THE BLOG

Stoner Walks: Good News for the Guru of Ganja

04/27/2006 01:59 pm ET | Updated May 25, 2011

Ed Rosenthal, the Guru of Ganja, has good reason to fear the feds. It was the Feds after all, pursuing a strangely anti-federalist agenda, that slapped the handcuffs on Mr. Rosenthal and charged him with growing marijuana, and it was the feds that brought and won a case in the United States Supreme Court which affirmed their right to charge and prosecute weed growers and users in states that have passed laws or constitutional ammedments allowing the cultivation and use of marijuana for medical purposes. And, of course it was the feds that tried and convicted Rosenthal back in 2003 and sought to have him imprisoned for several years.

Mercifully, the federal judiciary, and more immediately, the Ninth Circuit Court of Appeals have, at least for now, put a stop to that .

Over the years, about two thirds of the states have passed pro-pot legislation. And while much of it falls short of shielding sick pot-smoking patients from arrest, Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington actually allow the cultivation and use of medical marijuana. This groundswell of support, however has not dissuaded federal law enforcement from aggressively pursuing growers and even sick users of medical marijuana. In fact, according to a government report on the subject, the DEA has conducted nearly two dozen raids on medical marijuana distribution centers around the country.

Of course, among pot proponents, Ed Rosenthal stands pretty much alone. The author of books like The Big Book of Bud and Don't get Busted, Rosenthal also gleefully penned a column for High Times magazine, titled, appropriately, "Ask Ed." Given all this, it is no surprise than when the City of Oakland sought to set up a system for growing and distributing medical marijuana, their hydroponic go-to guy was -- you guessed it -- Ed Rosenthal. No wonder the feds wanted to throw him in prison.

Still, the depth of the intellectual dishonesty in Rosenthal's case provides an important clue into just how terrifying the ingestion of the cannabis plant is to America's law and order conservatives: Scary enough to waive traditional federalist concerns and overrule states in their sovereign decisions; scary enough to co-opt and politicize the generally nonpartisan Food and Drug Administration which recently issued a report, condemned roundly by scientists, which concluded that marijuana has no legitimate medical uses; and scary enough to build the kind of draconian prosecution machine that would make normal dyed in the wool conservatives queasy about the lumbering edifice of big government.

The fact of the matter is that when he was arrested, Ed Rosenthal was openly growing medical marijuana for the city of Oakland in order to distribute it under California's medical marijuana law. The problem was, neither Rosenthal nor his lawyers were allowed to explain this to the jury. Prosecutors successfully argued that growing medical marijuana under to a state law wasn't a defense to a federal prosecution and that even making that case to a jury was essentially seeking jury nullification. The result: a conviction.

If there was a hero in this tale, it is undoubtedly Federal District Judge Charles Breyer (The brother of Supreme Court swing vote Stephen) who, although he prevented Rosenthal from presenting his defense (and hereby assured his conviction), exercised his descretion and opted to sentence Rosenthal to a single day in jail. Breyer found that Rosenthal reasonably believed he was immune from prosecution thanks to his agreement with city officials.

Not surprisingly, both sides appealed. The prosecution, desperate to incarcerate Rosenthal, sought a two-year prison sentence (they'd originally asked for more than six) Rosenthal, on the other hand wanted the whole case thrown out.

This week, almost three years after his trial, a three-judge panel of the Ninth Circuit overturned Rosenthal's conviction. Sadly, they didn't find that the prosecution was barred by the state laws (the Supreme Court has already overruled that argument) nor did they do the more courageous thing and reverse because of the way Rosenthal had been prevented from presenting his defense. Instead the court found a narrow procedural defect.

In effect the ruling sends the ball back into the prosecutor's court. Thus far there has been no decision on whether or not to retry Rosenthal. But one thing is certain, if the case ever does get retried, the government will once again attempt to insure that Rosenthal is prevented from presenting a defense. Despite their constant rhetoric about a search for truth, the truth of the Ed Rosenthal case -- that he was legitimately growing medical marijuana pursuant to a formal arrangement with the government of the city of Oakland -- will never get before a jury. Instead, overzealous prosecutors in their frenzied fealty to unpopular drug laws will once again sacrifice truth on the altar of reefer madness.