Pot Guru Challenges Drug Convictions

Pot Guru Challenges Drug Convictions
Posted by CN Staff on September 13, 2005 at 16:15:54 PT
By David Kravets, The Associated Press
Source: Associated Press
San Francisco -- Attorneys for Ed Rosenthal, the self-described "Guru of Ganja" who has written books on how to grow marijuana and avoid getting caught, asked a federal appeals court Tuesday to overturn his drug convictions.Rosenthal, convicted two years ago of growing and distributing hundreds of marijuana plants, says he was authorized to do so by the city of Oakland under a 1996 California medical marijuana law. U.S. District Judge Charles Breyer refused to allow a jury to hear that defense, and Rosenthal was prosecuted and convicted of being a major drug supplier.
Still, Breyer sentenced him to one day in prison on grounds that Rosenthal reasonably believed he was immune from prosecution because he was acting on behalf of Oakland city officials. The government and Rosenthal both appealed.The government maintained Rosenthal, now 60, should have gotten at least 24 months. Amber Rosen, an assistant United States attorney, told a three-judge panel of the 9th U.S. Circuit Court of Appeals that Breyer abused his discretion by issuing a sentence that fell outside sentencing guidelines.Citing new law from the Supreme Court, the circuit court suggested it would not increase Rosenthal's sentence."He departed from the guidelines. They are not mandatory," Judge Marsha Berzon said.Rosen suggested the circuit should consider "the reasonableness of the departure, not the legality of the departure."Rosenthal's prosecution underscored the federal government's position that medical marijuana is illegal, it has no medical value, and the will of California voters has no affect on federal drug laws. The prosecution received national attention in part because of Rosenthal's status as a leading author and proponent of marijuana, while at the same time the Drug Enforcement Administration was raiding Northern California marijuana dispensaries that operators said distributed to sick and dying patients.While the case was on appeal, however, the Supreme Court ruled that the federal government can prosecute medical marijuana growers and users despite California's medical marijuana law.That decision, which applied retroactively, grounded into law the government's authority to undermine California's medical marijuana law. At the time, it was questionable whether the federal government had such powers.The justices also ruled in an unrelated case, while Rosenthal's prosecution was pending appeal, that federal judges do not have to follow congressional sentencing guidelines. That decision was also retroactive.Dennis Riordan, one of Rosenthal's appellate attorneys, told the court that Rosenthal's conviction should be overturned, or at least he should have been given the opportunity to inform the jury at a new trial that he was acting on behalf of Oakland officials, even if federal law prohibited distributing marijuana."It's an affirmative defense based on the conclusion that somebody was reasonably misled by public officials," he said.Judge Betty Fletcher suggested that, before Rosenthal's arrest, various California court decisions were already published declaring state law does not immunize medical marijuana users or sellers from federal prosecution."There were other strong evidences that he could be prosecuted," Fletcher said.Rosenthal, in an interview after the hour-long hearing, said "I was told by the city attorney's office that I was immune from prosecution. If I can't rely on government officials, who can you rely on?"Rosen, the federal prosecutor, told the court that only federal officials, not state authorities, can grant immunity from federal laws.The court appeared troubled, however, by the misconduct of a juror who asked an attorney during the trial whether she had to follow the law or could vote her conscience. The attorney told the woman, who was sensing Rosenthal was dealing in medical marijuana, that she must follow Breyer's instructions or she'll get in "trouble."Berzon said jurors are not supposed to be told "they are going to get into trouble." Fletcher added that, if the attorney-friend of the juror advised the juror to vote her conscience, "Wouldn't the government say that was jury tampering?"Rosen replied: "She has no right of nullification. Her friend told her, 'You need to follow the court's instructions.' It diminished a juror's sense of her power to nullify. She has no right of nullification."Following Rosenthal's conviction, nine of the 12 jurors decried their own verdict once reporters told them Rosenthal's defense, which Breyer said was not allowed under the law.Rosenthal once wrote the "Ask Ed" column for High Times magazine and has written books with titles including "The Big Book of Buds" and "Ask Ed: Marijuana Law. Don't Get Busted."The court did not indicate when it would rule.The case is United States v. Rosenthal, 03-10307.Source: Associated Press (Wire)Author: David Kravets, The Associated Press Published: September 13, 2005Copyright: 2005 The Associated Press Related Articles & Web Site:Ed Rosenthal's Trial Pictures & Articles'Ganja Guru' Appeal Set After Delay Ends Medical Marijuana Case
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Comment #11 posted by global_warming on September 15, 2005 at 03:46:48 PT
Jury nullification
Jury nullification is the act of a jury judging the law itself, of which a defendant is accused of violating, and rendering a not-guilty verdict based upon its judgement of the law as invalid or unjust. The right of jury nullification comes from English common law, and is therefore preserved in those legal systems derived from it. These include most English-speaking countries, such as the United Kingdom, Canada, Australia, New Zealand and the United States.Nullification is generally not a clearly-defined right protected by legal statute. Rather, it is an inherent aspect of the jury system under common law, sometimes justified as a safeguard of last-resort against wrongful imprisonment and government tyranny. Nullification actually derives from a pair of separate common law precedents: the prohibition on punishing jury members for their verdict, and a similar prohibition on retrying defendants after a not-guilty verdict has been handed down.Until the late 17th century, the right of jurors to override the judge's instructions in returning not-guilty verdicts was a subject of contention in England. In 1670, William Penn was arrested for illegally preaching a Quaker sermon. Despite the fact that the judge demanded a guilty verdict and that preaching the sermon may have been illegal, the jury in that case acquitted Penn and was subsequently imprisoned and fined as a result. The highest court in England released them and established a lasting precedent by ruling that jurors could not be punished for their decisions. 
Jury nullification
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Comment #10 posted by OverwhelmSam on September 15, 2005 at 03:09:46 PT
I don't believe a Juror has to assert they are nullifying the law. All a Juror has to do is vote Not Guilty and the only reason they have to give is, "I don't belive the defendent is guilty" period. The Juror doesn't have to say that they don't believe the defendent is guilty of a crime or engage in debate with the other Jurors, just that they don't believe the defendent is guilty. It may piss the court off, but there's nothing the court can do about it even if they suspect nullification.
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Comment #9 posted by Max Flowers on September 14, 2005 at 09:52:00 PT
A few days in jail would be more than worth it
The nullification issue is particularly frustrating for me, because it seems to me that in this Internet Age, it should not be difficult to inform people about this in a widespread manner. Frustrating also because few things are more offensive to my view of American jurisprudence than the idea of a judge lying or obfuscating or intimidating jurors---scaring them into compliance with the threat of going to jail themselves, basically.I think way too many people are way too afraid to go to jail for a day or two (or whatever they give someone for contempt of court) in this kind of situation. To me, that would be an honor... if I were on a jury and voted to acquit based on my right to nullification and a judge threatened to jail me, or to jail me for jury tampering just for trying to inform people of this right, I would think that was great. I would take it happily. I would then go to the media and make the biggest stink you can imagine, with the goal of getting the word out to millions of people.Sadly, I'll bet if the Fully Informed Jury Association had a budget that allowed them to offer $10 each to a million people to read about and then show they understand jury nullification, suddenly the public would be interested. 
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Comment #8 posted by FoM on September 14, 2005 at 07:55:42 PT
I just wanted to say hello. It's good to see you. 
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Comment #7 posted by runderwo on September 14, 2005 at 07:19:50 PT
I think what may have been meant by the "no right to nullification" statement by the government attorney is not that the jurors do not have a right to nullify, but rather that preventing jurors from exercising nullification power does not compromise Ed's right to due process - so the verdict should not be overturned in the government's opinion.
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Comment #6 posted by kaptinemo on September 14, 2005 at 05:03:57 PT:
U.S. Versus Moylan
"We recognize, as applellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence."
U.S. v Moylan, 417 F.2d 1002,1006 (1969) This is established in case law.Amber Rosen is A) Honestly mistaken, B) a liar, or C) an incompetent. Take your pick, but she's way off target; the jury has ALWAYS had this right. This is why the prosecution in drug cases has become soooooo intent upon discovering if the jury does indeed know their right regarding nullification; most citizens who know anything about drug law reform have come across the concept and if called to jury duty in such cases can be expected to exercise that right. The prosecution and the judges are understandably terrified that their precious assembly line of railroaded 'justice' might be 'sabotaged' by a citizen who understands his or her rights and won't be buffaloed or intimidated. But more and more people are becoming aware of that right and it is becoming harder and harder to find an easily cowed jury. The judge would have to commit perjury in denying the precedent of case law. A perjury easily proved. Hence their attempts to bluster and intimidate; it's the only weapon they have.
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Comment #5 posted by OverwhelmSam on September 14, 2005 at 04:10:14 PT
Government Lawyers (Pronounced Liars)
His sentence doesn't even make sense; Rosen replied: "She has no right of nullification. Her friend told her, 'You need to follow the court's instructions.' It diminished a juror's sense of her power to nullify. She has no right of nullification." Professional Governmental Liars know the truth and they're trying to hide it. Every citizen in the country serving as a Juror certainly has the right to judge and nullify the law by voting "Not Guilty" regardless of the Judge's instructions, the facts or the evidence. And the marijuana community is going to let the cat out of the bag if Congress doesn't change the laws against marijuana. Congress will lose their power, and rightfully so for their abuse of that power.
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Comment #4 posted by ekim on September 13, 2005 at 19:20:29 PT
great question for the humble Mr. Roberts
Rosen replied: "She has no right of nullificationdoes she or not?
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Comment #3 posted by Sukoi on September 13, 2005 at 18:49:00 PT
Jury Nullification
Hello all : )Here is another link to some good information on this:
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Comment #2 posted by mayan on September 13, 2005 at 18:20:57 PT
Rosen replied: "She has no right of nullification. Her friend told her, 'You need to follow the court's instructions.' It diminished a juror's sense of her power to nullify. She has no right of nullification."That's coming from someone who would've sentenced Ed to years in prison just because he grew cannabis for the sick and dying. If anyone belongs in a cage it is Amber Rosen. The issue of jury nullification must be now raised for the entire country to see!Jury Nullification: Why you should know what it is: Last, Best Hope: WAY OUT IS THE WAY IN...Gutless Politicians Still Won't Answer 9/11 Questions; Truth Rally Calls For Treason And Murder Indictments Against Bush And Cheney: Files Opposition to Govt's Rejection of FOIA Request: W. Bush’s 9/11 Reichstag fire: and Manipulation of the USA:
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Comment #1 posted by FoM on September 13, 2005 at 17:17:41 PT
Related Article from
Famed Medical Marijuana Advocate Asks Feds To Overturn Conviction September 13, 2005SAN FRANCISCO -- An Oakland marijuana grower who was sentenced to one day in prison for cultivating the plants asked a federal appeals court in San Francisco Tuesday to overturn his conviction.Ed Rosenthal, 60, contends he should have been allowed to argue in his federal trial in San Francisco in 2003 that he honestly believed he was immune from U.S. prosecution because he was helping the city of Oakland carry out its medical marijuana program.Rosenthal's attorney, Dennis Riordan, told a panel of the 9th U.S. Circuit Court of Appeals that the trial judge's refusal to allow that argument violated Rosenthal's constitutional right to a fair trial."He had a Sixth Amendment right to present that defense to a jury," Riordan contended.Rosenthal, the author of 13 books and a monthly column about marijuana, was convicted of conspiring to cultivate marijuana, cultivating it and maintaining marijuana premises at an Oakland warehouse.He claimed he was growing starter plants for patients needing medical marijuana. But he was not allowed at the federal trial to mention a California law that permits seriously ill patients to use the drug.Although Rosenthal was sentenced to only one day in prison, he says he is appealing his conviction in order to exonerate himself.Rosenthal said outside of court, "I feel I should be exonerated of the three felony counts."I'm also doing it to try to change the enforcement of federal laws and protect officers of cities and states whose job it is to provide medical marijuana to patients," Rosenthal said.Rosenthal wants the appeals court either to dismiss the charges or order a new jury trial, allowing him to make the defense argument.Meanwhile, a federal prosecutor asked the appeals panel not only to uphold the convictions but also to order the trial judge, U.S. District Judge Charles Breyer, to reconsider the sentence.Assistant U.S. Attorney Amber Rosen said, "Congress intended that large-scale cultivation should be treated as a serious offense."Prosecutors contend Rosenthal should be sentenced to two to five years in prison.Rosen also argued that because Oakland's medical marijuana program was illegal under federal law, Rosenthal wasn't entitled to argue that he believed that he was immune from federal prosecution.A three-judge appeals panel took the case under submission and will issue a written ruling at a later date. Copyright 2005 by and Bay City News.
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