🚀 go-pugleaf

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> > > > 
> > 
> > snip
> 
> And the judges ruling that Mr Rosenthal's city authorization to grow
> marijuana is not a defense has been argued as an abuse of power - if
> you are arguing that it isn't an abuse of power then why are you so
> adamant that the lower court is wrong?

I'm not.  I actually think Judge Breyer was only doing his job and did
exactly what he thought he should do based on his careful reading of
the law.  I would certainly not have minded if he had let the medical
marijuana evidnce in or if the jurors just refused to convict, but the
real issue here is whether Rosenthal should have been arrested in the
first place.  While I don't know what all decisions Judge Breyer made
throughout this whole process, I didn't see any that stood out as
being just dead wrong.  He did his job.  The higher Court did their
job when they refused to issue a Writ of Mandamus. There are a lot of
grey areas in the law where reasonable minds can differ.

My biggest gripes are that I don't think the federal government should
be prohibiting marijuana anyway.  I think that decision should be left
to the states at least to the extent where their decisions don't
affect other states.  And I think that this is one of those instances
where the feds should have just stayed out of the picture, regardless
of the federal laws against marijuana.  There are plenty of other more
pressing issues for them to focus their attention on.  They could have
just let this experiment run its course. And even if they did feel
like they had to put a stop to the state of California defying their
laws, I think they should have used another method besides nailing Ed
Rosenthal's poor ass to the wall.  That was a shitty way to go about
it.

Of course, this is all just my opinion. 

snip

> > The city did not file a brief in support of the petition, but it
> > appears that they did submit a statement to be attached to the
> > Petition.  On page three (3) of the brief you will note that the
> > petitioner cites a "declaration" made by a city official, Joe DeVries,
> > which apparently confirmed that Rosenthal was deputized and considered
> > a city official.  
> 
> Evidence that in fact the relationship between Mr Rosenthal and the
> city existed.
 
Yes. 

> > It is cited as Exhibit 3, but such exhibit is not
> > included on the page you linked me to.  Exhibit 2, which purports to
> > be a letter from Jeffrey Jones to Ed Rosenthal confirming that he was
> > being made a city official for the purpose of growing marijuana
> > pursuant to their program.  Mr. Jones was with the Oakland Cannabis
> > Buyers Cooperative, 
> 
> And as such not a City official.

Read Ordinance No. 12076 again.  As an agent, employee or director of
a Medical Cannabis Provider Association acting within the scope of his
duties for the association, he was a city official pursuant to Article
1, Section 3 of that ordinance.  The fact that he was acting within
the scope of the authority granted by the city is apparently evidenced
by the letter by a city official attached to the Petition for Writ of
Mandamus.  I have read that the testimony of the Assistant City
Attorney also corroborated this fact although I cannot be certain of
that having not heard her testimony myself or read a transcript of it.

> BUt still - you make several valid points.  I agree, the
> "deputization" existed and the City acknowledged that it indeed
> existed.
> 

I'm glad you see this.  
  
> > So, it's not at all accurate to say that the City of Oakland failed to
> > act on Rosenthal's behalf.  They may not have done enough, but I doubt
> > they felt a need to.
> 
> If you were Rosenthal - how pissed off would you be at the City of
> Oakland?

Truthfully, I'd say Rosenthal should have known what he was getting
himself into.  If I was pissed off at the city, it would be more
because they came up with a scheme that was supposed to shield me from
the feds, but it didn't work. But I do feel sorry for the guy.  He's
going to be sentenced to at least five years and maybe much longer. 
He has a family to worry about.  But most important, he really didn't
do anything that bad.  He certainly didn't do anything worth tossing a
guy inprison for for years and years. And on top of all that, he
probably felt like he was acting within state and local law and at
least within a loophole to the federal law.

> > > > You, on the other hand, insist that he must have been breaking state
> > > > law even though you have absolutely no proof of this.  
> > > 
> > > There is NO state law that I have posted that allows cultivation for
> > > distribution of marijuana in California.  There is a proposition voted
> > > on by Californians that supports the medical use and the state has
> > > abdicated its responsibilities to the local governments regarding how
> > > this is to be implemented.  I never said he was breaking state law - I
> > > pointed out that his federal charges support the facxt that he may
> > > have been exceeding the limits of the City of Oakland ordinance.  I
> > > provided a description of the City's ordinance (and its revision in
> > > 2001) and I provided the specifications of his indictment.
> > 
> > The law does provide that "primary caregivers" can grow and supply
> > marijuana to patients. A "'primary caregiver' means the individual
> > designated by the person exempted under this section who has
> > consistently assumed responsibility for the housing, health, or safety
> > of that person."  As I covered in my other post, "individual" is not
> > necessarily confined being just one person and not an entity or
> > cooperative, or at least it wasn't at the time Ed was busted. 
> > Additionally, the case law at the time suggested that there was
> > nothing to prohibit "primary caregivers" from providing marijuana to
> > more than wone patient.
> 
> Rosenthal was providing plants for others to cultivate - at least that
> was my understanding.

I'm a little unclear on that myself.  I know he was providing plants
and that the fact that most of the clones hadn't rooted yet was one of
the big issues in determining how many plants there were according to
how plants are defined by law. But I am not sure that he wasn't also
providing dried product.  I've heard it both ways in the media.  You
can't believe anything those creeps say.  ;-)
 
> > If you'll really read Oakland's 2001 Medical Cannabis Policy, you'll
> > see that they weren't telling coperatives they could only grow "X"
> > number of plants.  They were limiting the amount they could grow and
> > keep on hand relative to the number of patients they were providing
> > for on a regular basis.  I don't see anything in that document
> > prohibiting Ed Rosenthal from doing what he was doing. He had been
> > given the go ahead by the OCBC in their capacity as officers of the
> > city and his authority to proceed had apparently been confirmed by
> > city officials, including a city attorney.
> 
> The ordinance limits the amount.  

Read it again. The limits are based on the number of patients the
caregiver is providing for. Rosenthal and the Cooperative were acting
as caregiver for an awful lot of patients.
 
> > > > You insist that
> > > > he broke local marijuana ordininces even though you don't know what
> > > > they were at the time, 
> > > 
> > > The link to the ordinance revision provides for that - you should have
> > > bothered to read it.
> > 
> > I think I did a more thorough job of reading it than you did. 
> 
> The ordinance limits the amount. 

Read it again. The limits are based on the number of patients the
caregiver is providing for. Rosenthal and the Cooperative were acting
as caregiver for an awful lot of patients.
 

> > > > and even though no one ever complained that he
> > > > did. 
> > > 
> > > The City obviously didn't care.  
> > 
> > No, in fact it appears they wanted him to grow it.
> 
> They didn't hang their butts out on the media clothesline in his
> support.

That depends on how you define "they."  Like you, I haven't seen the
mayor and all of the other prominent city leaders plastered over the
airwaves either.  But like I said, most respectable folks don't want
to get their hands dirty with this. Some city officials have
apparently stood up for Rosenthal though and we haven't heard the
mayor or anyone else complaining about that.

> > > > You seem to think that your sources, whatever they may be are so
> > > > much more credible than mine. 
> > > 
> > > Actual charges with statute numbers and an actual document from the
> > > City of Oakland PLUS court briefs filed with the appelate court - I
> > > think that beats your National Enquirer snippets - don't you?
> > 
> > Dude, it is apparent that you did not actually read these documents
> > yourself.  If you had read and understood them, you wouldn't be making
> > the argument you are making.
> 
> I agreed - I never argued the merits of Rosenthals case - I just
> thought it would have been nice to have someone actually go through
> the fact pattern.
> 
> I'm glad I was able to drag you (kicking and screaming) through the
> process.  You are now more informed than anyone in the media reporting
> on this, and certainly much more informed than anyone of the jurors
> looking for their 15 minutes of fame.

I am not surprised that the jurors are upset and I am not as cynical
as you about their motivation for getting up in front of America to do
something about it.  This was really a shitty thing for the federal
government to have done. They could have found other ways to stop
California from defying them without nailing Rosenthal to the wall. 
Rosenthal should have known he was taking a big risk, but I suspect
that with all of the air of legality around him he thought the feds
would never go after him. But still, he's facing basically five years
to life in prison over this and he shouldn't do anywhere near that for
this.

I hate to admit this now that I've bungled and half-assed this
argument with you, but I'm a lawyer.  I argue for a living although I
generally pay someone to do most of my writing and have my secretary
do all of my typing. But as a lawyer, I've represented all sorts of
rotten criminals.  The last child molester I represented walked with a
suspended sentence.  He had, allegedly, molested two six year olds, a
boy and a girl.  The file was full of statements from others who told
of him molesting them all of their lives. They told how his actions
had scarred them deeply and they pled with the prosecutor to see that
he went to prison so he could never hurt anyone else.  He had been
jailed in Nevada for six months before for this type of stuff but was
released for lack of evidence.  This sick bastard walks and Rosenthal
goes to prison?  The law is wrong.

> > > > It's okay for you to argue about this
> > > > even though you lack a factual basis for you arguments, 
> > > 
> > > Hey - the charges levied and the ordinance appear to be inconsistent.
> > 
> > Look again, 
> 
> I did - and there is an inconsistency.

There are always inconsistancies, but I believe he was justified in
feeling that he was acting within the City's laws.  So far, you are
the only one who seems to think he did violate the City's laws,
although it seems you are softening your position on this.

> > and while you are at it consider that those whose
> > ordinance it was told him he was acting within the law.  If an agent
> > of the city acting in their official capacity advises someone as to
> > the legality of his actions based on their interpretation of their own
> > laws and he bases his actions on these representations, I would think
> > he could avoid prosecution for his actions provided he only did what
> > the city told him he could do. I am of course not talking about
> > federal law here.
> 
> So the City Attorney is infallible? 

No, but the City Attorney is an offocer of the city and if it is true
that the City Attorney advised Rosenthal that he was acting within the
law then Rosenthal has a very good argument that he was justified in
his actions at least as between the city and him, and in a round about
way between him and the state.

> > > > yet I'm wrong
> > > > for trusting what so many separate and distinct media outlets have
> > > > reported.
> > > 
> > > Brainwashing by the media is your defense?  
> > 
> > I'm not looking at opinions of some idiot journalsts, I'm looking at
> > who they are interviewing and what they are reporting that this person
> > has said.  When I read the same reports by a wide variety of media
> > outlets without hearing a single instance of one of these interview
> > subjects publicly denying statements attributed to them, I feel fairly
> > compfortable accepting that these subject did in fact say what they
> > are reported to have said. I am also listening to what I hear experts
> > like Alan Dershowitz say as I am fairly confident in has knowledge of
> > the law.
> 
> Do you know why the call them "legal opinions"?

Yes.

> > This is just an intersting topic to me, a diversion.  It is not my
> > life's work.  I am not getting paid to do research on it, and time is
> > money to me.  I suppose if it was more important to me I'd do tons of
> > research and unlike you, when I do reasearch something, I spend a good
> > deal of time on it and do it right. I have felt no need to do that in
> > this instance and now that you've ticked me off enough to waste a
> > little more time looking into this, I realize that I was right in my
> > initial decision not to waste time on this and should have stuck to my
> > guns.
> 
> And you would never have learned anything beyond what is spoon fed the
> US public in 15 second sound bites.

And I wouldn't have wasted hours doing research I normally don't have
to do, typing these posts with two fingers so I could argue a point
that shouldn't have had to have been argued.

> > > > Take the log out of your eye before you complain about the splinter in
> > > > mine.
> > > 
> > > Huh?
> > 
> > It's a biblical reference.  I'm calling you a hypocrite. 
> 
> This is how I got into the thread:
> 
> "I'm not sure that what he was doing was in compliance with California
> law.  The evidence the defense wanted to present was that what he was
> doing was concistent with the intent of the passed proposition.  The
> same thing is happening in Nevada - there is no prohibition against
> cultivation and possession but there is a prohibition against
> distribution.  The California case was not a possession case, it was
> the intent to distribute that was at issue.

I think the issue was whether he cultivated marijuana. 

> As far as the federal law is concerned, its legality was upheld by the
> Supreme Court which is substantive evidence that it is a "good" law. 
> The US SC is the final say so on those issues - that's their job and
> whether you agree or disagree with their rulings, only Congress can
> overturn by writing new legislation. 

I don't really see what point you are trying to make.  Yes, I believe
Congress should change the laws, but that isn't really what we are
arguing about here. I argued that Rosenthal still has a good 10th
Amendment argument and possibly other constitutional arguments which
have not been tested under these particular circumstances.  Mostly I
was complaining that the feds shouldn't have taken this action against
Rosenthal in the first place.  But we really didn't get into any of
that because we couldn't get past your contention that Rosenthal was
breaking local laws anyway and didn't have support from the city. 
Since then I've just been trying to prove to you that the newspapers
weren't all lying or mistaken about this.
 
> > > > > I really don't care what happens to Rosenthal - personally, I think he
> > > > > got exactly what he was hoping for - a national platform.  
> > > > 
> > > > Good. Maybe the spirit of fairness, tolerance, freedom and reason will
> > > > eventually prevail.
> > > 
> > > Since when is the judicial system in the US anyone of those? The
> > > Scales of Justice wear's blinders - once you let the "spirit" drive
> > > the decision you risk perceptual bias.  That would really suck.
> > > 
> > > The man violated federal law and was found guilty.  
> > 
> > 
> > You are missing the big picture.
> 
> No - you are overwhelmed by the implications and missed the little
> picture - the part of process that ensures that indeed the legal
> system exacts equity.  If judges ruled on emotion instead of legal
> precedent, and if process is subverted by public opinion of what is
> "good" but illegal...what kind of crap system would that be?

I do not fault Judge Breyer for doing his job.
   
> > > > *I know I said I wasn't going to post anymore on this, but screw it. 
> > > > You make me so mad.  
> > > 
> > > You may want to have the doctor increase your lithium - if your posts
> > > are any indication, I'd say today is a manic day.
> > 
> > I'd have to agree that I am nuts for going on with this complete and
> > utter waste of time.
> 
> Today you are depressed.  Bipolar but probably harmless to others.

I suppose I have been obsessive in all of this.  It just appeared to
me that you were going at this thing with blinders on ignoring the
obvious and that just frustrated me.  I just wanted to grab you and
shake you.

> > > > What's really bothering me about this is that I'm
> > > > a big enough sucker to get dragged into a stupid argument like this. 
> > > > The whole point for me here is that I believe California should be
> > > > able to make and enforce their own medical marijuana laws.  
> > > 
> > > OK - so I think that the Federal government of the US is right in
> > > enforcing its laws and the tradition is Federal beats state.
> > > 
> > > > Whether
> > > > Rosenthal was in compliance with California's vague laws is really
> > > > between California and Rosenthal.  
> > > 
> > > I think it maqy be one explanantion why the City of Oakland is keeping
> > > out of the argument.
> > > 
> > > > The question of whether he may have
> > > > been violating California's law would have been relevant had this been
> > > > allowed as a defense in the federal trial, but it was not.  
> > > 
> > > Like I said - why is the City keeping its official mouth shut?
> > 
> > It's not.  You are just keeping your eyes and ears shut.  
> 
> Yes - I beleive the City did a media duck and cover.  Once the writ
> was denied, that was it.  I'll be interested to see who from the City
> of Oakland takes the heat for screwing Rosenthal.

I don't think this is accurate.  I believe local officials would have
participated during the trial if it had been allowed.

> > And there is
> > something else you should think about.  Not everyone is so hip on
> > medical marijuana.  It's a subject most in politics avoid like the
> > plague. The city leaders as a whole may not feel compelled to get too
> > involved with all of this because many of those in powerful positions
> > may not want to get their hands dirty.  
> 
> Bingo!  Now you're catching on.  The City never got in the business of
> cultivation - they outsourced it - and Rosenthal et al with all good
> intentions got the dirty end of the stick.  Bottom line, the City
> washed its hands of him.

I don't know about the hands washing part.  I don't think they were
allowed to really get involved.  Think about it, in the preliminary
stages of the proceedings those who didn't want to get their hands
dirty stayed away.  We don't know really how much support they would
have given if the judge would have opened the door to testimony about
why Ed was growing the dope. Again, I don't think the judge was
necessarily dead wrong in keeping that testimony out.  I'm sure he
felt he had no choice.

I hope the judge is overturned in part based in the fact that he did
not allow this evidence in though.  I really think it should be a
valid defense that you were acting in accordance with state law in
conjunction with local authorities. The feds should have to attack
these laws that offend them, not so much the people who act in
accordance with these laws. Ed Rosenthal isn't a threat to society who
needs to be in prison. He's no more guilty than the State of
California who allowed him to grow dope. There has to be a better way
for the feds to attack state laws that offend them. Someone smarter
than me and John Ashcroft needs to figure out how to have such laws
declared unconstitutional and compel a state to stop encouraging
people to break the federal law.

Of course I also believe that the feds have overstepped their bounds
in regulating marijuana use when such does not affect interstate
commerce or invoke any other constitutional provisions which empower
the feds to regulate local activities.  But that's another issue.

> > If you've been listening,
> > you've heard some of the voices from the city.  
> 
> Other than the attachments to the writ which of course neither you nor
> I can actually read, has the City Attorney, the city manager, or
> anyone else in an official capcity stoiod up and committed to
> Rosenthals support?  I get CNN and cNBC and the BBC in the UK - I
> don't get the local Oakland news.  I don't see any City official
> making any official statements arguing what Rosenthals attorneys seem
> to be arguing.

I think Dateline NBC has just interviewed some folks.

"East Bay cannabis fight goes prime time: Network television news show
Dateline NBC was in town this week preparing a piece on Ed Rosenthal
of Oakland, who was recently convicted of federal cannabis cultivation
charges even though he was under the protection of state and city laws
protecting medicinal marijuana use.

Among those reportedly interviewed: Oakland City Council President
Ignacio de la Fuente, Alameda County Supervisor Nate Miley, California
Attorney General Bill Lockyer and several jurors who apologized to
Rosenthal after the trial, saying they felt they'd been duped by the
federal government." 
http://www.timesstar.com/Stories/0,1413,125~1486~1177504,00.html

There are lots of stories mentioning this Nate Miley fellow and his
assistant, that DeVries fellow mentioned in the brief. Nate Miley is
now a county official but he worked for the city when all of this went
down. I've seen mentions of the City Attorney as well but I don't
remember if I've seen a direct quote.

> > As the case enters the
> > appeals stage, I strongly suspect you will see a Friend of the Court
> > brief submitted to the appeals courts by the city and maybe even the
> > state.  The issue has just become to big and popular for the
> > politicians to leave alone.
> 
> Great - when you hear about it, post the link.

I think I'm done with this for real this time. I've argued all that
needs to be argued. You can believe that Rosenthal was acting lawfully
under the Oakland ordinance or not.

> > > > If it had
> > > > been allowed as a defense, the court would have had to interpret the
> > > > law pursuant to California's interpretation of it, which was
> > > > apparently very broad, allowing much wiggle room for defining
> > > > "caregivers" and so on.  No matter how you look at it, if California
> > > > had have been worried about Rosenthal's activities, they could have
> > > > shut them down.  It was their business and the feds didn't have to get
> > > > involved.
> > > 
> > > That is your opinion.
> > > 
> > > > The feds could very easily resolve this and diffuse this situation by
> > > > rescheduling marijuana and allowing states to have their own laws on
> > > > it subject to some federal guidelines designed to minimize problems
> > > > with abuse of the system. 
> > > 
> > > The US DEA has never been very good at this, now have they.  The FDA
> > > has a THC approved product - why is that not being used?
> > 
> > It is being used but apparently it is not as effective for many
> > people.  Also, it's expensive.  Some apparently claim it makes them
> > feel uncomfortable whereas regular pot does not. From what I hear, it
> > gets people way higher than smoking a little pot anyway and it's
> > harder for people to regulate dosage such that they get just enough to
> > do the trick but not so much that they feel uncomfortable.
> 
> And from what I hear, it actually went through the drug approval
> process.

So did ________ drug that killed lots of people and deformed lots of
babies prior to being banned in America.
  
> > As for the DEA, they are only good at heavy handed police tactics. 
> > Unfortunately, no matter how good the DEA does, these tactics do very
> > little to solve our nation's drug problem.  But it sure makes DEA guys
> > feel good to make big busts and lock lots of people up.
> 
> I'm not going to argue that the DEA has failed to stop the drug
> problem - but I am curious to know if you actually believe that DEA
> enforcement is totally inneffectual?  In the absence of DEA
> activities, would there be a smaller or bigger "drug problem" in the
> US?

I wouldn't say it's totally ineffectual.  I will say that there is
absolutely no proof that it has done any good whatsoever.  Read this
page: http://books.nap.edu/books/0309072735/html/279.html#pagetop It's
from a book entitled "Informing America's Policy on Illegal Drugs:
What We Don't Know Keeps Hurting Us." This is a study commissioned by
the government and published in 2001.  I linked you to the last page
of the body of the work which spells out their conclusions. Read the
whole thing if you have time.

Although I do believe marijauna should be legal because I am convinced
that it is not as bad as alcohol, I am not for legalizing all drugs. 
I hate drugs with a passion.  I don't smoke dope and I don't do hard
drugs like meth, alcohol, and hydrocodone. I see misery and suffering
drugs like methamphetamine cause in this world.  I deal with drug
addicts on almost a daily basis and am often sickened by what I see. 
But I have to tell you our drug policies in this country are
mean-spirited and counterproductive.  We have to change them.

I don't want to go into this too much in this thread. In fact I really
want this to be my last post here. So let me just say that under our
present system I do not think the DEA or law enforcement in general do
as much good as they do harm to our society when it comes to their
attempts at controlling our drug problem.  I think we need to look to
what the rest of the civilized world is experimenting with when it
comes to drug policy.  I think we need to experiment.  That's one of
the reasons why I favor states trying their own experiments, so that
we can all learn from their successes and failures. I want us to move
toward a much less punitive system that certainly still has a place
for law enforcement but a much smaller place than it does today. 
Prison should be for real criminals and real criminals should be
locked up for a long, long time.  There should be no felony charges
laid for simple possession of a personal amount of any drug.

I don't want to open up a whole new can of worms with you though.  All
of this internet arguing is causing me to neglect my work.

> > > > They could allow widespread clinical trial
> > > > experimentation with medical marijuana which would inevitably lead to
> > > > a better understanding of its benefits and its dangers.  Instead they
> > > > attempt to surpress anything which may seem remotely "pro marijuana"
> > > > because they have a great fear that they will somehow lose control.
> > > > All they have done here is make a martyr out of Ed Rosenthal and
> > > > further damage any credibility they may have had when it comes to
> > > > their "message" on drugs.
> > > 
> > > Yeh - well that still doesn't address the question - where was the
> > > City of Oakland during the appelate process?

They were there when the Petition for Writ of Mandamus was filed.  How
many city officials must get involved before you consider them
involved?  So what if they didn't pay their lawyers to draft a brief. 
A city official submitted a Declaration on Rosenthal's behalf.

> > 
> > Unless the exhibits allegedly attached to the Petition for Writ of
> > Mandamus were falsified and/or did not exist, and unless the attorney
> > was lying to the higher court about the Assistant City Attorney's
> > testimony, I'd say the city has been involved. I think you are just to
> > stubborn to let yourself see this.
> 
> So the answer is - the filings included documentation that the
> ordinance existed, that the city endorsed Mr Rosenthals activities,
> and that they provided Mr Rosenthal with assurances that he was immune
> from prosecution.
> 
> Why didn't you link this originally?  Why did I have to show you where
> the data are? I asked the question - and you spout off about his
> defense and how the law is wrong and.....stuff like this:

I didn't want to dig it up.  I had seen interviews of city officials
and so on and I believed them.  I didn't want to go through the whole
process to prove it to you because you appear to be the only one in
the world who thinks Rosenthal didn't have city approval for what he
was doing.  I have so many other things I need to be doing than
arguing with stubborn people who can't see the obvious and move on.
The only reason I continued with this is because you seem like a an
intelligent person who truly didn't believe what the papers were
saying and you were going to great lengths to prove your point.  You
just happened to be wrong, and I was both frustrated by your
stubbornness and feeling like it would be wrong to let a bright guy go
on harboring a misconception of the reality of this case.

snip 

> 
> Done?  I am.

Me too.