Lawyers ask that medical pot case be overturned

SFGate.com

Attorneys for Oakland pot advocate Ed Rosenthal asked a panel of federal judges Tuesday to overturn his 2003 conviction for growing medical marijuana, while the prosecutors sought to have his one-day prison sentence thrown out because they thought it wasn't long enough.

Rosenthal, 60, was arrested in 2002 for growing marijuana for the Harm Reduction Center, a San Francisco dispensary for medical patients. Rosenthal, who is well-known for his "Ask Ed" advice column for cannabis growers, was convicted a year later on federal cultivation and conspiracy charges.

But in his trial U.S. District Judge Charles Breyer forbid Rosenthal and his attorney from mentioning that he was growing cannabis for medical users. Breyer ruled that because medical use is not allowed under federal law, that evidence was irrelevant to his guilt or innocence.

Breyer then imposed the lightest possible sentence -- one day -- which Rosenthal had already served the night of his arrest, saying that "extraordinary, unique circumstances of this case" justified an exemption from the usual five-year minimum term and federal sentencing guidelines. Breyer concluded Rosenthal had "reasonably" but erroneously believed that he was acting legally because of his support from local officials.

Nine of 12 of the jurors who voted to convict Rosenthal have since disavowed their guilty verdict after learning that Rosenthal was growing medical marijuana.

Attorneys Dennis Riordan and Joe Elford argued Tuesday that Breyer should have allowed Rosenthal to present a defense that he grew the marijuana solely for medical use with the permission of Oakland city officials, who were acting within the parameters of the state's medical marijuana law.

"It's an affirmative defense based on the conclusion that somebody was reasonably misled by public officials," Riordan said. "He had a Sixth Amendment right to present that defense to a jury."

They also argued that Breyer improperly restricted the jury's options by urging jurors to follow the law and not bring their own "sense of justice" into their deliberations.

Rosenthal said his actions were authorized by California's medical marijuana law and also said he had been deputized by the city of Oakland to supply marijuana to a city-endorsed patient cooperative.

Supporters of medical marijuana see the case as perhaps the most important court battle for their movement since the U.S. Supreme Court ruled in June that the federal government has the authority to prosecute medical cannabis growers who act under the auspices of California's medical marijuana law. That case also involved an Oakland resident, brain cancer patient Angel Raich.

Riordan told the three-judge panel that Rosenthal had been denied a fair trial because he could not introduce that defense. Rosenthal's appeal also argues that he was not allowed to rebut the government's charges that he cultivated cannabis for profit.

Meanwhile, Assistant U.S. Attorney Amber Rosen argued that Rosenthal's conviction should remain in place, but that Breyer should have sentenced Rosenthal from two to five years in prison under federal guidelines. Rosen said the one-day sentence "was an abuse of judicial discretion."

Judge Marsha Berzon interrupted Rosen's argument noting that under a 2003 U.S. Supreme Court decision, the guidelines were not mandatory.

But Rosen insisted that the one-day sentence was not reasonable in light of the crime. Congress intended that large-scale cultivation should be treated as a serious offense, she said.

Rosen said Breyer had followed the law correctly by excluding medicinal claims.

In addition to arguing that Rosenthal's medicinal marijuana defense was unfairly excluded, his attorneys said the conviction should be overturned for several other reasons. They claimed that federal prosecutors falsely told the grand jury that law enforcement agencies were not singling out medical marijuana clubs.

They also alleged that two jurors committed misconduct by voting to convict Rosenthal after receiving advice from a lawyer friend who said they could get in trouble if they ignored the judge's instructions. Jurors are not supposed to discuss a case with anyone but other jurors until after a verdict is reached.

Rosen acknowledged that the outside advice was inappropriate but said it might not have swayed the jurors' decision to convict. The friend merely told the juror that "you need to follow the court's instructions," and that is not enough reason to overturn a conviction, she said.

Berzon, Judge Betty Fletcher and Judge John Gibson took the case under submission and gave no indication how soon they would rule.

Rosenthal said outside court that he was more than happy to risk possible prison time if a new trial is ordered and he is convicted. It is more important to keep fighting to clear his name and support the cause of "sick and dying people who need marijuana," he said.