How Not to Write a Law

The case of Ed Rosenthal is as schizophrenic as Prop. 215; but it's no more so than voters' attitude about pot.

The choreography certainly was impressive. On the morning of February 12, 2002, officers from the Drug Enforcement Administration simultaneously raided a San Francisco cannabis club called the Harm Reduction Center, the private homes of Bay Area medical pot activists, and a West Oakland warehouse where High Times columnist and author Ed Rosenthal grew hundreds of plants for critically ill patients. A few hours later, as Rosenthal stewed in a cell, Bush administration drug czar and longtime Clinton antagonist Asa Hutchinson strutted onto the stage at San Francisco’s Commonwealth Club and compared the federal war against medicinal marijuana to a University of Arkansas Razorback game, in a speech titled “Let’s Don’t Punt on the Third Down.” But he’d already made his point.

Eleven months later, Hutchinson was off chasing other headlines, but Rosenthal faced multiple drug and conspiracy felonies. His lawyers planned to base their defense on his having been deputized by the City of Oakland to distribute pot. But Federal Judge Charles Breyer assiduously quashed all mention of Proposition 215 and medicinal marijuana, stripping the defense of its only argument. After the jury found Rosenthal guilty, four jurors stood alongside the defendant at a press conference and declared that they’d never have convicted Rosenthal if they’d known who he really was. Nonetheless, he now faced a minimum of five years in a federal prison.

Then war approached, and reporters forgot about Rosenthal. But his lawyers toiled on, and while no one paid attention, attorneys Joe Elford and Bill Simpich made a spectacular claim in a brief they filed in federal court. Not only had the trial jurors been manipulated into a conviction they now regretted, but federal prosecutor George Bevan had actually lied to the grand jury to get the indictment in the first place. “I’m more upset by the grand jury than by anything,” Simpich says. “It makes the trial a joke.”

Indeed, this whole affair has been one long comedy of errors. Although Judge Breyer has only released a small portion of the transcripts, what little has been made public indicates that at least one of the grand jurors, and possibly several, had profound reservations about indicting a man who just wanted to provide relief to people in pain. More importantly, this case reveals a mother lode of bad faith and moral ambiguity, and not just on the part of the prosecution. Everything associated with medicinal marijuana — the activists and their lawyers, the prosecutors, even the law itself — is tainted with hypocrisy. Prosecutor Bevan tried to lure the grand jury into somnolence with assurances that the Ashcroft Justice Department isn’t trying to wipe out medicinal marijuana everywhere it takes root. Rosenthal’s lawyers overstated Bevan’s bad faith and downplayed the quasi-criminal element in the medicinal pot movement. The activists themselves occupy a twilight zone of legitimacy, in which many players are both health-care activists and drug dealers. Proposition 215 is so terse and vaguely worded that legal scholars are still trying to figure out what’s legal and what’s not.

This mélange of half-truths and contradictions all stems from the public’s intellectual ambivalence about pot; we don’t want to persecute people for getting high, but we aren’t ready to accept it either. And until we make up our minds, we’ll be doing this dance in perpetuity.

The grand jury was originally conceived as a bulwark against prosecutorial excess, in which citizens can examine the evidence, ask questions, and even argue with the prosecutor over whether a trial is justified. These days, it’s a mere formality. No judge or representative for the defense may attend the proceedings; the prosecutor is the only court officer on stage, and he can coax or manipulate the grand jury into, as the saying goes, “indicting a ham sandwich.”

But the grand jury in Rosenthal’s case didn’t go without a fight. Because Bevan intended to call DEA agent Jon Pickette as a witness at Rosenthal’s trial, he had to give the defense all previous legal documents pertaining to Pickette, including his grand jury testimony. Defense lawyer Bill Simpich claims that as he lay in bed reading the testimony, he sat bolt upright in shock.

Two weeks after the raids, Bevan had called Pickette before the grand jury and led him through the chain of evidence. As he built his case, members of the jury contested not only his characterizations of Rosenthal and his colleagues, but the very legal foundation of the indictment he was asking them to return. Just as juries throughout California have refused to convict medicinal marijuana distributors despite a preponderance of evidence, at least some of these men and women may have been inclined to ignore federal law and let Rosenthal go free.

Most of the arguments between the prosecutor and the grand jury involved the absurdly imprecise law that is Proposition 215. That initiative may allow people to possess medicinal marijuana, but whether it allows them to acquire it is another question, one still being hashed out in courts throughout the state. As Bevan insisted that state law continues to prohibit people from obtaining marijuana, jurors wondered how exactly patients are supposed to use pot if they can’t buy it.

When Bevan walked the grand jury through a description of Rosenthal’s operation, one juror challenged the prosecutor’s suggestions that Rosenthal and his colleagues were doing something shady — perhaps prompted by prior testimony that Rosenthal has invited the fire department to inspect his warehouse. “These cannabis clubs are established to provide medicinal marijuana to people who get an okay from some public entity to go in and buy doses of marijuana,” this juror said. “Where are these cannabis clubs supposed to acquire their inventory? Do these growers have to get a license? They don’t seem to be hiding anything. …”

“Let me answer that question,” Bevan said, “It’s a good question. The state law allows the Compassionate Use Act of 1996, sometimes known as Prop. 215 …”

“Most of us probably voted for it,” a juror reminded him.

“Whatever, that’s good,” Bevan said. “The fact of the matter is it allows marijuana for your personal use and to be cultivated, if you are the primary caregiver. … A cannabis club does not have the authority under state law to distribute cannabis or marijuana. And so then you say, well, there’s a disconnect here.”

Another juror spoke up soon thereafter. “If you don’t want to grow your own, and your caregiver doesn’t want to grow your own, and you have one of the four classifiable diseases to use it medicinally, what alternative do you have for getting that marijuana?”

“In answer to your question, there is no legal way under California law to acquire marijuana for your own personal use,” Bevan said. “You are doing it basically at your own risk, and with the — at least in the environment in this district, probably nothing would happen to you.”

So you can have pot, but you can’t obtain it — except that you can, because no one really enforces pot laws in the Bay Area anymore. Ultimately, Bevan didn’t really have to debate Proposition 215 with his jurors, since only federal law was at issue. He did this in part to assuage the misgivings of grand jurors who clearly wanted to preserve patient access to medicinal pot and worried that if people couldn’t get it from, as one juror put it, “the Rosenthals of the world,” they would be condemned to unremitting pain and nausea.

The jurors continued to pick at the prosecutor’s case. When Pickette described a “hidden door” to a secret grow room in the Harm Reduction Center’s basement, only to admit that someone had just shoved a bookcase in front of the door, a juror remarked, “Very undramatic,” and “not like Harry Potter.” As Bevan suggested that Rosenthal’s colleagues were involved in drug dealing for profit, a juror pointedly asked if it was true that Rosenthal was only interested in pot as medicine. One juror asked whether this case was “blazing new ground” and establishing precedent for a new crackdown on medicinal marijuana. And when Bevan was walking the grand jury through the scale of addictive drugs, one juror asked where tobacco and alcohol fall on the spectrum. Bevan answered, “I don’t believe that tobacco and liquor is a drug-controlled substance as defined under ‘controlled substance,'” prompting the forewoman to joke, “That’s what the senators use.”

Throughout the day, grand jurors expressed considerable skepticism about the prosecution’s case. But they indicted anyway, perhaps with the expectation that Rosenthal would be able to present his side of the story at trial. But that’s exactly what didn’t happen eleven months later.

After reading the transcript, Rosenthal’s attorneys filed a motion to dismiss Rosenthal’s indictment. They claimed that Bevan, faced with a grand jury sympathetic to the defendant and worried about patient access to pot, repeatedly lied and misled the jurors in order to reassure them that medicinal marijuana would remain safe and easy to get. “When the grand jury persisted, the prosecutor misstated the law and, most troubling of all, informed it that the federal government would not target the cannabis clubs and that the sick and dying would continue to receive their medicine,” they wrote. “The prosecutor assuaged the grand jury’s expressed concern with an assurance he knew to be false” [italics theirs].

The heart of the defense’s claim rests with one sentence by Bevan. As jurors began to express concerns about sick people barred from cannabis clubs, Bevan told them, “We have not sought to shut down the operations of the club.” Rosenthal’s lawyers argued otherwise: “The truth of the matter is that the federal government had sought to shut down the operations of at least six clubs through a civil injunctive relief action filed in this court. More specifically, just days earlier, the government raided the Harm Reduction Center, stripped it of all its inventory and records, and padlocked the door. … The prosecutor’s false assurances to the grand jury on this point, calculated as they were to assuage their concerns for the sick and dying, constitutes the most flagrant and prejudicial misconduct of all.”

But was this really a lie? The prosecutor refused to comment for this story, and the brief he filed in response barely dwells on this allegation, beyond stating that “the prosecutor did not in any way distract or deceive the grand jury.” But former Harm Reduction Center employee Bob Martin claims that the center was back open for business that very day. “When they raided the Harm Reduction Center, it opened two hours later,” he. “It never was shut down.” Other local pot activists backed up Martin’s story, although they admit they didn’t see it with their own eyes.

Rosenthal’s attorneys hedged a bit when confronted with Martin’s claims. Yes, the club was reopened, they concede, but not by the original owners. Some “squatters” apparently snuck in and renamed the club the Healing Leaf. In other words, the club’s doors may have been open, but the guys who signed the lease either sat in jail or fled the country. And that, they say, constitutes an effort to shut down the club.

Martin plays another important role in this case. When the feds hit Rosenthal with the conspiracy charge, they needed someone who actually had seen him deliver marijuana plants to the club. They subpoenaed Martin, who sang like a bird and helped seal Rosenthal’s fate. Consequently, many medicinal pot activists regard Martin as a snitch, though he says his testimony was coerced, and caused him much anguish. Last month, when the National Organization for the Reform of Marijuana Laws held its annual conference in San Francisco, Rosenthal allegedly had Martin thrown out of the event for his role in the prosecution, Simpich says.

But Martin got something very valuable out of the deal: immunity. At the very moment he testified against Rosenthal, Martin was running his own cannabis club in San Francisco, handing out dope to the masses. He openly talked about plans to start two more clubs in the next few months — the very acts for which Rosenthal faced years in prison. Prosecutor George Bevan not only granted Martin immunity in exchange for his testimony, he apparently did nothing to curtail his witness’ ongoing illegal business.

But that’s par for the course when it comes to medicinal marijuana. Nothing seems to make sense in the wake of Proposition 215; patients can own cannabis but not acquire it, one branch of government sanctions pot while another makes war on it, and one drug distributor goes to prison while another seemingly has the federal government’s permission to operate in the open. And everyone knows that the medicinal marijuana campaign is at least 40 percent bullshit, a convenient way for some people to get high while wrapping themselves in the moral cloak of medical necessity.

Perhaps the most absurd consequence of Proposition 215 is this: Far from reducing the criminality associated with the drug trade, the federal government’s sporadic crackdown on medicinal marijuana actually plays into the hands of criminals. From Ed Rosenthal, to the Wo/Men’s Alliance for Medical Marijuana in Santa Cruz, to the Los Angeles Cannabis Resource Center, the feds have targeted pot distributors that secured business licenses and had the blessings of local authorities. If the DEA continues to go after the honorable cannabis suppliers, the ones who work with city agencies and keep criminals out of the business, the field will be cleared of good-hearted citizens, and the vacuum filled by that old bogeyman of the drug war, the drug dealer.

Amid all these ambiguities, the only sure thing is that Ed Rosenthal will be sentenced to prison on June 4. None of the defense team’s claims moved US District Judge Charles Breyer to throw out the indictment or grant a new trial. Having diligently excluded all references to Proposition 215 during the trial, Breyer has earned the animosity of pot activists throughout the state, his centrist liberal credentials notwithstanding. As Rosenthal’s lawyers prepare his appeal, they are all too aware of one last irony: Should this case go to the Supreme Court, Breyer’s involvement virtually guarantees that they will lose. Rosenthal will need all five of the less dogmatically conservative justices, and one of them happens to be Stephen Breyer, the brother of Charles Breyer. Justice Breyer will surely recuse himself, and Rosenthal’s fate could then be sealed by William Rehnquist, Antonin Scalia, Clarence Thomas, and Anthony Kennedy. Although their professed respect for states’ rights ought to favor the defense, their instinctive antipathy to dopers like Rosenthal might as well make them the Four Horsemen of the Apocalypse.

Rosenthal doesn’t find any of this particularly amusing. A Bronx native and former Yippie, he’s edgy and abrasive, the kind of hippie who, as Abbie Hoffman once said, “held his flower in a clenched fist.” When it comes to unkind words, he’s got plenty in reserve and deals them out to everyone arrayed against him, especially Charles Breyer. As he faces prison, it galls him that Breyer, a scion of the San Francisco Democratic Party establishment, gets to hobnob with his friends in the liberal intelligentsia while selling out his own professed values. “Look at his record on civil liberties; he’s no darling liberal,” Rosenthal growls. “He and his brother want to parade in San Francisco society as if they’re part of it, but they’re really part of the federal juggernaut and everything it’s doing to restrict civil liberties.”

Last week, the brothers Breyer assembled before the elite of San Francisco, basking in the admiration of Northern California’s legal aristocracy. They had come to help out the San Francisco Historical Society, which charged $75 a head for the privilege of hearing the brothers in conversation on the nineteenth floor of the federal building. More than one hundred judges, lawyers, and clerks sat in the ceremonial courtroom, struck dumb by the easygoing majesty of Stephen Breyer and his younger, less cosmopolitan brother. In true City Arts and Lectures fashion, the two Breyers sat before the audience in leather-backed chairs, trading quips beneath the seal of the United States of America.

Activists with Berkeley’s Cannabis Action Network had planned to crash the party, but they were nowhere to be found as Charles Breyer, to the tittering delight of the crowd, asked his opening question: “Do you think mom loved me more than she loved you?” Stephen Breyer smoothed the wrinkles from his purple silk shirt and declaimed about the inner workings of the Supreme Court, while Charles, avuncular and folksy in his glasses and bow tie, pitched softballs to his brother. The scene was suffused with power and decorum, replete with reminders that at this level of authority, the real world upon which these two men have such a profound effect seldom need touch them at all. “Contrary to what you will read in the law books, I believe that we are much more like a European court, where you answer questions, rather than dealing with cases, than is commonly recognized,” Stephen Breyer opined. “We really take cases to answer a legal question. And if we cannot answer that single legal question, we shouldn’t take the case.” Stephen even offered some abstract misgivings about mandatory minimum sentences, the very kind that now hang over Rosenthal’s head.

At the reception afterward, waiters glided by with trays of brie and wine, and federal marshals swept the room with their eyes. Older attorneys reminisced about the times they litigated with the Breyers’ father, and young suits hung back, waiting to pay their respect. I finally got my chance to ask Stephen Breyer a question: When you have to recuse yourself from a case presided over by your brother, does it ever worry you that doing so might change its destiny? “I’m a professional, so is he; we just go on the best we can,” Breyer said and broke away in search of another hand to shake. Charles was similarly evasive. “We don’t sit around and talk about the Constitution,” he said. “He has his job, and I have mine.”

As the two Breyers move among their admirers, and John Ashcroft searches for yet another Rosenthal to persecute, Rosenthal awaits his fate in his Oakland warehouse. At this moment, all the power and folly of the war on drugs, with its crusaders, villains, and victims, rests on the fulcrum of these two brothers. Yet they’re strangely ineffectual; Charles Breyer reportedly said he had no choice but to exclude Rosenthal’s defense, and Stephen Breyer’s expected recusal in any appeal to the Supreme Court, as well as an upcoming case involving the Oakland Cannabis Buyers Cooperative, places the fate of medical marijuana in the hands of his more conservative colleagues. That these two professed liberals should find themselves at the center of the Bush Administration’s war on drugs, yet be utterly powerless to mitigate it, is the final absurdity of Proposition 215.

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