Rosenthal asks federal judge for new trial
By Julia Cheever
June 23, 2007
Oakland marijuana activist Ed Rosenthal, convicted of marijuana
cultivation for a second time last month, has asked a federal
judge in San Francisco for a new trial.
Rosenthal, 62, argued a half-dozen reasons for a new trial in
a brief filed June 11, including a claim he was denied a jury
of his peers because people who supported medical marijuana were
barred from his jury.
Defense attorney Robert Amparan wrote, "Rather than empanelling
a jury of Mr. Rosenthal's peers, the court excluded over 60 percent
of the potential jurors based solely on their views of medical
But Assistant U.S. attorney George Bevan, in a response filed
with U.S. District Judge Charles Breyer this week, contended,
"None of the defendant's allegations have any factual or
The prosecutor wrote, "The trial record is clear that the
defendant received a fair trial; that he was convicted by an impartial
and unbiased jury, on the strength of clear and overwhelming evidence
that the defendant manufactured thousands of marijuana plants."
Rosenthal, the author of a dozen books about marijuana, was convicted
in Breyer's court on May 30 of three counts of conspiring to grow
marijuana and growing the drug at an Oakland warehouse between
1998 and 2002.
He was found guilty of three similar counts in an earlier trial
in 2003, but that conviction was later overturned by an appeals
court on the ground that a juror improperly consulted a lawyer
friend during deliberations.
Breyer has said he will sentence Rosenthal to the same sentence
as before -- one day in jail, already served -- but earlier this
month delayed the sentencing until he received the new trial briefs.
The judge has not yet set a date for sentencing or a possible
hearing on the new trial bid.
A new trial motion is a common defense move after a conviction
and had been promised by Rosenthal's lawyers, but is rarely successful.
Rosenthal has claimed he was growing starter plants for patients
under California's medical marijuana law, but was not permitted
to raise that defense during his trial because federal drug laws
make no exception for state medical marijuana statutes.
During jury selection, Breyer dismissed 54 potential jurors,
out of a pool of 90, who said they had views on medical marijuana
that could affect their ability to apply the federal law.
Rosenthal's new trial motion also claims Breyer erred in excluding
evidence about the scientific value of medical marijuana and precluding
witnesses who would have testified about his state of mind.
But Bevan wrote, "The medical value of marijuana was not
relevant to any element of the charged offenses."
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