Ed Rosenthal case goes to jury

-Sender: pieman [at] pieman.org
To: cia-drugs [at] yahoogroups.com
From: ARON KAY <pieman [at] pieman.org>
Date: Fri, 31 Jan 2003 05:02:00 -0500
Subject: [CIA-DRUGS] Ed Rosenthal case goes to jury


Thursday, January 30 -- The case of the United States vs. Edward Rosenthal, marijuana author and activist, is now in the hands of a jury of his peers, or as close to a jury of his peers as U.S. District Judge Charles Breyer would allow.

But more on that in a moment; first, the developments in the final day of evidence and arguments:

In front of an overflow crowd in the courtroom, the prosecution concluded its case with the remainder of the testimony from Special Agent John Brian Padgett of the DEA, who testified further as to the plants he'd helped seize from the Harm Reduction Center on February 12, 2002. He told the court that he had counted 714 plants that day, and had seized various records, but had no way to tie those plants to Mr. Rosenthal, either directly or indirectly. He said he had found a roster of workers for the center, but that he had not seen Mr. Rosenthal's name on it. The government alleges that Mr. Rosenthal was not only supplying the center but also running the cultivation operation there. Agent Padgett was unable to offer any evidence of such a relationship.

With that, the prosecution rested its case, and court recessed briefly.

Once the jury exited the courtroom, there ensued yet another round of arguments as to what the defense could ask its first witness, Alameda County Supervisor Nathan Miley, who had been an Oakland City Council member when Mr. Rosenthal began participating in the city's medical marijuana distribution program. Assistant U.S. Attorney George Bevan, Jr. renewed his objection to Supervisor Miley being allowed to testify at all, and once that was denied, asked Judge Breyer to strike half the defense's proposed questions, including those related to Mr. Rosenthal's obtaining of a City of Oakland business license to grow marijuana, and his involvement in the city's Public Safety Committee Working Group on Medical Marijuana. That objection was sustained, and the defense was left with little more than the chance to ask Supervisor Miley about where he'd first met Mr. Rosenthal -- so long as no one mentioned either the name or purpose of the meeting, because both mentioned marijuana -- and his experience touring the cultivation facility - so long as all he commented on was Mr. Rosenthal's openness.

Even those limitations did not prevent the trial from transcending the surreal to the comical when he took the stand.

With Defense Attorney William Simpich questioning, Supervisor Miley began by saying he'd met Mr. Rosenthal as part of trying to "implement Prop 215," California's voter initiative directing that marijuana be made safely and legally available to qualifying patients. The reference to the California law drew immediate objection from Prosecutor Bevan and rebuke from Judge Breyer, who asked Attorney Simpich to lead Supervisor Miley through the questions already approved, a process designed to limit a witness's answers to "yes" and "no" by the attorney making a statement as to the fact to be established, followed by, "isn't that correct?"

In answer to Attorney Simpich's next question, if he had been aware of what Mr. Rosenthal was doing, Supervisor Miley said Mr. Rosenthal was providing marijuana plants to "patients who could not grow their own." This remark drew another sustained objection and an even sharper rebuke from Judge Breyer, who also instructed the jury yet again that the purpose of growing marijuana was not for them to consider. Judge Breyer then instructed defense counsel to either lead the witness through the questions as written and approved, or he, Judge Breyer, would ask them of the witness himself.

When Defense Attorney Simpich attempted to ask another straightforward question, he was again stopped and scolded. After he protested to Judge Breyer that he was following the questions previously approved, Judge Breyer took matters into his own hands and proceeded to ask Supervisor Miley the remainder of the questions - to the obvious amazement and amusement of the witness and several members of the jury, as well as Attorney Simpich.

The questions were few, and the answers amounted to Supervisor Miley's agreement that he had toured the Oakland warehouse, that there had been marijuana plants growing there, and that Mr. Rosenthal had made no attempt to conceal his activities. With that he was excused from the stand and exited the courtroom, to be met by a throng of reporters seeking comment, to whom the whole story could be told.

The defense then called a forensic expert, Daniel Weaver, a retired Naval officer who'd conducted court martials of personnel accused of marijuana offenses while in the military, and had subsequently worked as a criminal defense investigator on marijuana cultivation cases. Based on his training, research, and experience investigating more than 200 grow operations, Mr. Weaver stated that what the government prosecutor and witnesses had been identifying as roots were in fact merely the precursors of root structures, and that in his careful examination of all the photographic, videographic and physical evidence, he had found no "clones" with "readily visible root formations."

He also testified that there was no evidence by which he could verify the count of the so-called "mother plants" which had been used for producing the clones. He stated that the DEA's own count could have been in error because they had failed to count plants based on root structure, a mistake that runs the risk of counting the stalks of a single plant as separate ones, as multiple stalks can originate from the base and not just a central stalk.

Prosecutor Bevan did his best to shake the expert witness and get him to concede that anything protruding from the base of a cutting had to be a root, but Mr. Weaver carefully and deliberately repeated his detailed explanation of the different stages of plant and root development, using the government's photos as examples, and reiterated his conclusion that there was no evidence of what he would classify as roots on any of the clones.

With that, the defense rested.

Judge Breyer then instructed the jury that, among other things, they could not hold against Mr. Rosenthal his decision not to testify. Judge Breyer also provided them with the basic guidelines as to how to deliberate, told them that no financial records could be considered as evidence of profit because that was not at issue, provided them with a legal definition of what constitutes a marijuana plant, and told them that the cultivation of marijuana is never legal under federal law.

The last of these instructions, that marijuana cultivation is never legal, had drawn an objection from the defense out of the presence of the jury as going beyond the language of any laws. It is also curious on the facts, since the U.S. government funds clinical marijuana research of several types and maintains its own cultivation facility in Mississippi for the seven patients it has remaining in the federal medical marijuana program. (That program was closed to new patients when the AIDS epidemic created a surge of applicants with ailments only treatable with marijuana, such as wasting syndrome.)

After Judge Breyer completed his instructions to the jury, Assistant U.S. Attorney Bevan then presented the prosecution's closing argument. While he went on long enough to almost exceed his time limit, he had little more to say than that he believed the evidence was clear on the three counts the jury was to consider: that Mr. Rosenthal had maintained a place where marijuana was grown, or "manufactured" as the government calls it, that he'd actually grown marijuana there, and that he'd had some sort of agreement with Richard Watts and Ken Hays, his indicted co-conspirators, to provide marijuana for the Harm Reduction Center. Prosecutor Bevan conceded that the evidence of the conspiracy charge, the agreement between Mssrs. Rosenthal, Hays, and Watts, was circumstantial, but claimed that the two checks introduced into evidence and the phone calls placed by Mr. Rosenthal to both Mr. Hays and the Harm Reduction Center, coupled with the testimony of James Halloran and Robert Martin that there had been some sort of arrangement for Mr. Rosenthal to supervise plant cultivation at the Harm Reduction Center, was more than enough to convict on the conspiracy count, the most serious of the three.

Defense Counsel Robert Eye then tried valiantly to present the defense's closing argument, in spite of repeated interruptions both by objections from the prosecution and by the judge himself, who interjected instructions to the jury to disregard elements of what the defense was trying to say.

Even so, Defense Attorney Eye noted that there were many "troubling inconsistencies" in the prosecution's case, including garbage bags of marijuana "shake" that had been left behind after the raid at Mr. Rosenthal's warehouse for no apparent reason; witnesses for the prosecution who engaged in distributing medical marijuana but had never been arrested and were now granted immunity; a plant count that could have been easily verified but was instead a total mess; and lies to the jury on the part of two of the testifying DEA agents, one of whom had curiously claimed stored marijuana constituted a "biohazard" and another who'd testified he'd counted plants once before and then said he'd performed counts more than once.

Attorney Eye told the jury that they should reject the testimony of the two DEA agents as intentionally misleading, and that all the problems with the case showed the DEA did not have "their house in order." He told the jury they should send a message that, if the government is going to pursue prosecutions like this, they have to do it right. Through a flurry of objections from the prosecution, he told the jury that this was their opportunity to judge not just Mr. Rosenthal but the government's actions, to not just "fall into lock-step" with what the government wanted. He told them that they'd brought to the trial life experience and common sense and that it was right that they apply those in deciding the case. He then suggested that each of them had their own sense of justice and that they should apply it in reaching their verdict.

At which point -- arguably the most bizarre of the trial -- Judge Breyer stopped him again and addressed the jury, instructing them that they were not to apply any personal sense of justice, that they were not to decide if a law was unjust, but were to follow the instructions he had given them.

Defense Attorney Eye, who ranged from avuncular to righteously indignant through his oft-interrupted closing argument, concluded by telling the jurors that they had the power to acquit, that he had confidence in them, and, finally, that he wanted them to see justice done.

Prosecutor Bevan used his time for rebuttal to justify why he and the judge had interrupted so often, calling the defense's closing argument improper. He reminded the jury they'd taken an oath to follow the judge's instructions.

Judge Breyer then instructed the jury for the last time not to pay any attention to the extensive publicity surrounding the case.

Whatever the outcome of the jury's deliberations, which are to commence first thing Friday and may well produce a verdict by later in the day, it will inevitably be tinged by the extraordinary effort Judge Breyer expended on eliminating the remarkable number of potential jurors who could not agree to be bound by narrow instructions on federal law.

In the event of a conviction, the question will remain as to what the outcome would have been if the case had been heard by a real cross-section of citizens. An acquittal -- or even a hung jury -- will only further emphasize the rapidly growing consensus on legal access to medical marijuana.

Those who have been following the development of the case will recall that the process of selecting the jury required two days and the calling of nearly 80 potential jurors to find fourteen people who either had no opinions or would agree to set aside their beliefs about the medical use of marijuana, its criminal classification, and the conflict between 33-year-old federal law and that passed by Californians in 1996.

The jury is not permitted to know or consider what Mr. Rosenthal's sentence could be in the event of conviction, but the conspiracy charge carries a mandatory minimum of ten years in prison, with the possibility of a life sentence and up to $4 million in fines. The cultivation charge entails a minimum of five years in prison, up to a maximum of 40 years and a fine of up to $2 million. The charge related to maintaining a place to "manufacture" marijuana could net Mr. Rosenthal up to 20 years in prison and a fine of $500,000.

A verdict is expected as soon as tomorrow, Friday, January 31st. Updates on the verdict, and reactions from Ed Rosenthal, his family, and his attorneys will be posted here the same day.