Rosenthal Loses Motion for New Trial, Sentencing Date Looms

California medical marijuana activist and cultivation expert Ed Rosenthal is one step closer to federal prison after a judge denied his motion for a new trial. Rosenthal, who grew marijuana for patient providers in compliance with state law and the approval of local authorities, was convicted on federal marijuana cultivation and trafficking charges. The bespectacled author of numerous books on marijuana cultivation now faces up to 85 years in prison and a minimum of five years at sentencing hearing set for June 4.

Rosenthal was convicted on federal charges after a trial in which US District Judge Charles Breyer refused to allow him to mention medical marijuana or California's law in his defense. After the trial, jurors in the case denounced their own verdict, saying they would not have convicted Rosenthal had they known the whole story and creating a wave of national attention to the federal persecution of the medical marijuana movement.

In his motion for a new trial, Rosenthal claimed Breyer erred by refusing to let him argue in his defense that he believed he was immune from federal prosecution under state law and local action, by improperly excluding potential jurors who had favorable beliefs about medical marijuana, and by improperly instructing the jury about its right to nullify the law by voting not guilty. Rosenthal also argued that juror misconduct -- one juror asked a lawyer friend for advice about jury nullification and was told to follow the judge's instructions -- violated his right to a fair trial.

But Judge Breyer was having none of it. No federal official ever told Rosenthal he was immune from prosecution, Breyer wrote in a 27-page opinion upholding his own courtroom rulings. And federal law superseded state law, anyway. "Since the Civil War this country has recognized that whatever the views of local governments, such views do not control the enforcement of federal law," he wrote. Neither did his instructions to the jury "preclude the jury from bringing its sense of justice to bear on its verdict, nor did they divest the jury of its inalienable right to nullify," Breyer wrote. "As such, Rosenthal is not entitled to a new trial on this basis." And the fact that a juror's friend advised her to follow the law "interfered with [her] inclination to disobey it" is hardly basis for appeal, Breyer wrote.

Rosenthal told the Associated Press he would appeal Breyer's ruling to the US 9th Circuit Court of Appeals, while Breyer told the courtroom he would consider legal reasons to sentence Rosenthal to less than the five-year mandatory minimum sentence on June 4. With both time and legal options running short, it appears that the Bush administration's determination to stamp out medical marijuana experimentation in the states will soon turn the "guru of ganja" into one very high profile federal prisoner.