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Columns

Alexander Cockburn

The rebellion and its martyers: Ed Rosenthal faces the music
May 21, 2003

The endless clash between state power and popular will has always assumed its most vivid contours in the matters of sex, booze and drugs. Particularly in the last case the struggle concerns not merely pleasure but the suppression of pain. The state protects pharmaceutical companies, who enjoy the highest profits in American business. The state persecutes marijuana cultivators and suppliers, and, at the federal level, is trying to crush a nationwide rebellion by those who not only see marijuana as delightful and benign, but as of proven efficacy as a medicine for those for whom pain is a chronic condition.

The rebellion has its many thousands of martyrs, rotting in state and federal prisons. Its most conspicuous victim right now is Ed Rosenthal. Come June 4, Ed Rosenthal will be back in U.S. District Court in San Francisco to hear what sentence U.S. Judge Charles Breyer has decided to impose. Earlier this year, a California jury found him guilty of cultivating marijuana, of maintaining a place to cultivate marijuana and of conspiring with others to cultivate marijuana. He's in his early 50s now, and he's looking at the possibility of being hauled off to prison for the rest of his life.

Let's all hope that it won't come to that and that Breyer will stay his sentence, pending appeals that may end up in the U.S. Supreme Court.

The feds went after Rosenthal because he's a high-profile advocate of legalized marijuana, famous for his books and articles, not least in High Times magazine. The charges seemed surreal. Under the terms of California's Compassionate Use Act of 1996 OK'ing the cultivation and use of medical marijuana, the City of Oakland designated Rosenthal the legal supplier of marijuana starts to those in chronic pain.

Back then, on the eve of the trial, Rosenthal told me, "This is a tipping-point case. If they put me behind bars, they are going to start closing these clubs. The clubs will have no excuse. Everyone will have to plead out. It's really important that I win this case."

He has rematches ahead of him in the Ninth Circuit Court of Appeals and then perhaps the U.S. Supreme Court, but Rosenthal lost that round in U.S. District Court. His trial was a grim farce. Breyer (brother of U.S. Supreme Court Justice Steven) overruled every effort of Rosenthal's lawyers to introduce the fact that the man in the dock had been working under the aegis of the city of Oakland, abiding by the provisions of a state law approved by the voters of California.

Thus kept in the dark, and with the ground cut from under Rosenthal's defense, the jury found him guilty. Then the jury stepped out of the jury box and for the first time learned the actual circumstances and background of the charges. Within days six of them mustered in front of the U.S. courthouse to apologize publicly to Rosenthal, and to proclaim their shame and indignation that they had been dragooned into this parody of justice.

I was there, and it was an exhilarating occasion. Terence Hallinan, the district attorney of San Francisco, S.F. Supervisors Tommy Ammiano and Matt Gonzalez, and the chairman of the city's board of supervisors all stepped up to the microphone to applaud the penitent jurors for their stand, to denounce the conviction. Board President Gonzalez invoked the long tradition of jury nullification, which, had this jury known about it, would have enabled them to set aside Breyer's instructions, consult their consciences and find Rosenthal innocent.

The next round in the case concerned precisely this issue of whether a juror can discount a judge's instruction. In the wake of the verdict, two jurors, Marney Craig and Pamela Klarkowski, disclosed to Rosenthal's lawyers that during the trial, outside the jury room, they had discussed, at least twice, the issue of disobeying Breyer's instruction. Craig said she had phoned an attorney friend who had told her forcefully that she had to follow Breyer's instructions and would get into big trouble if she used her own judgment. Craig had then discussed this call with Klarkowski.

Rosenthal's lawyers went before Breyer again, arguing for a mistrial on the grounds of malfeasance by the two jurors. Though Craig took the Fifth, the facts weren't disputed. On the face of it, you'd think it's open and shut. Aside from Breyer's outrageous restrictions, did Rosenthal get a fair trial if two jurors were secretly sitting on a piece of bad legal advice, to the effect that if they stepped outside the narrow lines drawn by Breyer, they'd face serious sanctions?

But Breyer brusquely dismissed the motion. He doesn't want to order a new trial, one in which the chances of a jury aware of the background of the case and also of the possibility of nullification would be far higher.

Just as Rosenthal predicted to me, the feds took the guilty verdict as a green light. Across California people acting within the terms of the 1996 California statute have every reason to fear that DEA will come crashing through the door and that federal judges like Breyer will back up their right to do so.

The only silver lining thus far, aside from the edifying stance of principle taken by Ed Rosenthal is that the issue of jury discretion, or jury nullification, is on the front burner again. You've been called to serve on a jury? I strongly recommend you take the time to study a useful little guide drawn up by Clay Conrad, chairman of the Fully Informed Jury Association. You can find it at www.counterpunch.org/conrad02052003.html. Money to help with Ed Rosenthal's defense should go to Green-aid.com

And yes, this is a Republican administration rhetorically committed to states' rights. Bush himself made a campaign issue of it, ladling out a plateful of campaign pledges that he, as a good Republican, was committed to states' rights.

Alexander Cockburn is coeditor with Jeffrey St. Clair of the muckraking newsletter CounterPunch. To find out more about Alexander Cockburn and read features by other columnists and cartoonists, visit the Creators Syndicate Web page at www.creators.com. COPYRIGHT 2003 CREATORS SYNDICATE, INC.

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