SAN FRANCISCO, CA -- Judge Charles R. Breyer's courtroom was remarkably sedate today, with staff yawning through an uneventful status conference on ATM fee antitrust litigation and counting the hours until the weekend would begin.
The routine hearing bore no resemblance to the proceedings that Judge Breyer had originally scheduled for March 23rd. Today was supposed to bring to court dozens of high-profile witnesses for the monumental second trial of famed medical marijuana activist Ed Rosenthal.
But in spite of high-running tensions and acute anticipation, it appears as if the trial of the so-called "guru of ganja" may never even get off the ground.
Joined by attorneys Omar Figueroa and Shari Greenberger, Ed Rosenthal celebrates a win on his vindictive prosecution motion
The current case against Rosenthal has been staggering ever since last week's ruling by Judge Breyer, which dismissed the majority of the charges on grounds of vindictive prosecution.
At issue was whether Assistant U.S. Attorney George Bevan, Jr., had brought new charges against Rosenthal in order to punish him for publicly criticizing his first trial, as well as to retaliate against him for the success of his appeal in the 9th Circuit Court.
Rosenthal, who received a one-day sentence from Judge Breyer in 2003, had his conviction on marijuana cultivation charges overturned by the 9th Circuit Court last year. The U.S. Attorney promptly responded by seeking a grand jury indictment that added new tax evasion and money laundering counts to the familiar cultivation charges.
Describing the motivation for seeking trial yet again, Bevan went on record saying that he acted because he felt uncomfortable with statements in the press that alleged Rosenthal's first prosecution had been unfair. "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 explained to the court on October 25th, 2006. "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."
In Judge Breyer's eyes, the vindictiveness was evident, and he outlined his views compellingly in a ruling issued on March 14th, 2007. Although he left the cultivation charges intact, the judge decided that the addition of the financial counts was a retaliatory move on the part of the prosecution.
"In other words, the government's deeds -- and words -- create the perception that it added the new charges to make Mr. Rosenthal look like a common criminal and thus dissipate the criticism heaped on the government after the first trial," Judge Breyer wrote in his ruling. "The new tax and money laundering charges...create the risk of a substantial increase in prison time and thus have a chilling effect on future defendants; the reasonable observer will interpret the government's conduct as demonstrating that if defendants successfully appeal, the government will ensure that they face more severe charges and more prison time the next time around."
Those words eliminated the money-related counts, hollowing out the case and leaving only the increasingly-familiar marijuana charges.
It was a devastating blow to the prosecution.
Comedian Tommy Chong receives an achievement award from Ed Rosenthal after delivering a speech about Ed's case at a recent benefit
Bevan had pinned all his hopes on the doomed claims of tax evasion and money laundering, even to the extent of relinquishing the option to pursue additional penalties on the cultivation charges. "I would not request further punishment on the drug charges," the prosecutor promised during a hearing earlier this month.
Unless Bevan acts soon to appeal the judge's ruling, Rosenthal looks to be in the clear, with the maximum sentence already under his belt.
"The government gave Ed power," comedian Tommy Chong told a crowd during a fundraiser at the Rosenthal residence earlier this month. "Now they wish they hadn't prosecuted him. He's such a warm spirit, there's no jail in the world that will take him."
As for the dozens of witnesses subpoenaed to testify in the case, few are so confident or comfortable with the situation. Their refusal to testify against Rosenthal subjects them to charges of contempt, which could easily land any of them with jail sentences far exceeding the time served by the defendant. Although Judge Breyer has steadfastly resisted discussing penalties he might impose for contempt, his silence is little reassurance for the witnesses themselves.
Their salvation may come with Bevan throwing in the towel, or so they hope. During a hearing last week, Judge Breyer postponed the impending trial while making repeated hints to the prosecutor that he should drop the case entirely.
The judge's rhetoric urged Bevan to consider whether a trial would be an appropriate use of the resources of the government and the court. "In light of the law, is anything served by continuing with the prosecution?" the judge asked from his bench last Friday. "The government should have the appropriate time to consider that they have to live with that judgment, as do we all."
Defense attorney Robert Ampar?n addresses a large crowd of reporters outside the federal courthouse in San Francisco
Faith in the prosecutor's judgment was not so easily managed for some, however.
Robert Amparán quickly came forward from the defense team to argue a motion to disqualify Bevan from the case. "Unfortunately, we have a prosecutor who is moving forward consistently with blinders on," the defense attorney said emphatically. "He's disregarding information about preparation, disregarding information about evidence, disregarding information about witnesses..."
Judge Breyer would hear none of it, his festive bowtie quivering as he championed Bevan and asserted definitively that there was no basis to disqualify him as prosecutor. "The fact that he has been vigorous, the fact that he sees the case a certain way and made statements that were brought to the court's view, does not reflect on Mr. Bevan's ability to prosecute this case," the judge declared. "I do not consider him to be biased, prejudiced, or incapable of exercising his responsibilities under the law."
Undaunted by the denial, the defense switched gears and challenged Bevan's request for a continuance. Attorney Shari Greenberger took the lead on this effort, telling the judge that the prosecutor had previously blocked the defense team's requests for additional time.
It was an argument that Judge Breyer appeared to regard as juvenile. "I won't try this case on the basis of tit-for-tat," he said with notable exasperation, before turning to discuss the issue of Bevan's preparation. "He's ready for trial and he's always been ready for trial. The question is whether there should be a trial."
After further discourse on the need for "careful and dispassionate reflection on the appropriate way the justice system should work," the court set the next date for proceedings on the case. The judge seemed delighted to choose Friday the 13th of April, smiling brightly while proclaiming, "I can't imagine a better day!"
Before concluding, Judge Breyer left Rosenthal's attorneys with a final, weighty suggestion. "The defense should not spend the next 30 days preparing for this case," he told them deliberately, looking directly down from his bench for emphasis. "This time is for the prosecutor to decide whether he wants to go ahead with this case."
Outside the courtroom, Amparán expressed his skepticism of Breyer's advice. "The judge has said to not work on this right now," Amparán explained to the reporters that swarmed around him. "[The judge] thinks the government will do the right thing, but I fear the government more than that, from what I've seen so far."
Rosenthal himself had a far different perspective to showcase for the news media, using the spotlight to challenge the prosecution to continue the fight. "I hope he does go ahead with his case," Rosenthal said plainly of Bevan. "I think he should. I think it would be foolish of him not to go through with it."
The reason for daring the prosecution? Rosenthal explained to reporters that he has a strong case, which would be bolstered by additional claims of misconduct by the prosecution. When asked what was next in the defense's plan, he pulled no punches and declared, "Now we're going to prove that Bevan has been bribing the witnesses!"
As usual, though, there is more to Rosenthal's strategy than accusations and swaggering bravado. When pressed, he admits that he sees his case as part of a broader fight for justice, believing that another trial would set an important precedent for medical marijuana defendants in federal court. "When the jury comes back with the verdict on the marijuana charges," Rosenthal predicts, "that will be the end of federal prosecutions."
Ed Rosenthal will appear in court again on Friday, April 13th at 11am in front of Judge Charles R. Breyer at 450 Golden Gate Avenue in San Francisco, CA. By this time, the government will have decided whether it chooses to appeal the dismissal of the tax & money laundering charges, proceed to trial on the marijuana charges, or drop the entire case against Rosenthal.
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