Come June 4, Ed Rosenthal will be back in US District Court in San Francisco, to hear what sentence Judge Charles Breyer has decided to impose. In January a California jury found him guilty of cultivating marijuana, of maintaining a place to cultivate marijuana and of conspiring with others to cultivate marijuana. He’s in his late 50s now, and he’s looking at the possibility of being hauled off to prison for the rest of his life.

Let’s all hope it won’t come to that, and that Breyer will stay his sentence, pending appeals that may end up in the US Supreme Court.

I wrote here in January about the Feds’ persecution of Rosenthal. They went after him because he’s a high-profile advocate of legalized marijuana, famous for his books and articles, not least in High Times. The charges seemed surreal. Under the terms of California’s 1996 Compassionate Use Act, OK’ing the cultivation and use of medical marijuana, the City of Oakland designated Rosenthal the legal supplier of marijuana starts to those in chronic pain.

Back then, on the eve of the trial, Rosenthal told me, “This is a tipping-point case. If they put me behind bars they are going to start closing these clubs. The clubs will have no excuse. Everyone will have to plead out. It’s really important that I win this case.”

He will win in the end, but Rosenthal lost that round in US District Court. His trial was a grim farce. Breyer (brother of Supreme Court Justice Stephen) overruled every effort of Rosenthal’s lawyers to introduce the fact that the man in the dock had been working under the aegis of the City of Oakland, abiding by the provisions of a state law approved by the voters of California.

Thus kept in the dark, and with the ground cut from under Rosenthal’s defense, the jury found him guilty. Then they stepped out of the jury box and for the first time learned the actual circumstances and background of the charges. Within days, five of them mustered in front of the courthouse to apologize publicly to Rosenthal and to proclaim their shame and indignation that they had been dragooned into this parody of justice.

I was there, and it was a thrilling occasion. San Francisco DA Terence Hallinan and SF City Supervisors Tom Ammiano and Matt Gonzalez stepped to the microphone to applaud the penitent jurors for their stand, denounce the conviction and assert California’s rights. Gonzalez, chairman of the Board of Supervisors, invoked the long tradition of jury nullification, which, had this jury known about it, would have enabled them to set aside Breyer’s instructions, consult their consciences and find Rosenthal innocent.

The next round in the case concerned precisely this issue of whether a juror can discount a judge’s instructions. In the wake of the verdict two jurors, Marney Craig and Pamela Klarkowski, disclosed to Rosenthal’s lawyers that during the trial, outside the jury room, they had discussed at least twice the issue of disobeying Breyer’s instructions. Craig said she had phoned an attorney friend, who told her forcefully and erroneously that she had to follow Breyer’s instructions and would get into big trouble if she used her own judgment. Craig had then discussed this call with Klarkowski.

Rosenthal’s lawyers went before Breyer again, arguing for a mistrial on the grounds of malfeasance by the two jurors. Though Craig took the Fifth, the facts weren’t disputed. Breyer hasn’t issued a ruling yet. On the face of it, you’d think it’s open and shut. Aside from Breyer’s outrageous restrictions, did Rosenthal get a fair trial if two jurors were secretly sitting on a piece of bad legal advice, to the effect that if they stepped outside the narrow lines drawn by Breyer they’d face serious sanctions?

But Breyer doesn’t want to order a new trial, one in which the chances of a jury aware of the background of the case and also of the possibility of nullification would be far higher. If he rejects the defense’s motion for retrial, it will be one more ground for appeal, along with the basic issue of the contradiction between state and federal laws, already being considered by the Ninth Circuit Court of Appeals.

Last September the DEA raided a marijuana club in Santa Cruz, arousing enormous rage, not least among Santa Cruz’s City Council, which has now filed suit in federal court demanding damages as well as an injunction to prevent the DEA from infringing on state affairs again. In February the Feds raided a hundred homes across the United States, seizing glass bongs and kindred materials. They made more than fifty arrests, even though they found no drugs and even though, in California and other states, possession of marijuana pipes has been decriminalized.

So, just as Rosenthal predicted to me, the Feds took the guilty verdict as a green light. Across California people acting within the terms of the 1996 California statute have every reason to fear that the DEA will come crashing through the door and that federal judges like Breyer will back up their right to do so. Down in Los Angeles people involved in medical marijuana activities have pleaded guilty, not prepared to risk the possible twenty-year sentence that Rosenthal is staring at.

The only silver lining thus far, aside from the edifying stance of principle taken by Ed Rosenthal, is that the issue of jury discretion, or jury nullification, is on the front burner again. In the days after Rosenthal’s conviction about half of his jurors began to proclaim publicly their disillusionment with the justice system as disposed by Judge Breyer. You could hear intense seminars on jury nullification on at least one of San Francisco’s biggest AM stations.

Hey, nullification worked for John Peter Zenger and for those nineteenth-century folk charged with sheltering runaway slaves. As antislavery sentiment grew, juries wouldn’t convict them. You’ve been called to serve on a jury? I strongly recommend that you take the time to study a useful little guide drawn up by Clay Conrad, chairman of the Fully Informed Jury Association. You can find it at Money to help with Ed Rosenthal’s defense should go to And yes, this is a Republican Administration rhetorically committed to states’ rights. Bush himself made a campaign issue of it.