Rosenthal remains free as pot case jurors decry their own verdict

ANGELA WATERCUTTER, Associated Press Writer

Tuesday, February 4, 2003 -- SAN FRANCISCO (AP) --

In a courtroom crowded with medical marijuana advocates wearing "Free Ed" buttons, a federal judge said Tuesday that convicted marijuana guru Ed Rosenthal is not a flight risk and allowed him to remain free on $200,000 bail pending his June sentencing.

Prosecutors asked U.S. District Judge Charles Breyer to revoke the bail of Rosenthal, who faces up to an 85-year prison term when he is sentenced June 4, saying that they believed Rosenthal was a flight risk. After Breyer refused that request, Rosenthal shook hands and exchanged hugs with many supporters in the courtroom.

Rosenthal, 58, the self-described "Guru of Ganja," was convicted last Friday of cultivation and other drug charges by a jury that almost immediately questioned its own verdict. Several jurors have said they would have acquitted him had they been told he was growing medical marijuana for the city of Oakland.

"I never want to see this happen again," said jury foreman Charles Sackett, 51 of Sebastopol, reading an apology letter to Rosenthal outside the federal courthouse. "We had the integrity to follow the letter of the law in federal court. Yet I must admit that court played unfairly."

Other jurors agreed. Five of the jurors and one alternate were in the courtroom during Tuesday's bail hearing, and outside of court they said they had heard support for their actions from two others.

During the hearing Tuesday, prosecutors said that regardless of Rosenthal's position with the city, he was not a public official and the number of plants Rosenthal cultivated was still a violation of state law.

Rosenthal, who appeared outside of the San Francisco courthouse flanked on either side by his wife and 12-year-old daughter, said he doesn't blame the jurors for his conviction.

"Both the jury and I were victims of persecution, of an illegal government action," Rosenthal said, standing in front of about 30 medical marijuana advocates outside of federal court. "I have no regrets. I was helping patients."

After a two-week trial, the 12-member jury unanimously concluded that Rosenthal, a world-renowned marijuana advocate, was growing more than 100 plants, conspiring to cultivate marijuana and maintaining an Oakland warehouse for a growing operation. He was painted as a major drug manufacturer and put on little defense.

The jury was not told that Rosenthal was acting as an agent of the city of Oakland's medical marijuana program, which was an outgrowth of a 1996 medical marijuana initiative approved by California's voters.

"It's the most horrible mistake I've ever made," said juror Marney Craig, a 58-year-old Novato property manager. "I feel like we were sheep. We were manipulated."

Medical marijuana advocates gathered outside of the San Francisco courthouse both before and after Rosenthal's bail hearing, holding signs reading "Ask feds, free Ed" and "Ed is a Hero," while passing cars honked and waved in support. Those gathered, chanted "Ed we love you, we support you," when Rosenthal emerged after his hearing.

"I think that it is illegal, immoral and unethical that the jury wasn't informed that Rosenthal was deputized by the city of Oakland," said Eva Konigsberg, a 48-year-old financial consultant from Oakland, who held a sign saying "Don't throw Ed in Breyer's patch, 20 to life."

Throughout the two-week trial, Rosenthal's defense team repeatedly tried to call witnesses to testify that Rosenthal was growing medical marijuana. The judge denied those requests. The 9th U.S. Circuit Court of Appeals sided with the judge twice during mid-trial appeals.

After the verdicts were read, Rosenthal called Breyer's courtroom a "kangaroo" court.

Federal authorities have waged a campaign against the law, raiding California providers of medical marijuana. Rosenthal was arrested in one such crackdown last year.

Still, legal experts said Judge Breyer, brother of U.S. Supreme Court Justice Stephen Breyer, had federal precedent on his side when excluding defense witnesses.

Also backing Breyer, experts say, was a ruling by the U.S. Supreme Court two years ago prohibiting advocates for the sick and dying from doling out marijuana to those with a doctor's recommendation. That decision prompted a string of raids on medical marijuana growing operations throughout California. In addition, the federal government does not recognize the medical marijuana laws in nine states that have them.

Even so, some of the jurors on Rosenthal's case feel duped.

Invoking the image of Lady Justice, Craig said that the jury "allowed ourselves to be blindfolded" while the scales of evidence were uneven. She said the jurors are asking that Rosenthal receive a new trial.

Sackett said he hopes Rosenthal's case is overturned on appeal.

"I ask myself how could this have happened?" he said reading the apology letter. "The answer is that we as a jury were kept in the dark."