The Bust, the First Trial, the Appeal, the New Charges
by Ed Rosenthal

On Feb. 12, 2002 at about 6 AM there was a thunderous banging on my door. I ran downstairs naked thinking that my neighbor who lived a somewhat chaotic lifestyle needed help. Instead, I was confronted by a mixed posse of federal agents who had come to arrest me and to search my house for evidence. They knew I wasn’t packing. Everything was in full view. At the same time other teams were raiding my nursery and still others were attacking a medical marijuana dispensary and arresting one of its managers.

The raid was planned in Washington as a publicity/celebrity arrest. Asa Hutchinson, Director of the DEA, was in town for the occasion and had a series of appearances planned. His first was an interview on a local radio station at 8 AM. By that time word about my arrest had spread on the internet and Hutchinson was barraged with negative responses when the air was opened to listeners.Meanwhile, I was being transported from my Oakland home to booking at the DEA headquarters in San Francisco. As we crossed the Bay Bridge I knew that this was going to be a major case, that I would never plead out and that the government was going after me because of who I am, what I represent and the damage that I have done to their programs and intentions over the years.On the other hand, I thought, they should really be giving me an award. Where would the DEA marijuana program have been without my help? After all, the more growers the bigger the DEA’s anti-marijuana program.

My arrest triggered an incredibly positive reaction towards me in many communities. It started when I was taken to the Alameda County Jail, where the feds board their arrestees. When Jimmy Halloran, who later turned into a government informant, and I entered the jail, we were greeted as heroes. Some of the comments from the other prisoners were: “You saved my grandma’s life. God bless you.” “You see these guys, me included, we’re supposed to be here. But you aren’t. You’re a good man.” Other prisoners offered us the best seats, filled out our forms, bought us candy and tried to make us feel at home.As much as I liked the other prisoners and their concern for my welfare, I was glad to be released after making bail of $500,000 secured by property. The evening of my arrest, Hutchinson spoke at the San Francisco Commonwealth Club. The audience of this intellectual lecture group broke through the usual decorum with shouts of liar, and worse. Questions from the audience were one sided because there were none in favor of Hutchinson’s position. Meanwhile, a demonstration was taking place outside. Among the protesters was Terence Hallinan, San Francisco District Attorney, who was using a bullhorn to make choice remarks about Mr. Hutchinson, the DEA and their actions. I’m sorry I couldn’t be there to experience it but as I mentioned, I was previously engaged.

My good friend and fellow activist Debbie Goldsberry, who is the founder of Cannabis Action Network, was so incensed by the arrest that she hired Steph Sherer to start Americans for Safe Access (ASA). A fledgling organization at the time, it played a major roll in handling the logistics of publicity for the case. Now they have grown into a premier national organization helping assure medical marijuana patients their rights.At about the same time another activist, Virginia Resner, who wrote the book, Shattered Lives, with Micki Norris and Chris Conrad, and had worked with Families Against Mandatory Minimums, started Green Aid, The Medical Marijuana Legal Defense and Education Fund, an organization that helps support cutting edge court cases that challenge unjust laws. I became Green Aid’s first client.

At a press conference before the trial my daughter Justine, who was 11 at the time, was asked how she felt about things. She said, “My dad helps sick people. My dad’s a hero.” “My Dad’s a Hero” ran as a headline in a local daily together with a picture of the two of us embracing. The story was picked up locally on radio and TV and then ran nationally and internationally. Justine’s poignant statement had more than a transient impact. For years the government had used the argument that allowing medical marijuana would confuse children and send the wrong message. Justine’s four words imploded that whole advertising campaign that had cost the government millions to publicize.

The trial took place almost a year later in January 2003. The die was set at the pre-trial hearings. My attorney for that part of the case, Ephraim Margolin, is a renowned constitutional scholar and pre-eminent in the legal profession. His motions in the case concerned the information that the jury would be allowed to hear. The judge, Charles Breyer, of the 9^th District Court in San Francisco, listened to the pre-trial witnesses such as former Oakland, CA City Councilman Nate Miley and Assistant City Attorney Barbara Parker explain that I was an “Officer of the City” authorized to distribute marijuana to medical patients. After listening to them explain that in order to assure a supply of medical marijuana to patients the City Council had deputized a limited number of people to provide medical marijuana to patients. Using convoluted arguments Judge Breyer ruled that the jury would not be allowed to hear their testimony. He ruled that the facts that I was a City Officer carrying out my duly authorized business and that I was providing marijuana to medical facilities that distributed it to patients were irrelevant to the case, and not to be heard by the jurors.

To set the matter straight, I was deputized by the City of Oakland to grow clones, that is, starter plants, to help patients and their caregivers to grow their own. Rather than giving them to patients directly, I supplied several medical marijuana facilities, which were in a better position to analyze patients’ needs.The judge also ruled that since I was charged with marijuana cultivation, conspiracy to cultivate and maintaining a place where marijuana was cultivated, but not distribution, the jury could not learn where the clones went. Although these strait-jacket rulings meant no discussion of medical marijuana (not the whole truth- the partial truth) the judge questioned the jury pool of 51 members and dismissed any who said they agreed with the medical marijuana laws. That was 19 members. We made a tactical mistake by not objecting. We thought the discussion in front of the remaining jurors would itself educate them about what this trial was really about.

We had been getting some publicity in the local media and even some national coverage. However, the day of the trial The New York Times ran a feature story about my predicament on page 1. Then they covered the trial and the verdict. Coverage by The NY Times did more for normalization of marijuana than all the work that I had done in the previous 35 years. When they gave a sympathetic peek at the medical marijuana world they gave it a respectability that it had never had before. Taking their cue from the old lady of journalism, other papers and magazines took the quotation marks off the term “medical marijuana”.

The trial started and the government paraded two main witnesses. The first was Bob Martin, who to this day owns two medical marijuana dispensaries, and the other was Jimmy Halloran, a former partner who was arrested at the same time I was. Both of these people were intimidated into cooperating with the government.

The trial was a lopsided circus. The judge would not let us call the witnesses we wanted, took over cross examination of several state witnesses to prevent the jury from hearing the full truth and prevented us from presenting our case. After a trial that lasted about a week I was convicted of all three charges. Some people in the courtroom started weeping. There were wails of dismay, pain and anger. Then the prosecutor shocked everyone, including the judge, by requesting that the court remand me to custody since the crimes I was convicted of had a mandatory minimum of at least five years. There was silence as the courtroom, taken aback by this sudden development. The judge postponed a hearing on the prosecutor’s motion for four days, until Tuesday, after the weekend.

As this was happening, the jury was exiting via a back exit. As they entered the hallway they encountered Hilary McQuie, co-director of ASA. She told them that they had been misled and advised them to find out more about the trial and then contact the media. Several hours later San Francisco newspapers started to get calls from the jurors, who said that they had convicted me because they didn’t have access to the whole truth. The hearing was held on Tuesday and the judge looked cheery as he strode into the room with his black robe flowing behind him. A quick look to the left changed his demeanor. He could easily see six of the jurors and one alternate in the front row of benches. They didn’t look like they were happy with his Honor and his conduct during the trial. The judge decided to let me stay loose until sentencing.

Eight of the 12 jurors and one alternate repudiated their verdict. While this had no legal standing, it was the first time to my knowledge that the majority of the jury had reversed its decision. They used terms such as “conned” and that they “felt dirty” regarding the way the trial was conducted. Several of the jurors became activists for a while and most of them said they did not think they would ever trust the government again. After my conviction the New York Times ran an editorial titled ‘Misguided Marijuana War’. Then just before sentencing, it ran another editorial calling for a lenient sentence. This attention by the newspaper became a rallying point for major media and journalists to criticize federal policies that criminalized medical users and their providers, especially in states that had legalized its use.

Among the columnists who covered the issue were Alan Dershowitz (Penthouse), William F. Buckley (National Review), and Stone Phillips who produced a segment on the trial for NBC Dateline. Additionally, virtually every major urban newspaper carried supportive editorials.

The sentencing hearing took place in June. The prosecutor had recommended 5 years, the investigating probation officer had decided on 21 months and my appeals attorney, Dennis Riordan, recommended one day, time served. The judge went with the one day sentence, finally admitting that I was a City Officer and that there were extenuating circumstances. Since I had already served more than 37 hours, the government still owed me a day.Outside the court ASA arranged a big press conference outside the courthouse. Various activists and lawyers praised the judge for his enlightened sentence. When it came my time, I had a different message. “This judge did me no favors. He (his courtroom decisions) made me into a felon. No one should go to jail for marijuana. Free all marijuana prisoners.”

I appealed the conviction based on three arguments. The first that I was an Officer of the City and according to federal law, an officer of the city is free from arrest and prosecution when carrying the city’s drug policy. That was the reason the City Council passed the ordinance, to protect providers. This fact was kept from the jury per the judge’s decision to not allow the whole truth to be told.

The second reason was estoppel. Even if the City Attorney’s office was wrong or misguided I relied on this government authority and should not be punished for the actions I took based on this erroneous information.

The third basis for the appeal was information supplied after the verdict came in that one of the jurors had consulted with an attorney who advised her that she could get in “big trouble” if she voted against the directions of the judge. Both she, and another juror then felt intimidated about voting not guilty.

The Appeals Court affirmed the trial court’s decisions regarding telling the whole truth and estoppels, but sided with us on the jury intimidation issue. They voided the conviction but affirmed my one day sentence. Something like what the red queen said in Alice in Wonderland: “Off with his head, then the trial.” The prosecutor was free to retry me.The prosecutor has a special hatred for me that is based on a multitude of issues. Firstly, I am notorious for my writing and political activism. Secondly, I was one of many people who helped Prop. 215, The Medical Marijuana Initiative, pass. Thirdly, I had been an expert witness in several cases in which the defendants had been saved from the jaws of federal incarceration. Fourthly, I was attempting to normalize the medical marijuana industry, calling for standards and testing of medicine while working with my local government to develop policies and procedural ordinances. That is a pretty good combination of factors. However, the one that made him come undone was the fact that we had outed him as a liar. When a person testifies at a trial, their previous testimony for the (Star Chamber) Grand Jury is provided to the defense. In the midst of a DEA agent’s testimony there was a soliloquy by none other than the prosecutor, George Bevan, saying that he wasn’t interested in closing medical marijuana facilities. When we pointed out to the court that Bevan was closing down medical marijuana facilities the judge agreed that Bevan “misled” the grand jurors but that there was no harm done. Nevertheless, in finding that he misled the Grand Jury, the judge branded Bevan as being disingenuous. Since that time I have been very public that the prosecutor of this case is a liar.

Bevan the “Persecutor” refused to accept my time served after the conviction was overturned. He called a new Grand Jury and subpoenaed many witnesses, most of whom refused to testify at the hearing. The government only offered them partial immunity. They said they wouldn’t testify without full immunity. Here’s the difference: with partial immunity the government can still try you on things you testified about as long as they develop the information “independently” of the testimony. Under full immunity you cannot be held for crimes you testified about.

As I am writing this I am under indictment on 14 counts including the three original charges, an additional two distribution charges, money laundering (four checks totaling $1854.77) and five counts of filing false tax returns or amended tax returns.

The importance of my case is that the government wants to use a conviction in this case as a wedge to close down medical marijuana dispensaries throughout northern California. This is a tipping point case in the fight for legal medical marijuana and civilly regulated marijuana for all. The government has spent over $6,000,000 on this case. They have called 65 witnesses and they hope to make this a show trial that will end medical marijuana in California once and for all. They even sent an agent out on New Years Day to interview a potential witness. The government’s tactic is to intimidate witnesses, fellow defendants and anyone else who the government suspects might have information useful to them.

After searching for suitable attorneys for several months I finally signed a contract with several like minded independent lawyers who are well known for both their prowess and their commitment to civil liberties and the rights of marijuana users. They all work at the Pier 5 Law Offices. Lead attorney is Robert Amperan. Shari Goldberger and Omar Figueroa are also involved.We are planning on filing motions for dismissal for various reasons, but at the same time preparing for trial and the government’s massive onslaught. They have subpoenaed financial records from banks, credit card companies and the 65 witnesses. My attorneys and some very astute tax people are just starting to get to work, but by the time we are in court I believe we will be fully prepared.

As I mentioned before the government is using this case as a trial balloon. If they get a good decision they will use this to intimidate dispensaries the way they did in San Diego.The City of San Diego is progressive but San Diego County has a conservative Board of Supervisors that wanted to close the proliferating dispensaries. The County sheriff’s department and the feds raided five of about 30 dispensaries. Eventually charges were filed against more than 100 people involved in medical marijuana there. Authorities warned the other dispensaries to shut down or get raided. One day later there was not a single dispensary open in San Diego County.

Until now the feds have made only intermittent forays into medical marijuana friendly communities. They see this as an opportunity to broaden the scope of their operations: A way of opening up new, very profitable, territory.This is also a make/break case for Persecutor Bevan. He seems to have bet his career on it. When Bevan loses this battle the result could be the end of his attempts to keep sick people from getting their medicine.As for me, I am confident that with the support of the community and the help of my attorneys and supporters, the outcome of this trial will be positive.

I will always try to be worthy of your support.

TIPS FROM ED

If a government agent calls you or comes to your home or place of business to subpoena you, you have no choice, you must accept the papers.

However, you are under no obligation to talk with them. They may try to engage you in conversation or even try to intimidate you, but your magic words. “I DON’T WANT TO TALK TO YOU” - WILL STOP ALL THE COMMOTION. Tell them not to call you and that you will call them if you want to discuss matters with them.If you have a lawyer, give them his card and tell them to call your lawyer and not you in the future.

If you don’t have a lawyer tell them that you don’t want to speak with them before speaking with an attorney. Then find a lawyer.

DO NOT LIE TO A FEDERAL AGENT. IT IS A CRIME AND YOU CAN BE PROSECUTED FOR IT. YES, EVEN THOUGH YOU ARE NOT UNDER OATH, IT'S A CRIME. 

"Helping sick people should never be a crime."

--Ed Rosenthal