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.