What the hell happened?

Seven years earlier; California voters had approved Proposition 215. It stated that sick people who had a doctor's recommendation could use marijuana to alleviate pain, to relieve nausea that accompanies chemotherapy, to restore appetite.

City officials in Oakland passed an ordinance designating a local cannabis club as an official source for medical pot. It issued Ed Rosenthal a license to grow and distribute the drug to a medical co-op. Rosenthal, who has written 20 books on marijuana took over an warehouse and cultivated plants.

California's attorney general, Bill Lockyer, urged the Drug Enforcement Administration to adopt guidelines on medical marijuana that would show "a proper sense of balance, proportion and respect for states' rights." DEA chief Asa Hutchinson shot him down: "Surely you are not recommending we sidestep our country's long-standing practice of rigorous scientific research before declaring a potentially harmful drug to be medicine. The FDA has never in the past approved medicine by popular referendum." (What Hutchinson didn't mention is that the feds must approve any study using actual marijuana. So far they have refused to do so.) The DEA chief added, without citing evidence, that "medical marijuana laws are being abused to facilitate traditional illegal trafficking."

On February 12, 2002, the same day Hutchinson gave a speech in San Francisco praising the war on drugs, federal agents raided Rosenthal's warehouse. They seized 3163 plants and arrested the man who had grown them. When Hutchinson boasted about the arrest during his speech, his audience booed.

A DEA spokesman told reporters: "There is no such thing as medical marijuana. We are Americans first, Califor-nians second."

U.S. District Judge Charles Breyer, brother of U.S. Supreme Court Justice Stephen Breyer, caught the case. In pretrial hearings he ruled that the defense could not mention Proposition 215. Oakland officials could not testify that they had given Rosenthal a license. He refused to let a county supervisor discuss the defendant's motives for growing pot or describe the work he'd done for the city. Breyer also blocked the appearance of several character witnesses.

In a pretrial motion, Rosenthal's lawyers argued for immunity, citing a law that protects federal, state and local officials who possess or transport illegal drugs as part of their jobs (e.g., taking evidence to court, working undercover). The judge wouldn't have it. Congress intended the law to protect cops, not caregivers. Breyer also prohibited a defense based on the doctrine of "entrapment by estoppel"- that is, a traffic cop can't tell you it's OK to cross against the light, then ticket you for jaywalking.

During jury selection, Breyer stacked the deck. He questioned 80 potential panelists, weeding out those who had positive opinions about medical marijuana, who had voted for Proposition 215 or who understood the conflict between state and federal law and favored the former. These decisions eliminated Rosenthal's defense before it even began.
Supporters paid for billboards emblazoned with the message COMPASSION, NOT FEDERAL PRISON. Protesters stood outside the courthouse, their mouths taped shut.

In his closing remarks, a prosecutor told the jury: "Cultivation of marijuana is a federal offense. Period. Nothing else matters." As for the vote on Proposition 215, the prosecutor said: "This is a federal courtroom. It is not a polling place."

Judge Breyer's remarks were even more dismissive. The judge had told the jurors to disregard the 1996 vote. "You are not to consider the purpose' for which the marijuana was grown. You cannot substitute your sense of justice, whatever that is, for your duty to follow the law."

Jurors delivered the verdict the government wanted. Then they rebelled. They told reporters that they had felt manipulated, intimidated and controlled. One juror reportedly worried the judge would send them to jail if they voted their conscience. When the panel realized it had been duped, its foreman read a public letter of apology: "I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy and regulation, as well as doctor and patient rights, and indeed your family, are irrelevant to this case." Another juror added: "I did something so profoundly wrong that it will haunt me for the rest of my life. I helped send a man to prison who does not belong there." So much for justice.

Judge Breyer will sentence Ed Rosenthal on June 4. The man with the benevolent green thumb faces at least five and as many as 85 years in federal prison.

Asa Hutchinson has moved on to tackle homeland security.