Activists call ruling -- sending pot king to day in prison -- the beginning of end for federal law

by Josh Richman, Oakland Tribune

Renowned marijuana activist and author Ed Rosenthal walked out of court a free man Wednesday after a federal judge sentenced him to just one day in prison -- time he already served -- for three marijuana-growing felonies.

Medical marijuana advocates across the nation hailed the ruling as a major victory and the beginning of the end for the federal ban on the drug, even though the judge said the leniency shown Rosenthal won't be shown anyone who follows in his footsteps.

And although elated by his reprieve, the self-styled "Guru of Ganja" immediately cast himself as a Moses of marijuana, exhorting the federal pharaohs to let his people go so he can lead them into the promised land of legalization.

"This is an historic day," he shouted during a fiery speech to about 200 cheering supporters outside the courthouse. "This is day one in the crusade to bring down the marijuana laws -- all the marijuana laws!"

If the federal government makes no distinction between medical and recreational marijuana use, neither will he. "All marijuana should be legal," he said, urging the immediate release of all those imprisoned for marijuana crimes. Vowing to appeal the felony convictions staining his record, Rosenthal -- flanked by his tearful wife and daughter -- railed against those who put him through this 16-month prosecution, including the judge who had set him free just minutes earlier.

"He thinks he's going to get applause for it. Not from me -- he still violated my rights," Rosenthal, 58, said of U.S. District Judge Charles R. Breyer, who kept jurors from hearing the defense Rosenthal sought to mount. "It is unacceptable, it is corrupt, and he had an agenda. Today I call on Judge Breyer -- resign!"

Prosecutors wouldn't comment on Breyer's ruling Wednesday, other than to say they hadn't yet decided whether to challenge it in the 9th U.S. Circuit Court of Appeals.

Special Agent Richard Meyer, spokesman for the Drug Enforcement Administration's San Francisco office, said Breyer's ruling won't deter agents from pursuing marijuana cases.

"Our job is not to sentence someone for a crime, our job is not to prosecute ... our job is to make the community safe, to take the illegal drugs off the street and to bring the perpetrators to justice," he said. "That's exactly what we did and that's what we plan on doing in the future."

In 1996, California voters approved a law permitting medical use of marijuana, but federal law still bans its cultivation, possession and use for any purpose. In February, DEA agents enforcing that federal law arrested Rosenthal, who has written many books and a long-running magazine column on marijuana cultivation and law.

Rosenthal had wanted to defend himself by saying the state law and an Oakland ordinance -- under which he was deemed an officer of the city permitted to grow marijuana -- immunized him from federal prosecution.

But Breyer didn't allow jurors to hear that, ruling before trial that the state and city had no authority to "deputize" Rosenthal in this way and his status under their laws was irrelevant. Jurors convicted Rosenthal on Jan. 31 but, upon learning afterward of the state and city protections, soon disavowed their verdict and rallied to Rosenthal's defense.

Breyer said Wednesday that he believed Rosenthal reasonably -- albeit erroneously -- thought the state and local laws immunized him from federal prosecution. Although not a permissible defense, the judge said, it is a mitigating factor that justifies an enormous reduction from the sentence Rosenthal otherwise would have faced.

Yet no future defendant will be able to claim this good-faith belief in immunity, Breyer said -- the rulings and the extensive news coverage this case produced put everyone on notice that states and cities cannot shield medical marijuana providers and patients from the long arm of federal law.

Two of the counts of which Rosenthal was convicted were punishable by five to 40 years in prison, the third by up to 20 years. A mandatory minimum of five years applied, but Breyer -- over Assistant U.S. Attorney George L. Bevan Jr.'s objection -- found Rosenthal eligible for a "safety valve" exception to that minimum because he had a clean record, wasn't violent, didn't hurt anyone, didn't lead others in committing his crime and provided the government with truthful information. Breyer also overruled Bevan to grant additional leniency for Rosenthal's acceptance of responsibility for his acts.

One of Rosenthal's attorneys, Dennis Riordan, acknowledged this slap-on-the-wrist sentence "does not affect the structure of the law and the legal right of people in California to grow marijuana"

But Breyer "gave us a very, very powerful weapon in the battle to convince the 9th Circuit" that Rosenthal's conviction should be overturned, Riordan said. Saying Rosenthal had a "reasonable" belief in his immunity gives the appeals court room to rule the state and city laws should have been permitted as a defense at the trial, he said -- a ruling that truly would gut the federal ban on medical marijuana.

Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws ( NORML ) in Washington, D.C., called the sentence "a great victory for Ed Rosenthal, a great victory for state's rights and a great victory for the medical use of marijuana" despite Breyer's caution that this get-out-of-jail-free card can be played only once.

"It would be foolish for any other individual to think they can use the sentencing decision in Ed's case as a precedent," Stroup acknowledged, yet "any U.S. Attorney in any of the states that have legalized medical use of marijuana are going to have to think twice now before they bring a federal prosecution against someone operating under those laws."

Even if only in this case, Breyer "has made a distinction between someone growing marijuana for medical purposes and somebody growing marijuana as a drug dealer," Stroup said, denoting "a slap in the face to the Bush administration and its head-in-the-sand position that marijuana has no medical use."

Bruce Mirken, communications director for the Marijuana Policy Project in Washington, D.C., went further: "For all practical purposes, what Judge Breyer did today was overturn the federal law banning medical marijuana.

"He cited the extraordinary circumstance of the case, but the whole reason Ed Rosenthal was prosecuted is that federal law doesn't recognize anything extraordinary or even any difference between seriously ill people and their caregivers, and common drug dealers," Mirken said. "I think Breyer's actions speak very much louder than his words, and his actions show he gets it."

In any event, the widespread attention Rosenthal's case has drawn sets an informal precedent, he said. "There will never be another jury that can be fooled the way this jury was -- this can't happen again."

Rosenthal said it more simply: "These laws are doomed."

Rosenthal will be on supervised release, the federal equivalent of probation, for three years, during which he's barred from committing any crimes or possessing any drugs. Asked if he will manage to comply with the latter requirement, the pot potentate replied, "Next question?"