Ed Rosenthal

Ed Rosenthal is a California horticulturalist, author, publisher, and cannabis grower. He was arrested in 2002 for cultivation of marijuana, by federal authorities, who do not recognize the authority of states to allow the use of medical marijuana. He was convicted in a controversial trial presided over by Federal District Court Judge Charles Breyer.

Rosenthal was not permitted to mention, within the hearing of the jury, that he was growing marijuana for medical patients. Both sides knew that in a state which had voted 55% to make medical marijuana legal, 12 fully informed jurors would never unanimously agree to imprison Rosenthal for that non-crime. Judge Breyer consistently ruled, day after day and in many ways, to prevent the jury from hearing the whole story, deeming it "irrelevant under federal law" and prejudicial. Despite the fact that patients, many in wheelchairs, packed the courtroom's gallery to watch the trial, the jury did not figure it out, and convicted Rosenthal, convinced that he was a large-scale illegal "drug dealer". Much of the trial, from the jury's point of view, revolved around technical details of whether the hundreds of tiny "cloned" plants were mere plant cuttings, or had developed tiny root structures and thus would count as independent "plants", since the severity of the sentence depends on the number of "plants".

Only days after announcing their verdict, seven of the twelve jurors who had convicted Rosenthal held a public press conference in which they denounced their verdict and expressed their outrage. (One of the two alternate jurors also joined them.) They had discovered that they had been lied to on the judge's orders, after reading newspaper coverage of the case, which they had been barred from doing during the trial. One juror broke down in tears for hours when she discovered that she had convicted an innocent man. Judge Breyer had also refused to allow the defense team to mention that Rosenthal was deputizated by the city of Oakland, California to grow cannabis as a supply for medical marijuana patients. Rosenthal had been led by Oakland authorities to believe that he was immune from prosecution. The Drug Enforcement Administration denies having told the Oakland City Council that Rosenthal was immune from prosecution.

Rosenthal was ultimately sentenced to a single day in prison (which he had already served in jail after his initial arrest). Judge Breyer justified this radical departure from the five-year mandatory minimum sentence for growing more than 100 marijuana plants, by pointing out the uncertainty about whether Rosenthal's actions were legal or illegal (while also stating that any future defendants should receive the full penalty). This sentence was widely seen as a sop to public opinion after the jury's public outrage. The government appealed, seeking a longer sentence; Rosenthal also appealed, seeking to overturn his felony conviction. The appeals were on hold pending the outcome of Gonzales v. Raich. On June 6, 2005, however, the Supreme Court ruled that the federal government could constitutionally ban states from legalizing medical marijuana.

Defense attorneys also uncovered information that may lead to a new trial. Juror Marney Craig asked a friend of hers, a lawyer, if she had to follow Judge Breyer's instructions to convict on the fact of Rosenthal's commitment of the crime, and not on the fairness of the law that makes his actions criminal. Her friend told her that she did have to follow the judge's instructions, and she told another juror, Pamela Klarkowski. The defense attorneys have argued that this outside information tainted the jurors, inasmuch as it is inaccurate; under the principle of jury nullification, jurors can vote not to convict on the basis of the law being unfair and, in fact, can never be required, by a judge or anyone else, to divulge the reasons behind their vote.