Ed Rosenthal in front of the San Francisco federal courthouse
SAN FRANCISCO, CA -- Nearly twenty high-powered defense attorneys crowded around the judge's bench in a San Francisco federal courtroom yesterday.
The court reporter struggled to keep up with a string of names that should be familiar to anyone who keeps even a lazy eye on the world of criminal law -- Omar Figueroa, Robert Raich, Shari Greenberger, William Panzer, Nedra Ruiz appearing in place of hubby Laurence Lichter...
Soon, the opening of the hearing began to seem like roll call in the 'who's who' of medical cannabis defense attorneys.
It was an undeniable sign of one thing and one thing only -- Ed Rosenthal is going to trial once again.
For those who have followed the original case, the current circumstances will look all too familiar, with the same prosecutor, the same judge, and, to a large degree, many of the exact same charges.
Those unfamiliar with the background face a substantial learning curve. Rosenthal has a tumultuous legal history that can leave even some of his most devoted fans scratching their heads about details and chronology.
The widely-famous author begins his own account by describing how federal agents caught him naked during an early morning raid on his home in February 2002.
A year later, a jury trial in federal district court left Rosenthal with a guilty verdict on three felony counts related to his cultivation of marijuana starter plants.
The jurors had not been permitted to hear testimony that the marijuana in question was medical, which is legal under California law, or that Rosenthal had been deputized by the City of Oakland to provide the marijuana plants to local dispensaries.
Eight of the jurors recanted their verdict after learning this information had been withheld at trial. Their public outcry is credited with influencing Judge Charles Breyer's decision to hand down a jail sentence of one day, time served.
Favorable rulings continued on appeal when, in April 2006, the 9th Circuit Court overturned Rosenthal's felony convictions. But the tides shifted only months later, when Rosenthal was reindicted on the counts he's currently fighting -- marijuana charges that are remarkably similar to those he faced in 2003, along with new charge of tax evasion and an accusation of laundering a not-so-grand total of $1854.77.
Rosenthal counters that he had a good faith belief that he was not obligated to pay taxes on his cultivation because his efforts were nonprofit and humanitarian, and towards this defense his attorneys will be permitted to present evidence specific to his involvement with medical marijuana dispensaries.
Also, as the judge explained yesterday, the burden of proof would fall more heavily on the prosecution.
"The defendant would have to have a good faith belief that he didn't have to pay taxes," the brightly-bowtied Breyer said from his bench. "The burden would be on the government to prove that he didn't have this belief."
The resurrected marijuana charges and the financial charges had been packaged separately, but yesterday the judge granted a motion to have all charges heard as part of the same case. Consequently, there will be only one jury and it will be presented evidence of Rosenthal's deputization and his medical necessity for marijuana, both of which are admissible as part of his defense to the tax charges.
Those tax charges may soon be thrown out, however, due to the efforts of a medical marijuana activist group.
Working in support of Rosenthal, Joseph Elford of Americans for Safe Access authored a motion to dismiss on the basis of vindictive prosecution. The document contends that Assistant U.S. Attorney George Bevan, Jr. obtained the recent indictment in order to retaliate against Rosenthal for making comments to the press about the fairness of the case.
"There [were] a lot of things in the press about the trial being unfair," Bevan said during an October 2006 court appearance. "It was uncomfortable from my standpoint to be on the receiving end that the trial was deemed to be unfair."
At the same hearing, the prosecutor went on record to describe his motivation for seeking the latest indictment against Rosenthal.
"The purpose is this: Mr. Rosenthal, after the verdict, took to the microphones and said, I didn't get a fair trial. The jury didn't know I was growing for clubs," Bevan said to the court. "So I'm saying, this time around, he wants the financial side reflected, fine, let's air this thing out. Let's have the whole conduct before the jury: tax, money laundering, marijuana."
Elford submits Bevan's explanatory statements as proof the prosecution is penalizing Rosenthal as a result of the exercise of his free speech rights.
In addition, the motion quotes Bevan as saying that he believed the one-day sentence had been far too light, and that he would do anything necessary to ensure that Rosenthal got a more severe punishment.
Based on these allegations, Elford declares that Rosenthal is being wrongly punished for speaking to the press, and that he is also being denied the Constitutionally-protected right to be prosecuted by a disinterested party. As such, Elford writes in the motion, the indictment against Rosenthal should be dismissed.
Acknowledging the motion, Judge Breyer mused that it may only apply to the tax and money laundering charges. "One issue is whether the marijuana charges could be part of the vindictive prosecution motion, and I don't think so," Breyer said yesterday, although he has yet to consider memoranda on the matter or make a definitive ruling on whether or not he will grant an evidentiary hearing on these issues.
The judge did offer one assurance related to the marijuana charges -- that the government had declared it would not seek an enhancement of the original single-day sentence.
Supporters, reporters & attorneys gather after the hearing
It was a statement that the crowd of eager defense attorneys were quick to get from the horse's mouth and neatly stated on record. Bevan, appearing to comply with their request, stated calmly and clearly to the judge, "I accept the sentence your honor imposed. I would not request further punishment on the drug charges."
Thus satisfied, the majority of the attorneys then turned their attention to the main purpose of their appearance -- protecting the interests of their individual clients, part of a group of over 50 witnesses subpoenaed to testify against Rosenthal.
Some of them are his good friends.
Others are associates Rosenthal knew through the activist community.
Still others claim to have only been around the defendant for a matter of minutes.
In Bevan's view, however, the witnesses each fall into one of two discrete categories. "They are either purchasers, meaning customers, or they are employees," the prosecutor said simply from his stand.
But one uniting trait is that nearly all of them are reluctant to take the stand, a factor that prompted their attorneys to pose multiple questions to the judge about the consequences of refusing to testify.
Judge Breyer explained in detail that a refusal to testify would be contempt only if the government was able to establish that the witness's testimony was relevant and that it was not redundant -- that is, merely repeating the nature of the testimony from other witnesses.
But when asked about what sanctions he might impose on witnesses found to be in contempt, the judge refused to speculate.
"I won't comment on what an appropriate sanction would be until the issue is ripe for determination," Judge Breyer said dispassionately. "I couldn't be more honest. I haven't arrived at the point where I can consider that."
He did, however, issue the specific warning that sanctions imposed by a judge for contempt are separate from those that may be imposed by the government.
Given its proximity to the discussion of vindictive prosecution, the judge's warning weighed heavily on the ears of the witnesses, who were all ordered back to the courtroom for further proceedings on March 23rd, 2007, at 2:15pm. The appearance will take place in Judge Breyer's courtroom on the 19th floor of 450 Golden Gate Avenue in San Francisco, CA.
As for Rosenthal himself, he remains optimistic in the face of the emotional and financial strain of another criminal trial.
Leaving the courtroom yesterday, he was met by inquisitive reporters from as far away as the New York Times.
Once again, the nation is looking at this trial to create precedent for medical marijuana cases.
And, once again, Rosenthal repeats familiar sentiments to the public. "I was chosen for this," he says like a mantra, "and I am honored to have been chosen."
Read about the trial here:
Court Reports 
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