Ed Rosenthal in his marijuana robe, outside the San Francisco federal courthouse
SAN FRANCISCO, CA -- Medical marijuana defendant Ed Rosenthal entered the courtroom like a celebrated prizefighter yesterday, striding through the doors in a robe embellished with pot leaves, his entourage of prestigious attorneys following close behind.
With a boxer's poise and confidence, he approached the defense stand to receive the challenge from Assistant U.S. Attorney George Bevan Jr.
Within moments, it was official -- the government formally declared that it will go forward on its re-match with the guru of ganja.
If successful, the prosecution would land Rosenthal with the benign sentence of time served, but also mark him as a criminal.
If the defense wins, however, the verdict will exonerate a medical marijuana hero by allowing him to be found innocent in the same court where he was convicted four years ago.
In 2003, Rosenthal was tried in U.S. District Court for his cultivation of starter plants intended for medical marijuana dispensaries. Since federal prohibitions conflict with state laws allowing the physician-approved use of marijuana, the jury was never allowed to hear evidence of Rosenthal's medical defense. After they had convicted him, the jurors were outraged to learn that this evidence had been withheld, and the majority of them went on to publicly recant their verdict. Influenced by the outcry, Judge Charles Breyer sentenced Rosenthal to just one day in jail -- time he had already served.
Though relieved of the threat of a prison term, Rosenthal nonetheless emerged from trial a convicted felon. It was a category that not only carried a social stigma, but also deprived him of certain civil privileges like the ability to vote...and for an ardent activist like Rosenthal, this was no small matter. He fought his conviction on appeal and eventually had it overturned by the 9th U.S. Circuit Court in April 2006.
But the 9th Circuit had also remanded the case, and the ball went back into the U.S. Attorney's court. In October 2006, Bevan presented a re-indictment that was so aggressive that Judge Breyer ultimately dismissed the majority of the charges on the grounds of "vindictive prosecution." Since the remaining charges carry no additional penalties for Rosenthal, some speculated that the U.S. Attorney might throw in the towel on the case.
The government, however, stuck to its guns and pushed forward with the prosecution. It was a situation that left many, including the judge himself, wondering about the purpose of continuing with a second trial.
While warning that the proceedings may be a waste of resources, Judge Breyer intentionally set Friday the 13th of April as the deadline for the government's decision to prosecute. "I can't imagine a better day," Breyer said while scheduling the deadline.
If he had anticipated that the ominous date would deal a death blow to the case, then superstition failed him bitterly.
Activist group Axis of Love protests the prosecution of Ed Rosenthal
And if the judge had hoped to assign responsibility for the decision to prosecute, then he was left disappointed on that matter as well.
The government simply wasn't talking.
Puzzled by Bevan's denial of blame for the re-indictment, Judge Breyer pressed the prosecutor for specifics.
"The decision has been made to go forward with this prosecution," the judge summarized the situation from his bench. "I think that I am entitled to know -- I think that the public is entitled to know -- who has made that decision."
Bevan stood silent, offering nothing outright. Upon further questioning, he affirmed that the responsible party was the U.S. Attorney for the Northern District of California, but he refused to comment on whether the Department of Justice was consulted.
"I don't know that, and even if I did, I am not in the position to answer that," Bevan said firmly.
But the prosecutor isn't the only one in the case who's refusing to talk. And he's also not the only one who will get away with it.
A critical matter in this trial is the issue of recalcitrant witnesses -- dozens of Rosenthal's acquaintances who have been subpoenaed by the prosecution and who have indicated their resistance to giving testimony in the case.
In court yesterday, Bevan requested a pre-trial hearing expressly for the purpose of questioning these witnesses on the stand. "There are key people -- employees -- that we regard as co-conspirators," the prosecutor declared, going on to name medical marijuana activists Jeff Jones and Debbie Goldsberry as particular members of this category.
Judge Breyer was skeptical of Bevan's assertions. "If it's established that these people refuse to testify, what's the point of putting them on the stand and asking them to do so?" The judge paused momentarily for effect after this rhetorical question, then cut to the chase. "I am only in the position to enforce civil contempt against them," Breyer explained, finally asking the prosecutor if he would indeed seek such charges.
But Bevan knew he was beat on this matter. "The witnesses have lawyered up," he said with a tone of defeat, acknowledging their coordinated legal resistance to testifying. After beating around the bush for a while, Bevan conceded that he would not ask the judge to put the uncooperative witnesses behind bars. " I don't think jailing them would convince them to testify," he admitted plainly.
Defense attorney Omar Figueroa bemoans the case's cost to taxpayers
Outside the courtroom, defense attorney Omar Figueroa compared the government's subpoenas to Communist witch-hunts prevalent during the McCarthy era. According to Figueroa, the prosecution's efforts have been an attempt to "suppress dissent" and to "punish people for their opinions."
Such injustice, Figueroa argued, has an increasingly high price tag. With the defense now bringing a courtroom motion for the government to pay all attorney's fees, the total price of the case promises to skyrocket beyond its already-astronomical costs.
"American taxpayers will have to pay not only for this baseless prosecution, but also for the defense to this baseless prosecution," Figueroa told reporters ardently. "The taxpayers are having to pay for it twice."
The cost of the prosecution, according to Rosenthal, has hit the $6 million mark and continues to climb. It seems a high bill for a case where prison time is no longer a threat and where the only battle appears to be one man's official status as a "criminal."
But Rosenthal sees more at stake than simply his personal exoneration. "This is a tipping-point case about whether patients in this country will be able to receive their medicine free of harassment," he told news reporters yesterday.
Ed Rosenthal talks to the press beside attorney Robert Ampar?n
And the defense team is quite confident of its ability to successfully mount a medical defense for Rosenthal this time around. "We are bringing in motions to present evidence under several different legal theories," attorney Robert Amparán declared. "We hope to let the jury know the whole truth, not Mr. Bevan's half-truths."
Grinning proudly in his boxer's regalia, Rosenthal seemed fully prepared to face his challengers.
Asked if he would be wearing the same outfit for the entire trial, Rosenthal promised there would be various costumery to come. He then looked straight into the news cameras to deliver his parting punch, "We look forward to a prosecution of the prosecution," he said with a knowing smile.
Rosenthal's trial is scheduled to begin on May 14th, 2007, in Courtroom 8 at 450 Golden Gate Avenue in San Francisco, CA. There will be a confirmation hearing prior to this, at the same location, at 2:15pm on April 20th, 2007.
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