Ed Rosenthal's Time in Advance

Federal prosecutors are proceeding with a second marijuana cultivation trial of California medical pot grower Ed Rosenthal, even though they know there's no chance he will serve any time. The first time around, U.S. District Judge Charles Breyer gave Rosenthal a one-day, time-served sentence after concluding that the Guru of Ganja, who grew pot for patients in cooperation with the city of Oakland, believed he was acting within the law. The appeals court overturned that conviction based on juror misconduct but also gave its blessing to Breyer's leniency. The U.S. Attorney's Office tried to get around that problem by tacking on money laundering and tax fraud counts, but Breyer dismissed those charges after Rosenthal argued that they constituted vindictive prosecution, retaliation for his successful challenge of his conviction and his outspokenness in criticizing the government's handling of the case. But how else can we understand U.S. Attorney Scott Schools' decision to reject Breyers' recommendation and drag Rosenthal through a second trial on charges for which he has already received his punishment?

Comments

[Warren]

Fucking eh! Is there anyone who's served in the DOJ in the past six years that doesn't deserve to be behind bars?

[Dave W.]

Fucking eh! Is there anyone who's served in the DOJ in the past six years that doesn't deserve to be behind bars?

I can think of 8.

[I. Self. Divine.]

Don't we have a rule against this somewhere? Double jeopardy or some non-sense like that?

[Chuck]

And these are the prosecutors who didn't get fired. Can we just send Gonzalez to Myanmar where he belongs?

[David]

I wonder how much money and how many man-hours are being wasted on this prosecution?

[D.A. Ridgely]

I.S.D.

No. It was Rosenthal who appealed the original conviction and the reversal therefore would ordinarily permit him to be placed in jeopardy again. In fact, the government cross-appealed Judge Breyer's original sentence on grounds that it was so well below the minimum sentencing guidelines, but the 9th Circuit dismissed the cross-appeal as moot given its holding that the conviction was tainted by one juror having discussed the case with an attorney.

Mr. Sullum correctly phrases the situation, as others in the media and blogosphere have not, in that Rosenthal does technically face the legal possibility of a stiffer sentence following a second conviction; however, the odds are negligible in that the Court of Appeals has already signaled its unwillingness to upset the original sentence and Rosenthal will be tried again before the same judge.

Realistically, the only jeopardy Rosenthal thus faces is being saddled with a felony conviction, a classic example of the U.S. Attorney's office being what the British would call "bloody minded" and, obviously, oblivious to the inanity of this second prosecution.

[jgray]

I.Self.Divine

'double jeopardy' only applies if you
are convicted i.e. (w/ exceptions) you can't be prosecuted/punished again for a crime you were already convicted/punished for.

[jgray]

dammit what DAR said 1 second b4 i posted

[Brian Sorgatz]

I had never heard of prosecutor Scott Stool Tool Fool Schools until now, and I already hate him.

[D.A. Ridgely]

Sorry, jgray, I'll try to type slower next time.

A shorter version is that an appealed conviction is not a final judgment. (Note: ordinarily, an acquittal may not be appealed by the prosecution and double jeopardy therefore attaches, but Rosenthal was convicted the first time around and it was he who chose to appeal.)

[I. Self. Divine.]

Thanks D.A.R., Makes much more sense now, although my better understanding does little to negate how fucking pissed this makes me.

[Kwix]

Would a felony conviction affect Mr. Rosenthal's ability to grow MMJ under California law? I admit, I am not up to snuff on CA law, but if it would affect his legal ability, I imagine it would allow the Feds to ride the CA police into monitoring and busting him the next time he touches cannabis without a "provider" clause to back him up.

[NoStar]

We have a candidate for the Nifong Prosecutorial Excellence Award.

[ChicagoTom]

'double jeopardy' only applies if you
are convicted

or Acquited -- just for the record.

If you are acquitted you can not be tried for that same crime again -- even if new evidence turns up that could have convicted you first time around/

[NoStar]

If you are acquitted you can not be tried for that same crime again -- even if new evidence turns up that could have convicted you first time around

Tom,
They can almost always find another law that was broken (e.g. state, local, or federal) and prosecute.

[Warren]

Dave W.
Maybe a few of those, certainly not all. John McKay for instance was pushing for the extradition of Marc Emery (Canadian Marijuana seed broker) before he was dismissed.

The whole department is rotten and hasn't done anything in the past eight years other than impose their will upon otherwise peaceful citizens. (Med MJ, Dr. assisted suicide, Internet gambling, porn...)

[ktc2]

But Warren, those ARE the PRIORITIES!

LOL.

Didn't Gonzalez admit porn (as in consenting adult normal) would be his #1 priority as AG?

He should have been removed immediately. Unfortunately, that's what the fundies want, and they were W's biggest supporters. At this point they're pretty much his only supporters, and even they are becoming disenchanted, though far too slowly.

[ktc2]

The entire "Justice Department" needs to be renamed.

It's a mockery to use the word justice to describe what they do.

[crimethink]

Just change it to the Ministry of Love and be done with it.

[Doctor Duck]

double jeopardy' only applies if you
are convicted

or Acquitted -- just for the record.

Neither one is required for jeopardy to attach. Circumstances vary, but in general if the prosecution drops the charges after court proceedings have begun, it may not reinstate them.

[ktc2]

More like Department of Bible Enforcement.

[TallDave]

Good old Ed. Read a lot of his stuff in college.

The robe was hilarious.

[TallDave]

Oh, and this just goes to show Nifong's behavior was not unusual or exceptional. Prosecutors generally seem to suffer from that famous psychological syndrome where people in authority immediately start abusing that authority -- which we should expect, really.