Medical marijuana advocate and author Ed Rosenthal told the
U.S. District Court today that he would be presenting no witnesses
in his defense against federal charges of marijuana cultivation
and distribution, saying the government had failed to prove
its case. In a proceeding held outside the presence of the
jury, Judge Charles Breyer said that the matter of additional
government witnesses had to be decided on Friday, so he was
dismissing the jury until Tuesday, at which time the defense
could announce its intentions.
After the jury was called in, the prosecution introduced
two more documents and rested its case, subject to a decision
on those remaining witnesses. The government is still trying
to force several people associated with Rosenthal to testify,
though the witnesses have indicated they will not testify
against him, even if they are given immunity and found in
contempt for remaining silent.
A hearing at 2:00pm Friday will determine if any of them
can provide relevant testimony that has not already been covered
by other witnesses. If the court determines that they might,
then they can be put on the stand and questioned under an
immunity order from the government that prevents them from
invoking their Fifth Amendment right against self incrimination.
If they still refuse, Judge Breyer has said he is required
to find them in contempt. But what remedy is to be used to
try to compel their testimony remains in question.
At an earlier, pre-trial hearing on the matter, Assistant
U.S. Attorney George Bevan, Jr. told the court that he did
not think that even incarcerating the "recalcitrant"
witnesses for contempt would be likely to compel their testimony,
since their reluctance to testify against Mr Rosenthal was
"cause related."
Judge Breyer noted that as a matter of law the remedy must
be designed to elicit the testimony sought, so without an
expectation of compliance, he cannot legally jail them.
The witnesses and their attorneys, along with Mr Rosenthal
and his defense counsel, are to appear before Judge Breyer
Friday to consider the matter. In the meantime, the prosecution
has been ordered to tell the court and the defense what evidence
they believe each witness would provide.
The court warned defense counsel that if they argue that
the government's case is insufficient because the witnesses
produced are not credible, then allowing more witnesses to
testify to the same facts could be allowed as corroboration.
If the "recalcitrant witness" matter is resolved
without their testimony, then closing arguments will be presented
on Thursday morning, beginning at 8:30am.
Rosenthal is fighting a retrial on three charges related
to cultivating medical marijuana, as well as two additional
counts related to distribution of marijuana to patients.
An appeals court last year overturned Rosenthal's 2003 conviction
on three felony marijuana counts. The U.S. Attorney's Office
brought new charges against Rosenthal last October, but Judge
Breyer dismissed the bulk of them as "vindictive prosecution."
If convicted of the remaining marijuana charges, Rosenthal
faces no time or other penalty, as he has already served his
one-day sentence and three years of supervised release.
WHAT: Hearing on recalcitrant witnesses
WHEN: Friday, May 25, 2007 at 2:00pm
WHO: Nine potential witnesses, their counsel, Ed Rosenthal
and his attorneys, Robert Amparan, Shari Greenberger and Omar
Figueroa
WHERE: Courtroom of U.S. District Judge Charles Breyer,
19th Floor, Federal Building, 450 Golden Gate, San Francisco.
