursday, June 5, 2003 by the San Francisco Chronicle
Convicted Pot Grower Rosenthal is Spared Jail Time
Medical Marijuana Backers Claim Victory
by Bob Egelko
 

A federal judge, striking a dramatic blow to the government's campaign against medical marijuana, spared pot advocate Ed Rosenthal from a prison sentence Wednesday for his conviction on cultivation charges, saying Rosenthal believed he was acting legally.

Rosenthal, 58, a prominent author, columnist and authority on marijuana growing, could have received at least five years in prison under federal law for his conviction of growing more than 100 plants for the Harm Reduction Center, a San Francisco dispensary operating under California's medical marijuana law. A federal prosecutor had asked for a 6 1/2-year sentence.


Ed Rosenthal walks into the San Francisco Federal Building with his wife, Jane Klein, and his 12-year-old daughter, Justine Rosenthal, before the sentencing hearing. Chronicle photo by Frederic Larson
But U.S. District Judge Charles Breyer said the "extraordinary, unique circumstances of this case" justified an exemption from the usual sentencing requirements. He imposed the lightest term possible -- a day in jail, which Rosenthal served after his February 2002 arrest. He also fined Rosenthal $1, 300 and put him on supervised release for three years with orders not to violate any criminal laws and to submit to searches.

The packed courtroom erupted into cheers and shouts when Breyer announced his sentence. Some spectators wept. Moments later, the information reached a crowd of Rosenthal backers in the hallway, prompting another celebration.

"This is Day 1 in the crusade to bring down the marijuana laws, all the marijuana laws," Rosenthal proclaimed after the hearing to about 100 jubilant supporters.

Rosenthal, who had denounced Breyer as biased during the trial, was in no mood to praise him after the sentencing.

"He did me no favors," Rosenthal said. "He made me a felon because he would not allow the jury to hear the whole story. He had an agenda."

Rosenthal plans to appeal his conviction based on Breyer's rulings that kept virtually the entire defense case from the jury -- that Rosenthal was protected by Proposition 215, the 1996 California initiative that allowed seriously ill patients to obtain marijuana with a doctor's recommendation, and that the city of Oakland had designated him as an officer to supply marijuana to a patients.

Prosecutors could appeal Breyer's decision to reduce the sentence below the standard federal guidelines. No decision has been made on an appeal, said Assistant U.S. Attorney Matthew Jacobs, spokesman for the office.

Meanwhile, advocacy groups declared victory.

'A VERY STRONG MESSAGE'

"Today marks the beginning of the end of the federal war on medical marijuana patients," said Robert Kampia, executive director of the nonprofit Marijuana Policy Project in Washington, D.C.

"It sends a very strong message to the Bush administration that they had better focus their law enforcement resources on serious and violent crime, especially terrorism, and stop arresting patients and caregivers in the nine states that have legalized medical marijuana," said Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws.

Also celebrating were some of the jurors who disavowed their guilty verdict after learning that Rosenthal's medical marijuana defense had been kept from them during the trial. Seven of the 12 jurors signed a letter urging Breyer not to sentence Rosenthal to prison, and four attended Wednesday's hearing. State Attorney General Bill Lockyer also called for a lenient sentence.

"Today has put my faith back into our judicial system," said juror Pamela Klarkowski, a registered nurse from Petaluma.

The prosecution of a noted activist on his home turf was only one of a series of federal enforcement actions against medical marijuana operations since California voters approved Prop. 215, actions that have drawn increased resistance from local and state officials.

A civil suit initially filed by the Clinton administration resulted in a U. S. Supreme Court ruling that shut down the Oakland marijuana cooperative -- though more than 30 others are still operating in the state -- and both the Clinton and Bush administrations have sought, unsuccessfully so far, to punish doctors who recommend marijuana.

The Bush administration has also raided pot farms and dispensaries and filed numerous criminal charges against medical marijuana growers, winning prison sentences in at least four cases, with a dozen more cases pending, according to advocates.

Rosenthal's case was unique because of his relationship with the city of Oakland. Trying to shield its Cannabis Buyers' Cooperative from the federal crackdown, the City Council declared the organization an official city agency in 1998 and allowed its leaders to designate suppliers -- including Rosenthal - - as city officers.

BLOCKING EVIDENCE

Breyer, saying he was following federal drug laws, ruled before the trial that Rosenthal did not qualify as a narcotics law enforcement officer, which would have immunized him from prosecution. But he cited the same evidence Wednesday in his sentencing decision.

Rosenthal "believed that he was not violating federal law," the judge said. "His belief, while erroneous, was reasonable."

Because his ruling served notice that a local agency can't provide protection from federal charges, Breyer said, leniency for Rosenthal won't encourage lawbreaking by others.

But Rosenthal predicted predicted to reporters that higher courts would find Breyer "dead wrong" on the immunity issue.

©2003 San Francisco Chronicle

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