Concerning Pee-Wee Herman

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 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.


Alexander Cockburn’s Guillotined!, A Colossal Wreck and An Orgy of Thieves: Neoliberalism and Its Discontents are available from CounterPunch.