SMOKE CLEARS IN POT CASE

Hard Fought Federal Prosecution Ends With One-Day Sentence for Medical Marijuana Grower

by Jason Hoppin, The Recorder

When U.S. District Judge Charles Breyer handed marijuana guru Ed Rosenthal a stunning one-day sentence Wednesday, he turned what had looked like a victory for the federal government into a celebration for medical marijuana supporters.

Breyer's announcement of the time-served sentence caused Rosenthal supporters in the packed San Francisco courtroom to erupt in cheers. A parking lot across from the federal courthouse became the stage for a full-throated condemnation of Attorney General John Ashcroft, complete with loudspeakers and larger-than-life puppets. And one repentant juror, on hearing the news, burst into tears of joy.

"I can't say that the cause isn't further down the road now than it was," said Rosenthal attorney Dennis Riordan, who was hired after his client's January conviction.

A smiling San Francisco District Attorney Terence Hallinan, a big supporter of the state's medical marijuana law, said Breyer's decision "did justice."

"Hopefully, this will make [the Justice Department] think about what they're doing," Hallinan said.

But Rosenthal - despite the slap on the wrist - continued his unabashed criticism of the judge outside the courtroom.

"This judge has no honor," he said after a rally in the parking lot rented for a post-hearing press conference. "If he had honor, he would have dismissed this case in the beginning.

"He didn't want to give me a light sentence," Rosenthal continued. "He was forced to do it by public opinion."

Riordan said his client still plans to appeal Breyer's pretrial rulings barring a medical marijuana defense. Breyer wouldn't let Rosenthal's lawyers tell the jury he was growing the plants for San Francisco's HARM Reduction Center.

Riordan predicted the government would appeal Breyer's decision to depart downward from the mandatory minimum sentence. The U.S. attorney's office had no comment. Assistant U.S. Attorney George Bevan Jr. prosecuted the case.

Riordan went out of his way to distance himself from his client's comments about Breyer. On appeal, Riordan is likely to argue that Rosenthal should have been allowed to present a medical marijuana defense since his operation at an Oakland warehouse was approved by city officials. The approval gave Rosenthal a reasonable expectation that what he was doing was legal, Rosenthal and his supporters have argued.

The trial was cast as a clash between federal drug laws and California's Proposition 215, a medical marijuana initiative similar to those passed in several states. The government argued that Rosenthal was in clear violation of federal law, but United States v. Rosenthal, 02-053, gave medical marijuana advocates a national stage on which to advance their position.

Critics of the prosecution placed heavy pressure on Breyer to go easy on Rosenthal. Attorney General Bill Lockyer wrote asking for a light sentence, as did eight members of a jury that took less than a day to convict him. The New York Times used its editorial pages over the weekend to urge no prison time in a case it called a "miscarriage of justice."

Charles Sackett III, the foreman of the jury that convicted Rosenthal, said Breyer's decision was "right on. ... At one point he paraphrased a letter we sent him, so we're very pleased about that. He listened to us."

Later, Sackett embraced Rosenthal. "I'm so happy for you, sir," Sackett told the bespectacled author of several books on marijuana cultivation.

The government argued that Rosenthal should be sentenced to at least five years, and that as a leader of a marijuana operation he is not eligible for a so-called "safety valve" departure below the mandatory minimum. The probation department found that he is eligible and recommended a sentence of less than two years.

Riordan - the Riordan & Rosenthal ( no relation ) partner who was hired after the conviction - said he was not surprised that Breyer departed. "Judges agree with the probation department 90 percent of the time," Riordan said.

But Congress recently signaled its dislike of downward departures. Under the Feeney Amendment, a rider attached to the Amber Alert legislation, Breyer will have to explain his departure in writing. The explanation will be sent to federal court officials in Washington, D.C., and made available to members of Congress.

Two calls to the Justice Department were not returned, but the Drug Enforcement Agency was muted in its reaction.

"We did our job in a professional way. Our job is to conduct a criminal investigation, take the dope off the streets and refer the cases to the U.S. attorney's office for prosecution," DEA spokesman Richard Meyer said. "What happens with it after that is out of our hands."

The public regrets expressed by jurors raised the issue of jury nullification, as several claimed that, despite the letter of federal law, they never would have convicted Rosenthal if they knew he grew medical marijuana. Present at Wednesday's sentencing was Godfrey Lehman, an author of several books and pamphlets about jury rights who said he was contacted by Sackett after the verdict. Rosenthal supporters also posted billboards throughout the Bay Area reading: "Free Ed. Free the Jury."

Rory Little, a Hastings College of the Law professor and former assistant U.S. attorney, said he admired Judge Breyer for his handling of the case.

"He stood very strong in the face of a lot of public criticism to enforce the federal law," said Little, who supports the conviction but said a long sentence is unnecessary. "He appears to have considered the various purposes of punishment."