Rosenthal Faces the Music in Medical Marijuana Case

Come June 4 Ed Rosenthal will be back in US District Court in San Francisco, to hear what sentence Judge Charles Breyer has decided to impose. Earlier this year a California jury found him guilty of cultivating marijuana, of maintaining a place to cultivate marijuana and of conspiring with others to cultivate marijuana. He’s in his early 50s now and he’s looking at the possibility of hauled off to prison for the rest of his life.

Let’s all hope that it won’t come to that, and that Breyer will stay his sentence, pending appeals that may end up in the US Supreme Court.

The feds went after Rosenthal because he’s a high profile advocate of legalized marijuana, famous for his books and articles, not least in High Times. The charges seemed surreal. Under the terms of California’s Compassionate Use Act of 1996, okaying the cultivation and use of medical marijuana the City of Oakland designated Rosenthal the legal supplier of marijuana starts to those in chronic pain.

Back then, on the eve of the trial, Rosenthal told me, “This is a tipping point case. If they put me behind bars they are going to start closing these clubs. The clubs will have no excuse. Everyone will have to plead out. It’s really important that I win this case.”

He will win in the end, but Rosenthal lost that round in US District court. His trial was a grim farce. Breyer (brother of US Supreme court justice Steven) overruled every effort of Rosenthal’s lawyers to introduce the fact that the man in the dock had been working under the aegis of the city of Oakland, abiding by the provisions of a state law approved by the voters of California.

Thus kept in the dark, and with the ground cut from under Rosenthal’s defense, the jury found him guilty. Then the jury stepped out of the jury box and for the first time learned the actual circumstances and background of the charges. Within days six of them mustered in front of the US courthouse to apologize publicly to Rosenthal, and to proclaim their shame and indignation that they had been dragooned into this parody of justice.

I was there and it was truly an amazing occasion. Terence Hallinan, the District Attorney of San Francisco, SF supervisors Tommy Ammiano and Matt Gonzalez, and the chairman of the city’s board of supervisors all stepped to the microphone to applaud the penitent jurors for their stand, to denounce the conviction. Board Gonzalez invoked the long tradition of jury nullification which, had this jury known about it, would have enabled them to set aside Breyer’s instructions, consult their consciences and found Rosenthal innocent.

The next round in the case concerned precisely this issue of whether a juror can discount a judge’s instruction. In the wake of the verdict two jurors, Marney Craig and Pamela Klarkowski, disclosed to Rosenthal’s lawyers that during the trial, outside the jury room, they had discussed, at least twice, the issue of disobeying Breyer’s instruction. Craig said she had phoned an attorney friend who had told her forcefully that she had to follow Breyer’s instructions and would be get into big trouble if she used her own judgement. Craig had then discussed this call with Klarkowski.

Rosenthal’s lawyers went before Breyer again, arguing for a mistrial on the grounds of malfeasance by the two jurors. Though Craig took the Fifth, the facts weren’t disputed. Breyer hasn’t issued a ruling yet. On the face of it, you’d think it’s open and shut. Aside from Breyer’s outrageous restrictions, did Rosenthal get a fair trial if two jurors were secretly sitting on a piece of bad legal advice, to the effect that if they stepped outside the narrow lines drawn by Breyer they’d face serious sanctions?

But Breyer doesn’t want to order a new trial, one in which the chances of a jury aware of the background of the case and also of the possibility of nullification would be far higher. If he rejects the defense’s motion for retrial, it will be one more grounds for appeal, along with the basic issue of the contradiction between state and federal laws, already being considered by the Ninth Circuit Court of Appeals.

Last September, the DEA raided a marijuana club in Santa Cruz, arousing enormous rage, not least among Santa Cruz’s city council, which has now filed suit in federal court demanding damages as well as an injunction to prevent the
DEA from infringing on state affairs again. In February, the feds launched a hundred raids across the US, seizing glass bongs and kindred materials. They made more than 50
arrests, even though they found no drugs, and even though, in California and other states, possession of marijuana pipes has been decriminalized.

So, just as Rosenthal predicted to me, the feds took the guilty verdict as a green light. Across California people acting within the terms of the 1996 California statute have every reason to fear that DEA will come crashing through the door and that federal judges like Breyer will back up their right to do so. Down in Los Angeles people involved in medical marijuana activities have plead guilty, not prepared to risk the possible twenty year sentence that Rosenthal is staring at.

The only silver lining thus far, aside from the edifying stance of principle taken by Ed Rosenthal is that the issue of jury discretion, or jury nullification is on the front burner again. In the days after Rosenthal’s conviction about half Rosenthal’s jurors began to proclaim publicly their disillusion with the justice system as disposed by Judge Breyer, you could hear intense seminars on jury nullification on at least one of San Francisco’s biggest AM stations.

Hey, nullification worked for John Peter Zenger and for those nineteenth century folk charged with sheltering runaway slaves. As anti-slavery sentiment grew juries wouldn’t convict them. You’ve been called to serve on a jury? I strongly recommend you take the time to study a useful little guide drawn up by Clay Conrad, chairman of the Fully Informed Jury Association. Money to help with Ed Rosenthal’s defense should go to

And yes, this is a Republican administration rhetorically committed to states rights. Bush himself made a campaign issue of it, ladling out a plateful of pledges on states’ rights alongside equally vociferous promises that he wouldn’t be in the nation-building business. But don’t conclude from this that Clinton Time was better. So far as marijuana was concerned it was awful.

Ed Rosenthal, incidentally, is a man of tireless energy. Amid his tribulations he’s found time to sue the trust which controls the money from the very successful High Times magazine, founded by Tom Forcade, who died, allegedly a suicide, though under slightly odd circumstances back in the 70s. Rosenthal has now won standing in Maricopa County, Arizona, as a plaintiff who can to get discovery to prove he has standing.

That went by you, didn’t it. Rosenthal, a 20-year outside staff contributor to High Times charges that those controlling the trust set up by Forcade have abused the trust’s original mandate and filched millions.

“It’s more than the case of a writer being screwed,” Rosenthal tells me. “If it was just me, you could say, too bad that justice was not done’, and leave it at that. But these days could have given NORML and the Alternative Press Syndicate between $20 and $40 million. Think of what difference that would have made. When NORML had a budget of $100,000 to $200,00 instead they could have had a million a year.

“Let’s say someone stole money from Enron, from Lay, who would care. This is different, removing money from a political movement. Millions were affected. The whole environment could have been changed.”

Nobel Peace Prize? You’ve Guessed It

It was bound to happen and it did. A Norwegian parliamentarian has nominated Bush and Blair for the Nobel Peace Prize on Thursday, praising them for winning the war in Iraq. Simonsen’s proposal will have to wait for the 2004 award because the deadline for nominations for 2003 passed on February 1. With nominees including the Pope and Bono. Better the Pope than Bono, though in general the viler the candidate the greater the disrepute into which the whole awful Nobel process is plunged.

About Those Breasts and Martinis

CounterPunchers take their cocktail lore seriously. A few days ago I wrote a little item about a line borrowed without any acknowledgement of same by Christopher Hitchens. The line was about how many gin martinis one should have at a single session, the comparison being with women’s breasts. Reviewing the source material turned up in a google search I said it seemed likely that the line came from the great San Francisco columnist Herb Caen, “Martinis are like breasts, one isn’t enough, and three is too many”.

In came a prompt endorsement from D.J. Harris “RE: Hitchens, martinis, and breasts. Your intuition that the quote is from Herb Caen is right on the mark. I am absolutely certain it appeared in a Caen column in the Chronicle some time in the mid 60s. I distinctly recall reading that line and commenting about it with friends of mine. I was a graduate student at Berkeley in those days and an avid reader of Caen because of the brilliant, dry wit (not the juicy tidbits of gossip) that filled his column. In my circle, Caen and another Chron columnist (anti-war, anti-establishment Art Hoppe) were a regular treat.” Not to forget Charlie McCabe’s Fearless Spectator column.

Thanks Mr Harris, Though Don’t Forget

Half a dozen readers promptly reminded me that line appears in the 1974 film The Parallax View, directed by the late Alan Pakula. Robert Atkinson provided the context. “The scene: comely small-town bartender offers a clean-and-sober Warren Beatty a martini, using the aforementioned line as an enticement. He wisely orders a milk.”

Thus far, the earliest point of excavation is provided by Don Neighbors, of Orange Park, Florida, who writes thus: “I first heard the expression in 1955, and it was my impression, from all the eye-rolling, etc., that it had been around for a long, long time then.”

Frank Armstrong offered refinement: “The version of that joke that I heard, well over ten years ago, did not employ the breast analogy. It goes like this: ‘As to martinis: One is not enough, two is too many and three is not enough…’ It is a dry joke, made funnier if you hear it while on your fourth martini.”

A scholarly friend of CounterPunch suggested that “to me, more than two also suggests mammalian animals, though they have even numbers of teats (CH and bestiality?) also, many humans are born with a third, displaced nipple on the chest or on the side — more of a prob if you are a girl — genetic glitch giving rise to phrase ‘witch’s tit’. Considered not a good thing….(CH and old fashioned superstitions re minor deformations?)”

Which takes us to the reminder from another reader that Homer Simpson boasted once of his third nipple. I’m not steeped in Simpson lore, but I don’t see Homer S as a martini kind of guy.

So here we are, with the line active back in ’55. I emailed Mr Neighbors asking where he was when he heard it and how old was he, but no answer as yet. Any further sourcing will be welcomed.

I must also note a few tetchy emails asking How come our site has time for this kind of lighthearted stuff, when great issues of war and disaster crave our undivided attention. Folks, we run about ten stories a day, seven days a week, most of them addressing the gloomier side of the world picture. But neither Jeffrey nor I are gloomy guys and we think it behooves radicals to take the advice of that character at the end of the world’s greatest political movie, The Life of Brian. Albeit crucified at the time he recommends that we look at the sunny side of life, which of course included martinis.


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