Ninth Circuit Court Hears Rosenthal Case
by Steve Kubby

SAN FRANCISCO — A three judge panel for the Ninth Circuit Court of Appeals heard arguments this morning for granting a new trial to Ed Rosenthal.

The high-profile case of author and medical marijuana advocate Ed Rosenthal returned to the courtroom this morning and oral arguments were heard to determine whether Rosenthal was denied his rights during a retrial in May 2007 on cultivation charges. Rosenthal maintains that his conviction should be thrown out because he was not allowed to present a complete defense to the jury.

Rosenthal’s lead attorney, Michael Clough, argued that Rosenthal was denied his 5th amendment rights to present a defense and witnesses to collaborate his testimony.

The government argued that anything other than whether or not Rosenthal knew he was growing marijuana is irrelevant and that Rosenthal wanted to use “irrelevant information,” which would have caused to jury to side with him and free him in an act of jury nulification. In fact, the government repeatedly raised the specter of “Jury Nulification,” as if it were a terrorist act.

U.S. v. Rosenthal, a case that epitomizes the clash between state and federal marijuana laws, has taken many turns in its six-year history. Although Rosenthal ended up with a sentence for one day of time already served, he is determined to force a new trial.

“I’m a soldier in the movement to change the marijuana laws and every case is important,” said Rosenthal.

In 2003, Rosenthal was convicted for growing and distributing marijuana, even though he was deputized by Oakland city officials to do so as part of the city’s efforts to promote safe distribution of marijuana to patients under California’s Prop 215. After the Ninth Circuit overturned his conviction in 2006 due to juror misconduct, Rosenthal was retried and convicted in a second trial described by Rosenthal’s appellate brief as “little more than a long, drawn out directed verdict.”

The Ninth Circuit Court of Appeals heard Rosenthal’s second appeal, which argues that defendants have a fundamental right to present a complete and effective defense in cases where there is a conflict between state and federal law. To date, 13 states having enacted medical marijuana laws, despite the federal prohibition on all uses of the drug.

Among the specific questions that Clough asked the appellate panel to decide are:

(1) Whether the jury should have been allowed to hear evidence that Rosenthal acted on a good faith belief that he had been deputized by the City of Oakland.

(2) Whether, given the complex and unsettled nature of constitutional precedents governing differences in federal and state laws with regard to issues such as medical marijuana, Rosenthal should have been allowed to present a defense based on mistake of law.

(3) Whether Rosenthal should have been allowed to offer testimony by Oakland city officials to refute the allegation that he was involved in an unlawful conspiracy.

(4) Whether the trial judge, U.S. District Court Judge Charles Breyer, denied Rosenthal’s constitutional right to testify in his own defense when he ruled that Rosenthal could testify but would not be allowed to present witnesses to corroborate his claim that he believed he was lawfully acting to further regulations enacted by the Oakland city council to ensure the safe distribution of marijuana to patients.

The Rosenthal case began in February 2002, when he was arrested along with several others in federal raids timed to coincide with a speech in San Francisco by DEA Director Asa Hutchinson. After a trial that generated major media coverage, Rosenthal was convicted a year later. The majority of the jurors, however, recanted the next day, setting off another flurry of press coverage, including segments on Dateline, NPR and CNN.

In a dramatic departure from federal sentencing guidelines, Judge Breyer sentenced Rosenthal on June 4, 2003 to a one-day sentence, with credit for time served. Rosenthal nonetheless appealed on principle, and was granted a new trial by the Ninth Circuit in April 2006. “No one should be made a felon for doing humanitarian work on behalf of their community,” Rosenthal said “The Federal Government continues to treat patients like criminals.”

Posted to IPR by Paulie