Rejudging a medical marijuana case

Frank Kafka gets the last laugh – but then doesn’t he always?

Lawyers ask that medical pot case be overturned: Judge misled cannabis grower’s jury, they say

Attorneys for Oakland pot advocate Ed Rosenthal asked a panel of federal judges Tuesday to overturn his 2003 conviction for growing medical marijuana, while the prosecutors sought to have his one-day prison sentence thrown out because they thought it wasn’t long enough.

Rosenthal, 60, was arrested in 2002 for growing marijuana for the Harm Reduction Center, a San Francisco dispensary for medical patients. Rosenthal, who is well-known for his “Ask Ed” advice column for cannabis growers, was convicted a year later on federal cultivation and conspiracy charges.

But in his trial U.S. District Judge Charles Breyer forbid Rosenthal and his attorney from mentioning that he was growing cannabis for medical users. Breyer ruled that because medical use is not allowed under federal law, that evidence was irrelevant to his guilt or innocence.

Breyer then imposed the lightest possible sentence — one day — which Rosenthal had already served the night of his arrest, saying that “extraordinary, unique circumstances of this case” justified an exemption from the usual five-year minimum term and federal sentencing guidelines. Breyer concluded Rosenthal had “reasonably” but erroneously believed that he was acting legally because of his support from local officials.

Nine of 12 of the jurors who voted to convict Rosenthal have since disavowed their guilty verdict after learning that Rosenthal was growing medical marijuana.

Attorneys Dennis Riordan and Joe Elford argued Tuesday that Breyer should have allowed Rosenthal to present a defense that he grew the marijuana solely for medical use with the permission of Oakland city officials, who were acting within the parameters of the state’s medical marijuana law.

“It’s an affirmative defense based on the conclusion that somebody was reasonably misled by public officials,” Riordan said. “He had a Sixth Amendment right to present that defense to a jury.”

They also argued that Breyer improperly restricted the jury’s options by urging jurors to follow the law and not bring their own “sense of justice” into their deliberations.

Meanwhile, the prosecution is unhappy also:

Meanwhile, Assistant U.S. Attorney Amber Rosen argued that Rosenthal’s conviction should remain in place, but that Breyer should have sentenced Rosenthal from two to five years in prison under federal guidelines. Rosen said the one-day sentence “was an abuse of judicial discretion.”

Judge Marsha Berzon interrupted Rosen’s argument noting that under a 2003 U.S. Supreme Court decision, the guidelines were not mandatory.

But Rosen insisted that the one-day sentence was not reasonable in light of the crime. Congress intended that large-scale cultivation should be treated as a serious offense, she said.

Actually this entire scenario reads like a bad attempt at a Kafka story. A man does what the state says he can do, under state law, and the federal government prosecutes. The judge seemingly arbitrarily excludes information from the jurors. However, the judge then gives an extremely light sentence, aggravating the feds.

So no one is happy, and everyone want to refight the battle. What a waste of money? Could we call it a draw and send the money to New Orleans or Mississippi relief?