Jewish World Review Feb. 11, 2003 / 9 Adar I 5763

Clarence Page

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Consumer Reports

How feds fooled marijuana trial jurors | It is not every day that a jury apologizes to a man it has just convicted.

So Ed Rosenthal should feel honored that seven of the 12 jurors that convicted him on three federal counts of marijuana cultivation and conspiracy are now apologizing to him and calling for their own verdict to be overturned on appeal.

Five of them appeared and two others had statements read at a news conference last Tuesday outside U.S. District Court in San Francisco.

They wanted to let the world know that they felt misled by the federal judge and prosecutors that did not allow the defense to raise issues of state and local medical marijuana laws in Rosenthal's trial.

Rosenthal, 58, is a well-known author, magazine advice columnist and advocate for the medicinal use of marijuana who was growing the grass for medicinal purposes. California is one of eight states (Oregon, Maine, Washington, Hawaii, Alaska, Nevada and Colorado are the others) that have passed laws to allow the sick and dying to smoke or grow marijuana with a doctor's recommendation.

Rosenthal was deputized by the city of Oakland to provide marijuana for those whose doctors recommend it. Ironically, the program is intended to help the ill and dying avoid the street dealers that the federal drug czar's current multi-million dollar TV ad campaign (Your dollars at work, fellow taxpayers!) is warning us against.

But, none of that highly pertinent information about Rosenthal's methods or motives was allowed to reach the eyes or ears of Rosenthal's jury. Judge Charles R. Breyer of Federal District Court barred Rosenthal's defense from mentioning the state law because he was indicted under federal law, which does not allow the growing of marijuana for any purpose.

As a result, Rosenthal was prosecuted like a member of the Soprano crime family, convicted and faces a minimum of five years in prison when he is sentenced in June.

"Last week, I did something so profoundly wrong that it will haunt me for the rest of my life," Marney Craig, a property manager who served as a juror in the Rosenthal trial, wrote in a San Jose Mercury-News op-ed. "I helped send a man to prison who does not belong there."

It is no wonder that the jurors feel like, if I may coin an old colloquialism, they got took. After all, they were.

And, of course, it is easy to see why prosecutors did not want Rosenthal's motives to be revealed. In California, which legalized medicinal use of marijuana in 1996, it must be quite difficult to find a jury of 12 people that would convict a man whose only criminal offense was to provide the weed to the sick and the dying.

Californians are hardly alone in this nuanced view. Although fewer than 40 percent of Americans would legalize marijuana for recreational use, recent polls have found that about 80 percent support legalizing it for medicinal use.

Even presidential candidate George W. Bush told reporters in October, 1999, that on the medicinal marijuana question, "I believe each state can (make) that decision as they so choose."

Or, maybe not. President Bush's administration is going after California's medicinal marijuana providers with a zeal that is appropriate for the pursuit of Colombian drug cartels.

Despite California Attorney General Bill Lockyer's pleas to former Drug Enforcement Administration head Asa Hutchinson last year, the DEA has stepped up raids on state-sanctioned cannabis growers and treatment facilities.

In July, Bryan James Epis, 35, organizer of a cannabis buyers club in Chico, was found guilty of charges similar to Rosenthal's and sentenced to 10 years. His conviction has been appealed.

And watch what you say, buddy, as well as how you say it. In December, Jeff Jones, executive director of the Oakland Cannabis Buyers' Cooperative, was found guilty of "an attempt to influence jurors," in the words of U. S. Magistrate Judge Peter A. Nowinski, simply for passing out leaflets in support of Epis outside the courthouse.

Nowinski dismissed Jones' free speech defense. After all, there's a war on drugs to be fought. Jones' sentencing is scheduled for Feb. 27.

With antics like these, prosecutors might find it harder to get any kind of a marijuana conviction out of a jury, whether it is medicinally related or not.

Who, I wonder, will stop this madness?

For starters, Congress should move the country toward sanity by taking the long overdue step of downgrading marijuana from "Schedule I" of the Controlled Substances Act. It makes no sense for cannabis to be ranked with heroin, LSD, morphine and other drugs in Schedule I.

Or does anyone really believe that marijuana is more potent, dangerous and devoid of redeeming medicinal value than cocaine, opium, codeine, injectable methamphetamines and other Schedule II drugs?

Perhaps, after that step, we might be able to handle marijuana as a properly controlled hazardous drug, instead of a political football.

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