How Not to Write a Law 

The case of Ed Rosenthal is as schizophrenic as Prop. 215; but it's no more so than voters' attitude about pot.

The choreography certainly was impressive. On the morning of February 12, 2002, officers from the Drug Enforcement Administration simultaneously raided a San Francisco cannabis club called the Harm Reduction Center, the private homes of Bay Area medical pot activists, and a West Oakland warehouse where High Times columnist and author Ed Rosenthal grew hundreds of plants for critically ill patients. A few hours later, as Rosenthal stewed in a cell, Bush administration drug czar and longtime Clinton antagonist Asa Hutchinson strutted onto the stage at San Francisco's Commonwealth Club and compared the federal war against medicinal marijuana to a University of Arkansas Razorback game, in a speech titled "Let's Don't Punt on the Third Down." But he'd already made his point.

Eleven months later, Hutchinson was off chasing other headlines, but Rosenthal faced multiple drug and conspiracy felonies. His lawyers planned to base their defense on his having been deputized by the City of Oakland to distribute pot. But Federal Judge Charles Breyer assiduously quashed all mention of Proposition 215 and medicinal marijuana, stripping the defense of its only argument. After the jury found Rosenthal guilty, four jurors stood alongside the defendant at a press conference and declared that they'd never have convicted Rosenthal if they'd known who he really was. Nonetheless, he now faced a minimum of five years in a federal prison.

Then war approached, and reporters forgot about Rosenthal. But his lawyers toiled on, and while no one paid attention, attorneys Joe Elford and Bill Simpich made a spectacular claim in a brief they filed in federal court. Not only had the trial jurors been manipulated into a conviction they now regretted, but federal prosecutor George Bevan had actually lied to the grand jury to get the indictment in the first place. "I'm more upset by the grand jury than by anything," Simpich says. "It makes the trial a joke."

Indeed, this whole affair has been one long comedy of errors. Although Judge Breyer has only released a small portion of the transcripts, what little has been made public indicates that at least one of the grand jurors, and possibly several, had profound reservations about indicting a man who just wanted to provide relief to people in pain. More importantly, this case reveals a mother lode of bad faith and moral ambiguity, and not just on the part of the prosecution. Everything associated with medicinal marijuana -- the activists and their lawyers, the prosecutors, even the law itself -- is tainted with hypocrisy. Prosecutor Bevan tried to lure the grand jury into somnolence with assurances that the Ashcroft Justice Department isn't trying to wipe out medicinal marijuana everywhere it takes root. Rosenthal's lawyers overstated Bevan's bad faith and downplayed the quasi-criminal element in the medicinal pot movement. The activists themselves occupy a twilight zone of legitimacy, in which many players are both health-care activists and drug dealers. Proposition 215 is so terse and vaguely worded that legal scholars are still trying to figure out what's legal and what's not.

This mélange of half-truths and contradictions all stems from the public's intellectual ambivalence about pot; we don't want to persecute people for getting high, but we aren't ready to accept it either. And until we make up our minds, we'll be doing this dance in perpetuity.

The grand jury was originally conceived as a bulwark against prosecutorial excess, in which citizens can examine the evidence, ask questions, and even argue with the prosecutor over whether a trial is justified. These days, it's a mere formality. No judge or representative for the defense may attend the proceedings; the prosecutor is the only court officer on stage, and he can coax or manipulate the grand jury into, as the saying goes, "indicting a ham sandwich."

But the grand jury in Rosenthal's case didn't go without a fight. Because Bevan intended to call DEA agent Jon Pickette as a witness at Rosenthal's trial, he had to give the defense all previous legal documents pertaining to Pickette, including his grand jury testimony. Defense lawyer Bill Simpich claims that as he lay in bed reading the testimony, he sat bolt upright in shock.

Two weeks after the raids, Bevan had called Pickette before the grand jury and led him through the chain of evidence. As he built his case, members of the jury contested not only his characterizations of Rosenthal and his colleagues, but the very legal foundation of the indictment he was asking them to return. Just as juries throughout California have refused to convict medicinal marijuana distributors despite a preponderance of evidence, at least some of these men and women may have been inclined to ignore federal law and let Rosenthal go free.

Most of the arguments between the prosecutor and the grand jury involved the absurdly imprecise law that is Proposition 215. That initiative may allow people to possess medicinal marijuana, but whether it allows them to acquire it is another question, one still being hashed out in courts throughout the state. As Bevan insisted that state law continues to prohibit people from obtaining marijuana, jurors wondered how exactly patients are supposed to use pot if they can't buy it.

When Bevan walked the grand jury through a description of Rosenthal's operation, one juror challenged the prosecutor's suggestions that Rosenthal and his colleagues were doing something shady -- perhaps prompted by prior testimony that Rosenthal has invited the fire department to inspect his warehouse. "These cannabis clubs are established to provide medicinal marijuana to people who get an okay from some public entity to go in and buy doses of marijuana," this juror said. "Where are these cannabis clubs supposed to acquire their inventory? Do these growers have to get a license? They don't seem to be hiding anything. ..."


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