A Peek Behind the Rosenthal Grand Jury Veil: Manipulation Rampant

By Daniel Forbes-
for DrugWar.com

Ed Rosenthal

February 4, 2003

Groping for an indictment of Ed Rosenthal from a California grand jury veering out of control, Assistant U.S. Attorney George L. Bevan, Jr sought some reply to a rebellious grand juror who'd just argued that most of the jury had probably voted for the state's 1996 medical marijuana initiative. Said this official of a federal government currently running roughshod all over California, "Whatever, that's good."

And then this federal prosecutor admitted: "The fact of the matter is it allows marijuana for your personal use and - to be cultivated, and if you are the primary caregiver."

Had Bevan made such a statement during Rosenthal's actual trial, U.S. District Judge Charles Breyer would have immediately stifled him.

At another point Bevan added, "the supply side of the equation, okay, is not protected under California law. The only thing that's covered is if you can grow your own - okay? Or you're sick, and there's some criteria, as you all know, that certain diseases are specified, like cancer." Along with the specified illnesses, there's also a provision for doctors' open-ended recommendations.

Having sought to reassure the grand jury with that, Bevan later told it, though he noted the law forbids it, "[A]t least in the environment in this district, probably nothing would happen to you. If you go in right now with a card in the Cannabis clubs, you know, you're probably okay."

You're okay for the next week or month maybe, or as long as you can find a club open and with some medicine in stock.

Decrying what he views as the misperception that "somehow Prop. 215 gave a free pass to a lot of activity," Bevan asserted that "you look at the conduct that's specifically protected, it's fairly narrow…." His boss, also a federal official, might feel that no conduct, narrow or broad is protected, but let them sort it out.

Jon Pickette, the Drug Enforcement Administration agent ostensibly testifying in response to Bevan's questions - though at times Bevan seemed reluctant to yield the floor - tried to rescue Bevan, soon reminding the grand jury: "And also, I think it's important to mention that under Prop. 215, you cannot sell marijuana. And despite all of that, it's still against federal law."

With perfect timing, a juror immediately complains: "Well, you can understand our confusion then."

In the teeth of Bevan's reply that there's no cause for confusion, one juror tries to help, saying that while the clubs might be "allowed to operate in our, what we call, 'liberal' cities," someplace like Bakersfield would draw the line.

As Bevan's joke about the "founding fathers in Bakersfield" - though why he's bringing up the long departed I don't know - no doubt falls flat, DEA Agent Pickette attempts another rescue. He reminds the grand jury: "And I think that another important point is that it is against federal law, and there's a recent Supreme Court decision," etc.

At another point, one grand juror summarized their conundrum neatly. If state law, this juror asked, established the clubs "to provide medicinal marijuana to people who get an okay from some public entity to go in and buy doses of marijuana - where are these Cannabis clubs supposed to acquire their inventory for disbursement?"

Saying that Rosenthal had been growing pot in the middle of Oakland, this juror added: "They don't seem to be hiding anything."

(Indeed, Rosenthal had a city inspector come by to check his wiring.)

Bevan leaped in, saying, "Let me answer that question. It's a good question." And, after his endorsement of Prop. 215 that began this article, he stated that "a cannabis club does not have the authority under state law to distribute Cannabis or marijuana."

(Technically that's true: only patients and their caregivers are exempt under 215. They have interpreted that to mean they can join together in clubs to facilitate obtaining medicine.)

The U.S. Attorney's office declined comment beyond the legal papers cited below.

Public Lamentations

Unlike grand jurors, regular jurors can't ask questions. But, when they actually learn the truth outside the halls of justice, they can protest. Though overawed by the majesty of the federal trial of pot botanist Ed Rosenthal in San Francisco, several jurors, including the foreman, will call today publicly for a new trial, charging they were misled into convicting him. As juror Marney Craig told Alternet's Ann Harrison, "What happened was a travesty, and it's unbelievable, unbelievable that this man was convicted. I am just devastated. We made a terrible mistake, and he should not be going to prison for this."

Such novel public lamentations please reporters, but they come a day late and more than a dollar short for Rosenthal. Yet the drug-reform community should not castigate these citizens too harshly. For odd as it may seem to patients dependent on medical marijuana to ease their pain, these jurors, regular folks - noncombatants in the war on drugs - truly had no knowledge of who Rosenthal is.

Said Keith Stroup, Executive Director of the National Organization for the Reform of Marijuana Laws, "There's was enormous good will for Ed. But if jury nullification didn't work for him, I don't think it's much of an option beyond a patient who's just growing a couple of plants. After all, the judge is sitting up there on an elevated platform with the American flag behind him, telling jurors when they can come and go. It takes a strong-willed individual." He added that any strategy from here on out has to reflect the fact that "the feds are playing hardball."

Judge Breyer's stranglehold on the truth had them believe he was a big-time drug dealer, in it solely for the money. Never mind the inconvenient fact that the city of Oakland had officially charged the well-known cultivation columnist and advocate with growing medicine so spastic patients in wheelchairs wouldn't have to risk arrest on street corners seeking expensive and maybe ineffectual pot.

(Agent Pickette told the grand jury that while the street price for the pot Rosenthal was supplying patient dispensaries was "about $6600 per pound on the street market," he was actually supplying it for "right around $3200.")

Castigate these citizens not, led by the nose as they were. As regular juror, Marney Craig, told Harrison, "I didn't know what would happen to us if we didn't follow the rules, how much trouble I would get into." She added, "I was totally intimidated into going along with the verdict because I didn't see any other way."

Unlike Craig and her eleven colleagues, back last February - following the raid commemorating DEA chief Asa Hutchinson's descent that day on San Francisco - the grand jurors deciding on whether to unleash a federal prosecution on Rosenthal got to poke their noses into things - or at least ask some questions.

One thing they worried about was where that wheelchair-bound soul who can't grow her own would get her medicine.

One grand juror expressed confusion about just where patients with "one of the four classifiable diseases to use it medicinally" were to get their medicine. She was following Bevan's lead regarding, as he put it, "certain disease are specified, like cancer."

Remarkably enough, this visionary assistant U.S. attorney cited a judge's opinion which, "from what I can recall, he mentioned getting it overseas." That not quite sounding right in his ears, Bevan trailed off marvelously: "I think there's a reference there. And it's - he had a couple of - you know, I guess it was just brainstorming on his part."

Seeking to reassure any jurors concerned about pain and suffering, Bevan asked, "Is it correct, Agent Pickette, that when a narcotics search takes place, they would actually leave a certain number of plants there?"

Without choking, Pickette replied, "Right, they would leave some."

Tell that to Valerie Corral, whose garden was destroyed last fall.

Indicating that Rosenthal himself was the target, Bevan added, "We have not sought to shut down the operations of the club. Indeed, from as near as I've heard -"

And Pickette pipes up: "It is open and operating." Bevan concurs.

Rosenthal attorney William M. Simpich laughed at that, telling me the feds seized just about everything, including cannabis and patient records, inside the Harm Reduction Center and left the doors gaping open for squatters to move in and take over.

As Pickette testified regarding the fact that the marijuana was, in fact, sold (albeit he'd stated previously, at less than half the street price), a grand juror asked, "For medical reasons, though, right?"

And Pickette answered affirmatively.

Said another juror back last February: "It seems these people [the defendants] thought they were growing this under some cover of legitimacy from the state."

The DEA agent testifying replies: "Yes." Best it was to keep it short.

Referring to another criminal case, Bevan told the grand jury that, following the Supreme Court decision on the federal lack of a medical necessity defense, that, "the judge excluded any reference to why the plants were being grown … the 'why' that plants are being grown is irrelevant under federal law." Bevan stated that this other defendant tried to raise a medical defense, "and I objected and that objection was sustained. But it was out there. I can't speak for the jurors as to what they figured out, but -."

Realizing he was treading on shaky ground, Bevan interrupted himself to add: "And I would submit to you, not that - and I would tell you don't be persuaded in any sense by - by that example [of the medical defense], other than I'm trying to answer honestly whether this case blazes trails."

Nationwide press coverage, including a stinging editorial condemning the conviction in today's New York Times (2/4/03), would indicate the Rosenthal case's importance.

Seeking to direct matters away from medicine and towards the view that Rosenthal is a common, mercenary drug dealer, Bevan immediately promulgated the notion that "we prosecute growers." And, "most of the growers we have in our inventory [for Bevan's is indeed a business - larger and more powerful and better armed than most, but a business nonetheless] are up in the boondocks, they're in Mendocino, Humboldt County…."

Then, tying Rosenthal to such feral, outlaw grows, Bevan then discussed one of his products: "Humboldt Hash."

Never mind that Rosenthal was growing out of a warehouse in Oakland near City Hall.

Duly convinced, one grand juror helpfully connected the dots: "What's different about this case is that, you know, simply the venue. These people are in the Bay Area; they're not up in Mendocino and Humboldt County."

Another juror demurred: "I mean, it's located on a city street at a business location…."

A (Doomed?) Motion to Dismiss

Transcripts of the grand jury proceeding surfaced when the government felt the need to call Agent Pickette to the stand, thus opening up his testimony, along with Bevan's commentary - or co-testimony - to the defense.

Having obtained it last week, the defense filed a motion dated 1/28/03 to dismiss the grand jury indictment. Failing that, it requested the entire grand jury transcript be made available. It requested a delay in the proceedings, but Judge Breyer indicated that he could rule on the defense motion even after the jury returned its verdict. During the trial the judge emblazoned his view in neon letters writ large across the sky, therefore his ruling might be anticipated. But the defense feels the grand jury proceedings do add to what they consider already ample grounds for appeal.

As to the defense motion to dismiss filed by attorneys Robert V. Eye and William M. Simpich, it states that, "Otherwise, any reasonable prosecutor knew that this grand jury would never indict Mr. Rosenthal," it argued that "the prosecutor led the grand jurors to believe" a number of legal fictions.

Rosenthal's lawyers asserted that the prosecutor, with his talk of leaving plants behind and not shutting clubs down, pretended patients maintained access to their medicine. Such testimony "was designed to lead the jurors to falsely believe that federal law offered a 'shelter' for patients and small caregivers."

As indicated above, the defense asserted that the government seized the resources the Harm Reduction Center used to operate. (Rosenthal had been growing medicine for HRC under the auspices of the City of Oakland.) And the government left the HRC doors open so that squatters moved in. The center was no longer operable.

They also charged that Bevan never indicated to the grand jury that federal law "trumped" state law. As the motion states, "The prosecutor sowed confusion about the role of federal and state laws in order to ensure he got an indictment." Additionally, "His message on state law made it sound like federal and state law were in harmony, and that the Defendant was liable under either theory." Obviously that was not the case under California law.

In addition, Simpich and Eye contended that Bevan "made it sound like the patients were protected." They cite his statements regarding the prosecution of growers and the law against distribution, not possession.

And, they charged, the prosecutor implied that some sort of medical defense would be available to the defendant. (For his part, Agent Pickette was pretty declarative about federal law and the Supreme Court ruling against a federal medical necessity defense.)

What's more, the defense contended that Bevan actually acted as an unsworn witness and that, "Such an action is even greater error when the prosecutor testifies and then remains in the grand jury room as the presenting attorney."

Eye and Simpich's motion added that, whether sworn or unsworn, such testimony is even worse "when the prosecutor-witness misstates the facts - as occurred here with the prosecutor's claim that there was no 'shutdown' of the Harm Reduction Center; the reference that the HRC was 'Rosenthal's club'; and Mr. Bevan's statement that codefendant [Ken] Hayes was acquitted due to [San Francisco District Attorney Terence] Hallinan's testimony and feigning surprise at the use of a 'medical defense.'"

Summing up, they quoted prior case law from a 1998 case (United States v. Siriprechong N.D. Cal. 1998): "that courts have the authority to dismiss an indictment that is the product of a grand jury process so flawed that the grand jury's independence has been infringed." Finally, quoting another case, (United States v. Sigma Intern., Inc. 11th Cir 2001) "the ultimate issue is not the propriety of [the prosecutor's] conduct, but whether that conduct, under the circumstances, abrogated the independence of the grand jury."

In reply, Bevan veritably scoffed at the defense motion, asserting that, lacking manifest misconduct, grand juries are not subject to review by the courts. That is, "the grand jury is an institution separate from the courts, over whose functioning the courts do not preside."

Bevan also stated that rather than testifying, his (lengthy) comments "were given in direct response to grand juror's questions, and were never presented as sworn evidence."

As to any misstatement of fact regarding the HRC's shutdown, Bevan wrote, "The prosecutor's comments were merely an echo of the previous sworn testimony of Agent Pickette. Regarding providing legal advice, Bevan maintained his only obligation was to "be accurate and not deliberately misleading." As to all the back and forth regarding state and federal law, he claimed, "Indeed, the defendant is not alleging that the grand jury was improperly instructed as to federal law." Rather, the contention regards only state law. And he cited one statement that he made and one that Pickette made regarding the supremacy of federal law. The defense would point to several other statements on state law.

Finally, even if he did mess up - and he by no means admits that - Bevan argued that dismissal would be warranted only if, according to case law (United States v. Sears, Roebuck, and Co., 9th Cir. 1983), "prosecutorial misconduct has undermined the grand jury's ability to make an informed and objective evaluation of the evidence presented to it."

Given Judge Breyer's handling of the case so far, hope does not brim to overflowing that he'll dismiss it on these grounds - not when the government has already won conviction. It seems clear Ed Rosenthal must rely on appeal to higher authority.

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Daniel Forbes' (ddanforbes@aol.com) report on state and federal malfeasance to defeat treatment-not-prison ballot initiatives was published by the Institute for Policy Studies. His disclosure of the Clinton Administration's secret multimillion-dollar rewards to the networks led to his testimony before both the Senate and the House. Forbes' drug-policy work is archived at: www.mapinc.org.