Anonymous Comrade writes:

Ed Rosenthal's Federal Trial Begins

Feds Falter on Pot Plant Count

Tuesday, January 21 -- In the midst of a minor media blitz, the cultivation trial of marijuana activist and noted author Ed Rosenthal got underway in San Francisco federal court today. Assistant U.S. Attorney George Beven outlined the case against the man known as the foremost expert on marijuana growing, without actually discussing what Mr. Rosenthal was doing -- providing small starter clones of high-potency female plants to local marijuana dispensaries for distribution to qualified patients. The result was a disjointed opening argument. After a preliminary discussion with judge about whether the purpose of Mr. Rosenthal's activities could be mentioned -- it couldn't -- the defense elected to reserve its opening argument for after the prosecution completed presenting its case.

First on the stand was the ailing James Halloran, 61, one of Mr. Rosenthal's indicted co-conspirators and a former racquetball partner, who testified about the marijuana-growing activities he began immediately after California passed the Compassionate Use Act, otherwise known as Prop 215, in 1996. According to Mr. Halloran, he entered into a partnership with Mr. Rosenthal in late 1997 or early 1998 to produce marijuana for the local medical clubs, before going their separate growing ways about a year later, though he continued to buy small clones and cuttings from Mr. Rosenthal until the time of their arrest.

Mr. Halloran also told the court that he was testifying in exchange for a more lenient sentence in his guilty plea to cultivation and money-laundering charges, charges he told the jury would otherwise have resulted in a 50-year mandatory minimum with the possibility of a triple life sentence upon conviction. While this appears to be an overstatement designed to cast his decision to rat out a friend and former partner in a more favorable light, it nonetheless introduced to the jury the seriousness of the consequences facing Mr. Rosenthal, should they choose to convict.

Defense attorney Robert Eye also elicited testimony from Mr. Halloran concerning an extraordinary provision of his plea agreement with the government, allowing him to seek dismissal of the conviction at such time as the federal law on marijuana is either determined to be unconstitutional or repealed by Congress.

Next on the stand was an electrician who detailed work he'd done at Mr. Rosenthal's direction to ensure safety and bring the marijuana cultivation facility into compliance with city of Oakland building codes, at a cost of roughly $7,500. Under questioning from the defense, he described the inspection of the facility by the Oakland Fire Department, emphasizing the complete lack of interest on the part of officials in the small marijuana plants that filled the building.

The last witness of the day was DEA Special Agent Daniel Tuey, who had supervised the February 2002 raid on the cultivation facility. As part of his testimony, the prosecution played a videotape the agent made and narrated during the raid, showing several small rooms containing "mother" plants, young clones and fresh cuttings, as well as various items tacked to the walls, including a bumpersticker that read "Thank you for pot smoking" and a newspaper article that appeared to be about the 6th Street Harm Reduction Center providing medical marijuana for the most seriously ill patients. The prosecution also introduced into evidence one grow light and ballast, one large corroded fan, and a few medium-sized bags of dead marijuana cuttings. The rest of the evidence seized, the agent conceded under defense questioning, had been destroyed.

The defense had, in fact, only begun its cross-examination of Agent Tuey when the court day drew to a close, but defense attorney Robert Eye nonetheless extracted testimony highlighting the fact that no local law enforcement had either participated in the raid itself or delivered any information to the DEA about Mr. Rosenthal's operation. But perhaps the best moment came as Mr. Eye questioned the agent about the Oakland Fire Department?s building-inspection report, which the DEA had seized in the raid. With the report projected on a screen for the court to see, Mr. Eye asked Agent Tuey about a three-word note scrawled across the top of the form, apparently written by the inspecting Oakland Fire Department officer. "Can you tell us what that note says?" Mr. Eye asked. "Doesn?t it say 'Don't get caught'?"

After the jury had been dismissed for the day, presiding judge Charles Breyer vented his displeasure with the defense?s line of questioning regarding the attitude of local officials, as well as the time spent by both prosecution and defense counsels on the matter of how many of the plants seized were either rooted or not. He asked the attorneys to come to an agreement about a range of numbers -- more than x but less than y -- rather than take up too much time arguing over a precise count. Yet the number of viable plants is germane to the specific charge of cultivating more than 100 marijuana plants. The defense believes the prosecution will be unable to produce any such number of plants.

Then came what may prove to be the day's most momentous moment, in which Judge Breyer quashed the defense subpoena of one of the DEA agents who had participated in the raid. Mike Heald, the former supervising agent from Sonoma County was being called to testify, outside the presence of the jury, about comments he'd made to a colleague of Mr. Rosenthal's regarding the DEA's policy on prosecutions in California. The colleague, Mary Pat Jacobs, who runs the Sonoma Alliance for Medical Marijuana, claimed in a declaration provided to the court that Agent Heald had told her that it was policy to follow the lead of local authorities in determining whether or not to prosecute those cultivating medical marijuana under Prop 215 guidelines. Ms. Jacobs had relayed that conversation to Mr. Rosenthal, who had relied upon it, in addition to the numerous assurances of local officials, in concluding that his cultivation of marijuana plants on behalf of medical patients would be immune from federal prosecution.

The quashing of the subpoena of Agent Heald is of particular significance to the defense argument that the prosecution of Mr. Rosenthal is a case of "entrapment by estoppel" in which officials tell an individual that their conduct is legal and then try to prosecute them for it. In rejecting this argument, Judge Breyer made much of the fact that, while Mr. Rosenthal could reasonably have believed he was immune, the defense had not produced a key element in that defense: any federal government official or agent who's said as much. Now the federal agent who might have testified to exactly that will not be permitted to appear.

Trial continues at 8:30 a.m., Wednesday, January 22, in U.S. District Court, with trial commencing on Tuesday, January 21, 2003.

FOR MORE INFORMATION: Updates and background information on Ed Rosenthal's case are available on the web at www.green-aid.com or www.safeaccessnow.org.