Pubdate: Sun, 01 Jun 2003
Source: Playboy Magazine (US)
Copyright: 2003 Playboy Enterprises, Inc.
Contact:  http://www.playboy.com/
Details: http://www.mapinc.org/media/343
Author: James R. Petersen
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/people/Ed+Rosenthal (Rosenthal, Ed)
Bookmark: http://www.mapinc.org/people/Charles+Breyer  (Breyer, Judge Charles)
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Court Case)
Bookmark: http://www.mapinc.org/props.htm (Ballot Initiatives)
Bookmark: http://www.mapinc.org/find?194 (Hutchinson, Asa)

THE FEDS PLAY BULLY IN OAKLAND

Many Americans first heard of marijuana grower Ed Rosenthal this past 
February, when the jury that convicted him of three felonies (growing more 
than 100 plants, conspiring to cultivate and maintaining a growing 
operation) demanded that its verdict be overturned. Five panelists and an 
alternate stood on the steps of the federal courthouse in San Francisco and 
said they had been duped into sending a man who was not a criminal to prison.

What the hell happened?

Seven years earlier, California voters had approved Proposition 215. It 
stated that sick people who had a doctor's recommendation could use 
marijuana to alleviate pain, to relieve nausea that accompanies 
chemotherapy, to restore appetite.

City officials in Oakland passed an ordinance designating a local cannabis 
club as an official source for medical pot. It issued Ed Rosenthal a 
license to grow and distribute the drug to a medical co-op. Rosenthal, who 
has written 20 books on marijuana, took over an empty warehouse and 
cultivated plants.

California's attorney general, Bill Lockyer, urged the Drug Enforcement 
Administration to adopt guidelines on medical marijuana that would show "a 
proper sense of balance, proportion and respect for states' rights." DEA 
chief Asa Hutchinson shot him down: "Surely you are not recommending we 
sidestep our country's long-standing practice of rigorous scientific 
research before declaring a potentially harmful drug to be medicine. The 
FDA has never in the past approved medicine by popular referendum." (What 
Hutchinson didn't mention is that the feds must approve any study using 
actual marijuana. So far they have refused to do so.) The DEA chief added, 
without citing evidence, that "medical marijuana laws are being abused to 
facilitate traditional illegal trafficking."

On February 12, 2002, the same day Hutchinson gave a speech in San 
Francisco praising the war on drugs, federal agents raided Rosenthal's 
warehouse. They seized 3163 plants and arrested the man who had grown them. 
When Hutchinson boasted about the arrest during his speech, his audience booed.

A DEA spokesman told reporters: "There is no such thing as medical 
marijuana. We are Americans first, Californians second."

U.S. District Judge Charles Breyer, brother of U.S. Supreme Court Justice 
Stephen Breyer, caught the case. In pretrial hearings he ruled that the 
defense could not mention Proposition 215. Further, the judge said, Oakland 
officials could not testify that they had given Rosenthal a license. He 
refused to let a county supervisor discuss the defendant's motives for 
growing pot or describe the work he'd done for the city. Breyer also 
blocked the appearance of several character witnesses.

In a pretrial motion, Rosenthal's lawyers argued for immunity, citing a law 
that protects federal, state and local officials who possess or transport 
illegal drugs as part of their jobs (e.g., taking evidence to court, 
working undercover). The judge wouldn't have it. Congress intended the law 
to protect cops, not caregivers. Breyer also prohibited a defense based on 
the doctrine of "entrapment by estoppel"--that is, a traffic cop can't tell 
you it's OK to cross against the light, then ticket you for jaywalking.

During jury selection, Breyer stacked the deck. He questioned 80 potential 
panelists, weeding out those who had positive opinions about medical 
marijuana, who had voted for Proposition 215 or who understood the conflict 
between state and federal law and favored the former. These decisions 
eliminated Rosenthal's defense before it even began.

Supporters paid for billboards emblazoned with the message COMPASSION, NOT 
FEDERAL PRISON. Protesters stood outside the courthouse, their mouths taped 
shut.

In his closing remarks, a prosecutor told the jury: "Cultivation of 
marijuana is a federal offense. Period. Nothing else matters." As for the 
vote on Proposition 215, the prosecutor said: "This is a federal courtroom. 
It is not a polling place."

Judge Breyer's remarks were even more dismissive. The judge had told the 
jurors to disregard the 1996 vote. "You are not to consider the purpose for 
which the marijuana was grown. You cannot substitute your sense of justice, 
whatever that is, for your duty to follow the law."

Jurors delivered the verdict the government wanted. Then they rebelled. 
They told reporters that they had felt manipulated, intimidated and 
controlled. One juror reportedly worried the judge would send them to jail 
if they voted their conscience. When the panel realized it had been duped, 
its foreman read a public letter of apology: "I fail to understand how 
evidence and testimony that is pertinent, imperative and representative to 
state government policy and regulation, as well as doctor and patient 
rights, and indeed your family, are irrelevant to this case." Another juror 
added: "I did something so profoundly wrong that it will haunt me for the 
rest of my life. I helped send a man to prison who does not belong there." 
So much for justice.

Judge Breyer will sentence Ed Rosenthal on June 4. The man with the 
benevolent green thumb faces at least five and as many as 85 years in 
federal prison.

Asa Hutchinson has moved on to tackle homeland security.
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