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CounterPunch
February
1, 2003
American Journal
US
Judge Railroads Ed Rosenthal in Fed's War on Medical Marijuana;
Pee-Wee, Townshend and Ritter: the Sex Police at Work
by ALEXANDER COCKBURN
Cowed by a federal judge, a reluctant jury found
Ed Rosental guilty last Friday afternoon. Rosenthal remains free
on bail, pending sentencing in June. The defense will appeal.
Rosenthal faces life in prison.
Within hours of finding famed marijuana
expert Ed Rosenthal guilty on three felony counts of conspiracy
and marijuana cultivation, a sobbing juror was overheard saying
she and others jurors had been terrified that US District Judge
Charles Breyer would throw them in prison if they had found Rosenthal
innocent, although she herself had had a strong disposition to
do so.
Jury foreman Charles Sackett (a building
contractor) told the press after the verdict that he hoped the
Ninth Circuit Appeals Court would reverse the verdict and another
juror, Marney Craig (a property manager), said "It seems
like we made a horrible mistake. I should have stood up and said,
'I'm not convicting.'"
Throughout the trial in US District Court
in San Francisco, Breyer had refused all efforts by the defense
to disclose to the jury that Rosenthal was growing marijuana
as an "officer" for the City of Oakland's medical marijuana
program, authorized under California's Proposition 215, passed
by the voters in 1996. (See my report the Right
Not to Be In Pain.)
Breyer effectively denied Rosenthal the
most basic right of all, that of being able to confront his accusers.
The inability to confront your accuser means in essence you have
to endure the accusations of the state, without the ability to
respond. That's what happened to Rosenthal.
The Feds, in the form of the DEA, accused
Rosenthal of being a big time marijuana grower, and at no time
did Breyer allow Rosenthal or his defense team to explain to
the jury that Rosenthal believed his actions to be entirely legal
under state law. Among many other outrageous rulings Breyer
refused to allow DEA Agent Mike Heald to testify in California
at the time of Rosenthal's bust, his federal task force north
of the Bay Area "was trying to make the 215 law work,"
as he told the defense team. "We didn't want to interrupt
state legislation."
Of course the jury, like all juries,
had the right to consult their consciences and set the law aside,
but such is the deplorable state of civics instruction today,
and such is the dictatorial propensity of judges and the hostility
or indifference of elite opinion that the fundamental principle
of jury discretion, the foundation stone of freedom is barely
known. Hopefully Breyer's brazen rulings and the public support
for 215 in California will bring the issue of jury discretion,
or nullification, to the fore. (For more info the issue of fully
informed juries, see FIJA's website.)
If a jury picks up on an overwhelming
public sentiment, it will often find the courage to do the right
thing despite an overbearing judge. There was public sympathy
for Rosenthal, but though his supporters worked their hearts
out, the wave of necessary outrage on this fundamental issue
of states rights and the rights of the accused was not there
in necessary force.
After dismissing the jury, Judge Charles
Breyer said that he would be conducting his own "independent
inquiry" into determining whether he could make a "downward
departure" on the sentencing, meaning impose less than the
minimum sentence mandated by law. Such an inquiry would be to
determine Mr. Rosenthal's eligibility for an extraordinary exception
to normal sentencing
Breyer noted the extraordinary circumstances
of the case in rejecting the motion of Assistant U.S. Attorney
George Bevan, Jr. to have Rosenthal placed in immediate detention.
Breyer granted Defense Counsel Robert Eye and William Simpich
an additional 30 days beyond the normal ten to file their request
for a new trial.
Breyer also set the sentencing date as
June 4, much farther out than is normal. The nearly six months
until sentencing should allow enough time for the Ninth Circuit
Court of Appeals to decide the appeal of another of Judge Breyer's
cases that dealt with a similar question of immunity from prosecution
in the context of medical marijuana distribution.If the Ninth
Circuit Court of Appeals overturns Judge Breyer's interpretation
of the federal statute, as he himself said they very well might,
it would guarantee that Rosenthal's conviction would be overturned.
While he was found guilty of all three
counts, the most serious chazrge had related to conspiracy to
grow more than a thousand plants, and on that count the jury
found that he had conspired to grow more than a hundred but
less than the thousand the indictment had specified -- a finding
defense attorneys counted as a victory. That leaves his conviction
for cultivation of more than a hundred plants as the offense
with the stiffest penalty, with a sentencing range of from 5
to 40 years and a fine of up to $2 million dollars.
Ironically, the jury did set the law
aside in declaring Rosenthal guilty of even that number of plants.
The defense had introduced as expert witness Dan Weaver of Humboldt
county, who testified that the physical evidence offered by the
prosecution consisted of plant cuttings without viable root
systems. A cutting or even a slightly more developed clone, is
not a plant and plants are what the federal statute concerns
itself with. The jury inferred that Rosenthal had plants, even
though plants were not part of the state's evidence.
STATEMENT of
ED ROSENTHAL
Statement of Ed Rosenthal on the Medical Marijuana Trial Verdict
January 31, 2003
"I am disappointed in this verdict
for several reasons. "This was an unconstitutional prosecution.
It should never have come to trial.
"Once it did, I was not afforded
a jury of my peers. They had to bring in 80 people to come up
with 12 who would agree to set aside their beliefs on this issue.
"Even so, they would have acquitted
me if they had been permitted to hear my story. But I did not
get the chance in this trial to defend myself and explain my
actions.
"Federal prosecutors made extraordinary
efforts to block the truth, the whole truth, and nothing but
the truth. Because the truth is that I was deputized by the City
of Oakland to legally grow marijuana for medicinal use by sick
or dying patients under California's Prop 215, the Compassionate
Use Act, the law that is supposed to guarantee safe and legal
access to medicinal marijuana.
"The City of Oakland showed courage
in working to come up with a safe, open, and legal system to
harmonize California's medical marijuana law with federal law.
And I was acting as an official of the city, implementing their
program to help patients.
"Had the jury known about the City's
attempts to give immunity to their people, including me, it would
have acquitted me today.
"The other victims of today's decision
are patients -- people who are extremely ill or dying and who
are soothed by medicinal marijuana -- because I am only one of
many people that they are trying to put in jail for helping
sick people, as allowed under our laws.
"For these reasons, we will be asking
for a new trial. This verdict will not be allowed to stand.
"The federal government silenced
my courtroom defense, but it can't silence the court of public
opinion. The opinion of the American public is one of overwhelming
support of medicinal uses of marijuana.
"The federal government needs to
get this message.
"My case clearly demonstrates that
it is time for a national debate on the issue of medical marijuana.
California voted to make medical marijuana legal, but the federal
government is trying to block that law. The federal government
is choosing to prosecute and imprison individuals instead of
working directly with the State of California and local cities
to resolve the conflicts in medical marijuana law.
"Our elected officials must have
the courage to discuss this issue publicly, and then resolve
this conflict.
"Because helping sick people should
never be a crime. "For my entire family, thank you all
for your support." --Ed Rosenthal.
The Rosenthal defense team is in desperate
need of money to pay for the expenses of the trial and to lodge
appeals. Please visit http://green-aid.com
to learn how you can help.
Pee-Wee,
Townshend and Ritter:
Who Are the Real Abusers?
The worse the state treats kids, the
more the state's prosecutors chase after inoffensive "perverts"
in the private sector who have committed the so-called crime
of getting sexual kicks out of images downloaded into their computers
or bought as part of an archive of archaic soft-core porn.
Before we get to Paul Reubens, aka Pee-Wee
Herman, pause to consider the Administration's proposed cuts
in social services affecting youth, as passed by the Senate in
January:
$60.9 million cut from childcare, meaning
access cut for 38,000 kids;
$29 million cut from after-school programs;
$13 million cut from programs that help
abused and neglected children;
$3 million cut from children's mental
health funding;
$42 million cut from substance-abuse
treatment programs.
All this and more from a President who
had the effrontery in his State of the Union address to proclaim
the ringing lie, "We will not pass along our problems"
to future generations, even as the future generations are scheduled
to pick up the tab for his proposed disbursements to the very
rich.
Meanwhile, out in California a prosecutor
is trying once more to destroy Pee-Wee, who took a hit back in
1991 for the awful crime of jacking off in a Sarasota film theater
during a showing of Nancy Nurse. Reubens pleaded no contest and
slowly hauled himself out of the ditch, but last year the shadows
gathered round him once more.
His travails were recently described
by Richard Goldstein in a brilliant piece in the Village Voice.
A teenager complained to the LAPD about Reubens and a friend,
the actor Jeffrey Jones. Though the complaint was dismissed,
cops took occasion to search the homes of both men. Jones
is charged with taking pornographic pictures of a juvenile, a
felony. Reubens faces a lesser charge: possession. Both have
pleaded not guilty.
But what exactly does Reubens "possess"?
He collects vintage erotica, mostly gay, with copies of those
old physique mags that slaked covert gay fantasies the same way
Naked Women of Borneo in National Geographic helped out straight
kids in the same era. The cops took away 30,000 items for leisurely
perusal, leaving behind a further 70,000. The DA concluded there
was no case, and it looked as though Pee-Wee was in the clear.
Enter a zealous Protector of Youth in
the form of the city attorney, Rocky Delgadillo. One day before
the one-year statute of limitations expired, Delgadillo issued
a warrant for Reubens's arrest. If Reubens gets convicted he
could go to prison for a year and whatever public career he was
reconstituting after the Sarasota mishap will no doubt be history.
Goldstein writes that the cops told him Reubens had 6,500 hours
of videotape, including transfers of vintage 8-millimeter gay
films, with some minutes of teenage boys masturbating or having
oral sex. Remember, in 1982 the Supreme Court declared child
pornography unprotected by the First Amendment, with "porn"
encompassing even clothed images of children if they are construed
as arousing. "Child" means anyone under 18.
Collectors buy archives in bulk. An archive
comes up and you grab it quick. Goldstein cites a California
dealer of vintage magazines, who has sold to Reubens, as saying
"there's no way" he could have known the content of
each page in the publications he bought. In other words, Reubens
may get cooked for images he didn't even know he had.
But what if he actually did know what
he had? So what?
The state these days nails people for
what they have in their computers. Poor Pete Townshend draws
a well-publicized escort of no less than twelve police officers
to drag him off when he's arrested and absurdly accused of "incitement
to distribute" (also a crime here) because the silly ass
used a credit card to download images from pedophile sites, which
are monitored by the FBI in a vast operation involving multilayered
schemes of entrapment. Small wonder the G-men and G-women were
too busy to spare any time for urgent memos about Middle Easterners
learning how to fly 747s.
In England it's now a criminal act to
look at, receive or send any pictures or electronic images of
children that the police or other authorities construe as sex
related. These photos can be computer-generated, with no relation
to any physical being. Scan a hot little Cupid from Bouguereau,
tweak it around in Photoshop, and if the cops find it on your
laptop you're dead meat.
We're in the twilit world of the "thought
crime." Have a photo of a kid in a bath on your hard drive,
and the prosecutor says you were looking at it with lust in your
heart, and that is tantamount to sexually molesting an actual
kid in an actual bath. The possibilities for entrapment are rich
indeed. The FBI could send pedophilic images to a target, then
rush around, seize his laptop and announce that porn has been
found on the hard drive.
Once you're defined as a dirty beast
in a raincoat, it's hard to fight back. Look at what's happening
to Scott Ritter, entrapped in another Internet sting operation,
with the Feds now shopping for a suitable jurisdiction in which
to nail him again, even though his case was settled and sealed
at the state level, before some kind soul in favor of bombing
kids in Baghdad leaked the file to the press.
In an admirable article in the London
Daily Telegraph apropos the Townshend case, Barbara Amiel recently
wrote thus:
"Behind our own attitudes lurks
a recurring insistence that violent images create violent social
behaviour. Since we can't outlaw urges, including urges of paedophilia,
we throw our resources into preventing any way in which urges
can be gratified. But, if gratification involves nothing else
than the viewing of pictures or textual descriptions of the act,
making that a criminal offence strikes one as completely insane.
"Shouldn't we start by decriminalising
every human act that does not go beyond reading, viewing or listening
to representations of acts that if engaged in might be unlawful?
Then we could punish with various degrees of severity any deviant
acts that cause actual harm."
Sure, there are predators out there,
seeking to do young people harm. But don't confuse dreams with
deeds, any more than we should confuse George Bush's pledge to
future generations that "we will not pass along our problems"
with the pain his budgets and his war plans inflict on so many
young lives.
Yesterday's
Features
Muqtedar Khan
Heavy
Rhetoric, Wistful Thinking and Hydrogen Cars: a response to Bush's
State of the Union
William Hughes
An
Open Letter to France:
Justice is On Your Side
David Wilson
Meet
the Gloucester Weapons Inspectors: the Protest at the Fairford
Stealth Bomber Base
Anthony Gancarski
Free
Press? "There's No Damn Thing"
Josh Frank
Who Would Jesus Bomb?: 10 Reasons to Oppose War on Iraq
Abu Spinoza
Iraq: Web Resources
Dr. Gerry Lower
Class Warfare Against the Poor
Natalie Johnson Lee
Green
Party Response to Bush's State of the Union
Russell Mokhiber and
Robert Weissman
Stealing Money from Kids
Maria Tomchick
Bush's Smallpox Boondoggle
Paul di Rooij
War: It's Already Started
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