Gag Order Fight Draws First-Amendment Expert to Rosenthal Defense

Wednesday, January 22 -- Fear of frontpage newspaper articles, radio news interviews and television reports "contaminating the jury," prompted Assistant U.S. Attorney George Bevan to ask for a gag order on Ed Rosenthal, his attorneys and his family, forbidding any of them to speak to the press until the conclusion of Mr. Rosenthal's trial.

U.S. District Judge Charles Breyer said he had never before imposed such an order, but observed that the pervasive media attention may be contributing to the three days of demonstrations outside the federal courthouse. He then asked defense counsel to get an agreement from Mr. Rosenthal not to speak to the press.

Judge Breyer then struck an ominous note, pointing out that he had a wide range of possible sentences available to him in the event of a conviction, and that he thought it appropriate to consider the defendant's conduct during the course of the trial in determining what that sentence should be. If convicted of all counts, Mr. Rosenthal faces penalties of anywhere from ten years to life imprisonment, as well as asset forfeiture and up to ,500,000 in fines.

The defense will respond to the judge's request in court tomorrow, but given Mr. Rosenthal's more than 30 years of First-Amendment activism as a writer and publisher, it is highly unlikely that he will muzzle himself. Failing a voluntary agreement from him, the prosecution is to present to the judge a written sample of the sort of order they want him to impose.

Threat of the gag order has attracted the attention of many newspapers. The San Francisco Chronicle's First-Amendment attorney will be in court tomorrow, along with Jim Wheaton, senior counsel to the First Amendment Project and a media law instructor at Stanford University, who will be there to advise the defense. Consideration of the gag order will be at 8:00 a.m., before the jury is brought into court at 8:30.

In today's proceeding, the defense returned to cross examining Special Agent Daniel Tuey of the Drug Enforcement Administration about the seizure of evidence from the Oakland facility where the government contends Mr, Rosenthal was engaged in growing marijuana plants for distribution to local marijuana dispensaries. At issue was what evidence the government could present as to the exact number of plants present, since both of the two most serious charges -- conspiracy to cultivate more than 1,000 marijuana plants and actual cultivation of more than 100 -- hinge on quantity. Agent Tuey conceded under questioning that not only did the government destroy substantial amounts of the evidence seized, but that they had left behind several large trash bags full of leaf cuttings. He was also unable to identify the number of plants, rooted or otherwise, pictured in the government's still photos.

Under further questioning from prosecutor Beven, the agent claimed that the other two videotapes made during the raid showed each and every plant with roots, in such a way that they might be counted, but the jury has yet to see that footage, though they were shown video of a walk-through of the grow facility.

DEA Special Agent Anthony Levey was then brought in by the prosecution to testify as to the mature "mother" plants he'd counted during the search. Notes he had made on the number present in each bed of plants showed at least one counting discrepancy -- a number crossed out and another entered -- which he conceded was the result of error, saying some of the beds had been counted more than once because he and another agent had disagreed as to the number of plants present. He testified further that he did not know if he had ever counted such plants before -- he thought maybe he had -- but he had certainly not done so since. He could not identify any of the dried plant material entered into evidence as being plants he had counted or cut, nor could he provide or identify any photos showing how many plants were in the room he had been responsible for counting.

Trial resumes tomorrow, Thursday, January 23, at 8:00 a.m. in U.S. District Court, Courtroom of Judge Charles Breyer, 19th Floor, 450 Golden Gate Avenue, San Francisco.