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Clash on Medical Marijuana Puts a Grower in U.S. Court

Jan. 20, 2003
By Dean E. Murphy
Akland, Calif.

As a marijuana celebrity, Ed Rosenthal has been on a career roll. The author of a dozen cannabis self-help books and a magazine advice column, "Ask Ed," Mr. Rosenthal is the pothead's answer to Ann Landers, Judge Judy, Martha Stewart and the Burpee Garden Wizard all in one.

Can't get rid of the powdery mildew on your cannabis seedling? Try a 20 percent skim-milk solution. The feds got you in court on charges of cultivation? Challenge their crop yield estimates. Want a high without the harmful tar? Use a pipe that vaporizes it.

Mr. Rosenthal's renown has taken him to the Senate, where he testified about marijuana sentencing laws, and to a dozen foreign countries, where he worked as a consultant to hemp and marijuana growers. Throughout it all, he has carried on with impunity.

Until now.

On Tuesday, Mr. Rosenthal goes on trial in federal court in San Francisco on charges of marijuana cultivation and conspiracy. The charges stem from a business he ran growing marijuana to be sold for medicinal uses under the auspices of the City of Oakland's medical marijuana ordinance, one of many such municipal statutes in California.

If convicted on all counts, Mr. Rosenthal, who is 58, faces a minimum sentence of 10 years in prison; the conspiracy charge carries a possible life sentence.

The trial has riled his many fans in the marijuana community, but its implications are far broader. At its core, Mr. Rosenthal's prosecution exposes a deepening rift between the State of California and the Bush administration over the use of marijuana for medicinal purposes, with no middle ground for compromise in sight.

On one side, federal law enforcement officials view Mr. Rosenthal's arrest and possible conviction as a trophy in the stepped-up war on drugs.

"There shouldn't be any doubt about our determination to enforce the laws of the United States," said Special Agent Richard Meyer, a spokesman for the federal Drug Enforcement Administration in San Francisco. "Marijuana is illegal regardless of the intended use, regardless of the person cultivating it and regardless of where it originated."

On the other side, some state and local officials regard Mr. Rosenthal's prosecution as an effort by the federal government to subvert the 1996 statewide voters' initiative, known as Proposition 215, that made marijuana legal for medicinal purposes. Since that initiative passed in California, eight other states have approved similar laws.

"I am just speechless," said Nathan A. Miley, an Alameda County supervisor who helped write the ordinance in Oakland when he was a councilman. "What we were attempting to do through the city was put together as tight a medical practice as possible. Ed was just part of that whole effort."

A handful of court cases have failed to defuse the federal-state tensions. In the most significant ruling, the United States Supreme Court decided in 2001 that under federal law "medical necessity is not a defense to manufacturing and distributing marijuana."

But the ruling did not address Proposition 215 and whether it violated federal law. Moreover, it involved an organization, not an individual, and it arose from civil litigation, not a criminal case. And rulings by other courts since then have offered some protections.

Last July, the California Supreme Court ruled that Proposition 215 granted medical users of marijuana "limited immunity from prosecution" under state law. In October, a federal appeals court in San Francisco decided that the federal government may not revoke the licenses of doctors who recommend marijuana to their patients.

"This is a huge conflict," said Hallye Jordan, a spokeswoman for Attorney General Bill Lockyer, California's top prosecutor and a supporter of the state statute. "State law legalizes medical marijuana and federal law makes marijuana illegal. Period."

In a letter to Asa Hutchinson, the administrator of the federal drug agency, Mr. Lockyer characterized a flurry of federal raids on medicinal marijuana providers last fall as "wasteful, unwise and surprisingly insensitive." In pointing a finger directly at the Bush administration, Mr. Lockyer's office reported that federal efforts against "authorized California cooperatives" began only in 2001.

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