Lit_Match

They can't send 'guru of ganja' to jail, but feds will retry case
04-14-07|SF Gate|Bob Egelko

Federal prosecutors brushed off a judge's suggestion that they not retry a prominent marijuana advocate on cultivation charges and said Friday they would press ahead, even though he cannot be sent to prison if he is convicted.

Assistant U.S. Attorney George Bevan made the announcement at a hearing in San Francisco before U.S. District Judge Charles Breyer, who presided over the first trial of 62-year-old Ed Rosenthal of Oakland. When Bevan said last month that the government intended to retry the self-described "guru of ganja," Breyer urged him to reconsider, suggesting that federal resources might be used more productively in prosecutions that result in imprisonment.

Bevan said Friday that prosecutors had reached their decision after a "thorough and careful review'' and that the final word had come from Scott Schools, the interim U.S. attorney in San Francisco. When Breyer asked if Justice Department officials in Washington had been consulted, Bevan said he didn't know.

The retrial, scheduled to begin May 14, will be limited to the cultivation charges of which Rosenthal was convicted in 2003, verdicts that were overturned on appeal last year. Prosecutors have said they would not seek additional imprisonment for Rosenthal, beyond the one day in jail he has already served, if he were convicted again.

Rosenthal was arrested for growing marijuana that he said was intended for medical patients. After he won his appeal on grounds of juror misconduct, prosecutors secured a new federal grand jury indictment in October that included additional charges of tax evasion and moneylaundering related to his marijuana cultivation.

The new charges could have resulted in a prison sentence of 20 years, but Breyer dismissed them last month, saying they had been added vindictively in retaliation for Rosenthal's successful appeal and his public statements disputing the fairness of his trial.

Bevan said Friday that his office would not appeal Breyer's ruling.

After the hearing, defense lawyers criticized the retrial decision. But Rosenthal's response was: Bring it on.

"This isn't a criminal case. This is a political case," said Rosenthal, wearing a shiny green robe embroidered with images of marijuana leaves. "When I win this case, it's saying to the government, 'You have to stop harassing the medical (marijuana) dispensaries.' "

Defense lawyer Shari Greenberger said she would ask Breyer to order the government to reimburse Rosenthal for the time his lawyers spent getting the new charges dismissed. Virginia Resner, president of a group called Green Aid, which is raising money for Rosenthal's defense, said preparation for the new trial has already cost $180,000.

Rosenthal is an authority on marijuana cultivation. His latest book was "Why Marijuana Should Be Legal."

His first trial was the first and most prominent of several federal prosecutions of growers who were providing cannabis under a 1996 state initiative that allowed patients to use the drug with a doctor's approval.

Breyer barred evidence about medical marijuana during the trial, saying it was irrelevant to a prosecution under federal drug laws. After a jury convicted Rosenthal of three counts, however, the judge imposed a token one-day sentence rather than the five years prescribed by federal guidelines. Breyer said Rosenthal had believed he was acting legally because the city of Oakland had designated him as an official in its medical marijuana distribution program.

A federal appeals court overturned the convictions last year, finding misconduct by a juror who consulted a lawyer during deliberations. The court also indicated that it would have rejected prosecutors' appeal of the one-day sentence even if it had upheld the convictions.

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kinghelwig

What happened to double jeopardy,I was to believe we cant be tried for the same crime twice,did they change that,or are they just trampling all over this guys rights because he made them look bad?Enough already,all the wasted time and money,threr's plenty of heroin dealer's out there why dont they spend more wasted time and money on that?The Gov. need's to sit down and do a big fatty,and get back to the reality that they lost the case let it go.

sterbo

A judge may declare a mistrial due to -

The court determining that it lacks jurisdiction over a case.
Evidence being admitted improperly.
Misconduct by a party, juror, or an outside actor, if it prevents due process.
A hung jury which cannot reach a verdict with the required degree of unanimity.

A couple of related articles worth noting -

On the Record: Ed Rosenthal Appeals His Conviction For Cannabis Cultivation

Ann Harrison: Judge Delays Ruling on Mistrial in Medical Pot Case

...

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Buzzby

Double jeopardy doesn't apply because the original conviction was determined to be invalid because of juror misconduct. That makes it as-if the first trial never happened. If Rosenthal had been found not guilty and there was no procedural flaw that would make the trial invalid, then double jeopardy would prevent a second prosecution on the same charge.

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