The Trial Where the Jurors Apologized: Ed Rosenthal vs. the Federal Government

A federal jury in San Francisco convicted Ed Rosenthal on January 31, 2003. Within days, several of those jurors stood outside the courthouse and publicly asked to take it back.

One of them said she felt she had made the biggest mistake of her life. They had convicted a man, she said, who was not a criminal.

This guide covers what the jury was not allowed to hear, why they turned on their own verdict, the one-day sentence that followed, and the appeal that overturned the conviction for a reason almost nobody reports correctly.

Who he was, and what he was doing

Ed Rosenthal had written more than a dozen books on cannabis cultivation and policy, wrote the Ask Ed column in High Times, and was known across the industry as the Guru of Ganja.

In 1998 Oakland passed an ordinance to ensure access to medical cannabis under California's Compassionate Use Act, and designated the Oakland Cannabis Buyers' Cooperative as an official provider association. The cooperative's executive director then designated Rosenthal as its agent, in a letter dated September 4, 1998 telling him he was a duly authorized officer of the City of Oakland and immune from federal liability.

That shorthand, that he was deputized by Oakland, is not quite right and the detail matters. The city designated the cooperative. The cooperative designated him.

He was arrested on February 12, 2002 and charged with manufacturing marijuana, conspiracy to manufacture, and maintaining a place for manufacture. He was charged with conspiring to cultivate over a hundred plants. At trial a DEA agent documented more than three thousand plants and cuttings seized from an Oakland warehouse.

What the jury was never told

Here is the fact the whole case turns on. The jury was not permitted to hear that any of it was medical, or that a city had authorized it.

Judge Charles Breyer granted the government's motions barring a medical marijuana defense, any argument aimed at jury nullification, and an entrapment-by-estoppel defense. From the bench he put it plainly: the purpose for which the marijuana was grown is not a defense and is irrelevant.

His instruction to the jury was that they could not substitute their own sense of justice for their duty to follow the law. In his written ruling he went further, holding that juries have no right to nullify even though they have the factual power to do it.

This was not a rogue judge. Two years earlier the Supreme Court had held in a case brought against the same Oakland cooperative that there is no medical necessity exception to the federal Controlled Substances Act. Asked whether such an exception existed, the Court's answer was blunt: "We hold that there is not."

So the jurors sat through a two-week trial about a man growing marijuana in a warehouse, with the entire context surgically removed.

The revolt

They convicted him on all three counts. Then people outside the courtroom told them what the trial had been about.

Juror Marney Craig put it bluntly: "I feel like I made the biggest mistake in my life. We convicted a man who is not a criminal."

The jury foreman, Charles Sackett, said he would have liked the opportunity to decide with all the evidence. Juror Pamela Klarkowski said she was appalled at having convicted without knowing the facts. Another called it disheartening and shameful.

They held a press conference on the courthouse steps in the days after the verdict. San Francisco's district attorney and two city supervisors turned up to applaud them.

Accounts differ on how many jurors joined the revolt, ranging from four to seven depending on which report you read. At least five is safe. What is not in dispute is that it happened at all, which is close to unheard of in a federal criminal case.

One day

Rosenthal faced a mandatory minimum of five years. Prosecutors asked for six and a half. On June 4, 2003 Breyer sentenced him to one day, already served, plus three years of supervised release and a fine of $1,300. The judge cited the extraordinary circumstances of the case and the finding that Rosenthal had not believed he was breaking federal law.

That is a federal judge applying a statute he had just enforced to the letter, then declining to impose any part of the punishment it was designed to deliver.

The unexamined day is a wasted opportunity. Reflect on what you did, what you learned, and how you can improve.

John Dewey

The appeal, and what it did not decide

The Ninth Circuit reversed the conviction and ordered a new trial in 2006. This is the part that gets reported wrong almost every time.

It had nothing to do with medical cannabis. During deliberations, a juror had phoned an attorney friend to ask whether she had to follow the judge's instructions or had any leeway for independent thought. The lawyer told her she definitely had to follow them, that there was nothing else she could do, and that she could get into trouble if she tried.

The court held that this outside communication was an improper influence on that juror's decision to acquit or convict, found a reasonable possibility of prejudice, and ordered a new trial.

On everything else, the appeals court sided with the trial judge, stating that it agreed with the district court's written and oral analysis of those issues and adopted its reasoning in whole. The exclusion of the medical defense was affirmed, not overturned. It also rejected his immunity claim, holding he was not duly authorized because state law does not allow cultivation by anyone other than a patient or their primary caregiver.

The conviction fell on a phone call. The principle survived intact.

There is one more detail, and it is the sharpest thing in the story. The juror who made that phone call was Marney Craig, the same juror who stood on the courthouse steps and apologized.

Afterwards

Prosecutors re-indicted him in October 2006 and added money laundering and tax charges. A judge dismissed the added counts as vindictive prosecution, finding they existed to punish him for winning his appeal.

The retrial ended on May 30, 2007 with conviction on three felony counts, acquittal on one, and a hung jury on another that prosecutors then dropped. Breyer had announced beforehand that he would not change the original sentence, and he did not. One day, again, already served. Rosenthal said afterward that the jury had again been denied the information it needed, and vowed to appeal.

What the case was really about

The context is easy to lose two decades on, so here is a state official describing it at the time.

In September 2002, California's attorney general said of the federal raids that a medicinal marijuana provider such as the Santa Cruz collective represents little danger to the public, and that the DEA's strategic policy is to conduct these raids as punitive expeditions whether or not a crime can be successfully prosecuted. He noted raids involving as few as six plants where no charges were ever filed, and that the targeted cooperatives were operating in compliance with state law.

That is the sitting law enforcement officer of the largest state in the country, on the record, describing federal drug enforcement as theater.

Three years after Rosenthal's conviction, the Supreme Court confirmed in Gonzales v. Raich that federal power reached even homegrown cannabis grown and consumed entirely within one state. The law Rosenthal was convicted under was not a technicality. It was the whole architecture, and it held.

Why a seed company tells this story

We sell genetics, and genetics is the part of this plant that has always traveled when nothing else could.

Rosenthal's real offense, in federal terms, was possessing finished plants at scale. The legal distinction that lets a catalog like ours exist is that seeds are dormant material with no meaningful cannabinoid content, which is a different thing in law from a warehouse of flowering plants. Every part of this industry that operates in the open now does so inside distinctions that were drawn in courtrooms like his, usually by people who lost.

The other thing worth saying is that home growing is what these cases were always defending. Not dispensaries, not brands. The right of a person to produce their own supply without a warehouse, an employee list or a lease that makes them a target.

Super Boof is about as easy as that gets, a balanced hybrid from Black Cherry Punch and Tropicana Cookies at 32% THC, finishing in 56 to 63 days at 100 to 120 cm indoors, grape and orange with a relaxed but clear effect. Cherry Poppers is a 60% sativa from Lemon Kush crossed with Cherry Z at 31%, 60 to 65 days, cherry and citrus candy, calm and talkative.

Four decades of breeding has taught us that the plant was never the controversial part. The people around it were.

The short version

Ed Rosenthal was convicted in federal court in 2003 after a judge barred the jury from hearing that his cultivation was medical and city-authorized, following a 2001 Supreme Court ruling that there is no medical necessity defense.

Several jurors publicly repudiated their own verdict on the courthouse steps. He was sentenced to one day, already served, against a five-year mandatory minimum.

The Ninth Circuit overturned the conviction in 2006 on juror misconduct, an outside phone call, while expressly affirming the exclusion of the medical defense. He was reconvicted in 2007 and again served no additional time.

Barney's Farm has been developing premium cannabis genetics since the 1980s, with over 40 Cannabis Cup wins. Explore our full seed catalog and find strains bred for every climate and skill level.