Ed Rosenthal to Remain Free Until Sentencing

In the already-weird case of noted marijuana author and activist Ed Rosenthal, the surreal moments continued at his bail-revocation hearing Tuesday, as six of the jurors from the trial sat at the front of the courtroom in a show of support for the man they had convicted four days earlier.

Despite the best efforts of the U.S. Attorney's Office to incarcerate him immediately, Mr. Rosenthal was allowed to remain free on $200,000 bail, pending his sentencing on three federal counts of marijuana cultivation, which is scheduled for June 4, 2003. The sentencing range is from a minimum of five years to more than eighty, with possible fines of several million dollars -- though U.S. District Judge Charles Breyer said after the verdict was read last Friday that he would like to be able to go below the minimum. Whether Mr. Rosenthal qualifies for an exception to normal sentencing has yet to be determined.

In addition to ruling that Mr. Rosenthal was not a flight risk, Judge Breyer again noted the extraordinary circumstances of Mr. Rosenthal's prosecution and trial, and stated they were a reason for his being allowed to remain at large. Defense counsel found this aspect of the judge's ruling encouraging, as it suggests that Mr. Rosenthal would also be allowed to remain free on bail pending appeal, if Judge Breyer does not grant their motion for a new trial before then. They have also filed a motion to have the original Grand Jury indictment dismissed for misconduct by the prosecutor.

After the hearing, the six jurors met with Mr. Rosenthal, his family, defense attorneys and selected supporters before holding an unprecedented press conference outside the federal building, with several dozen demonstrating supporters as cheering spectators. Surrounded by a sea of microphones, cameras and reporters, the soft-spoken jury foreman, Charles Sackett, read a letter of apology to Mr. Rosenthal and his family. Another of the jurors, Marney Craig, read a statement endorsed by eight of the twelve jurors and two alternates, demanding a new trial for Mr. Rosenthal. Two others who had deliberated on the panel made statements apologizing for their verdict and questioning the system that had "railroaded" them to their decision. A third juror, one of the two alternates on the panel, expressed relief at not having to live with the responsibility of the verdict, but said he, too, shared in the shock and outrage that so much of what might have been said in Mr. Rosenthal's defense had been kept from them.

Joining jurors in denouncing what many are calling a "travesty of justice" was San Francisco District Attorney Terence Hallinan and two of the San Francisco Board of Supervisors, Board President Matt Gonzales and Supervisor Tom Ammiano.

After hugging the jury foreman, Mr. Rosenthal told the press and his supporters that the jury had been as "victimized" by the way the case had been conducted as he had.

Attorneys for Mr. Rosenthal had been prevented from telling the jury about his role in the City of Oakland's program to implement California's medical marijuana law. As a that program, he was deputized as an official of the city to provide immunity from prosecution under the federal statute that protects federal, state and local officials who possess or transport otherwise illegal drugs as part of their jobs.

Prior to the trial, Judge Charles Breyer ruled that the federal immunity statute, 885(d), was not intended by Congress to protect such activities as Oakland's medical marijuana distribution program, whether they deputized participants or not, so it could not be invoked by Mr. Roseenthal. That interpretation of the statute, which is based on Congressional intent rather than the literal language of the law, is already under appeal in connection with another case, a fact Judge Breyer mentioned again in Tuesday's bail hearing, saying that he may well be overturned by the Ninth Circuit Court of Appeals soon. Such a reversal by the Ninth Circuit would effectively nullify Mr. Rosenthal's conviction.

The jury in Mr. Rosenthal's case was allowed to hear nothing about that immunity question. Nor were they allowed to hear his related "entrapment by estoppel" defense, which comes into play if immunity doesn't apply. His attorneys argued pre-trial that since numerous government officials had told him he had immunity, Mr. Rosenthal reasonably believed what he was doing was legal under both state and federal law, so any prosecution is a form of entrapment much like a police officer telling you to cross the street against the light and then citing you for jaywalking. Judge Breyer's refusal to allow them to present the jury with this defense, despite clear legal precedent, will likely form the basis for any appeal.
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For a statement on the verdict from Ed Rosenthal and information on what you can do to help in his appeal, visit http://www.green-aid.com.