BRIEFS AND MOTIONS FILED TO DATE

Motion for a New Trial. Five reasons for a new trial were presented to the trial judge and rejected: (1) that the court erred in instructing the jury not to consider its "sense of justice" in deciding the case; (2) that the court improperly excluded 19 potential jurors because they were sympathetic to the issue of medical marijuana; (3) that the court should have allowed the defense to argue "entrapment by estoppel" at trial; (4) that the prosecutor mislead the grand jury which indicted Rosenthal; and (5) that two of the jurors received "extra-judicial" information which unfairly influenced their decision. Read the brief here (requires PDF plug-in).

Petition for Writ of Mandamus. Because the trial judge not only denied all of the defense motions but refused to allow the defense to make mention at trial of the Oakland city ordinance on medical marijuana, the federal immunity statute, Mr. Rosenthal's status as an officer of the city, or any of the other reasons for Mr. Rosenthal's conduct, effectively leaving him without a defense, on Thursday, Jan. 17, his attorneys asked the Ninth Circuit Court of Appeals to reverse the trial judge pretrial and allow them to present their defense. The petition was denied on Friday, Jan. 18. Read the petition here (requires PDF plug-in).

Federal Jurisdiction. Since the 11th Amendment to the Constitution protects the rights of the states and the Commerce act does not apply to this case because there was no interstate commerce, the defense believes the federal government has no jurisdiction over the matter. Read the brief here (requires PDF plug-in).

Immunity. The defense believes that because Mr. Rosenthal was a duly deputized officer of the City of Oakland assisting in the implementation of the city's ordinance establishing a medical marijuana program, Mr. Rosenthal had official immunity from prosecution under USC Section 885(d), which states "no civil or criminal liability shall be imposed ... upon any duly authorized officer of any State, territory, political subdivision thereof ... who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances." Read the brief here (requires PDF plug-in).

Due Process. Assuming the City of Oakland was in error in its reading of federal law when it deputized Mr. Roseenthal, he had nonetheless reasonably relied upon the advice of city officials and the city attorney that he had immunity from federal prosecution, so for the government to prosecute him now because of their error, amounts to entrapment and a due process violation. Read the brief here (requires PDF plug-in).

Selective Prosecution. Since no other similarly situated providers of medical marijuana are being prosecuted by the federal government, the defense alleges that Mr. Rosenthal was targeted for prosecution because of his success as an author and activist, that the exercise of his first amendment rights is what brought him to the government's attention and is what the government seeks to curtail. They do not believe it a coincidence that Mr. Rosenthal's arrest came the morning of the day DEA chief Asa Hutchison arrived in San Francisco to give a speech to the Commonwealth Club. Read the brief here (requires PDF plug-in).

Bad Search Warrant Affidavit. The defense has challenged the search warrant affidavit that lead to the ransacking of Mr. Rosenthal's warehouse on the grounds that the DEA agent could not have detected the smell of marijuana, that the informants cited were unreliable, that the electricity usage was not shown to be unusual, that the surveillance showed no criminal activity, that the phone traffic cited was not quantified or identified as to content, that, in short, there was an insufficient showing of probable cause. Read the brief here (requires PDF plug-in).