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The U.S. attorney’s office Thursday asserted that recent support for medical marijuana is actually an attempt to taint a high-profile marijuana prosecution and asked a federal judge to slap a gag order on the case. “I just think with the billboards, the number of interviews, these people in front of the building with their mouths taped. � I think there has been an organized attempt to influence the jury,” Assistant U.S. Attorney George Bevan Jr. said. After previously suggesting he would entertain a gag order, U.S. District Judge Charles Breyer refused to issue one. He has repeatedly expressed the desire to insulate the jury from outside influence in the prosecution of marijuana guru Ed Rosenthal, who allegedly grew marijuana for the HARM Reduction Center, a medical marijuana dispensary. If this were a death penalty case, Breyer said, “Would I go around and order everyone not to talk about the death penalty? No. Of course I wouldn’t. “I am simply hopeful that the jurors will follow the law with respect to anything they may see or hear.” But Breyer did read the Rules of Professional Conduct to a defense lawyer involved in the case, Oakland solo William Simpich. Simpich, the second chair in the defense of Rosenthal, was quoted in Wednesday’s San Francisco Examiner as saying, “They’ve got no rooted plants. They’ve got nothing.” Plants without roots, known as “cuttings,” are not counted for sentencing purposes. After hearing Simpich admit that he made the statement, Breyer literally read him the rule book. The government is about “an hour and a half” from resting its case, Bevan told the judge. The defense will make its opening statement at that time and the case should go to the jury next week. The billboards to which Bevan referred are part of a pro-medical marijuana media campaign that began earlier this week. Using space donated by Clear Channel Communications Inc., the ads depict an 8-year-old girl whose father is serving time in federal prison for growing marijuana that he said was for medical purposes. Breyer’s refusal to grant the government’s gag order was one of the few times he sided with the defense. He has repeatedly questioned their cross-examinations, chided them for press interviews and scolded them — in one instance for filing their proposed jury instructions late. He has also been upset with Rosenthal himself, and reminded him that a defendant’s conduct during trial could be a factor in sentencing if he were to be found guilty. Rosenthal has said he does not think Breyer has been impartial during the trial. Nevertheless, Breyer declined to gag him. The San Francisco Chronicle sent a lawyer to argue against the proposal, but her presence proved to be unnecessary — Breyer had made up his mind by the time the issue was brought up. Rosenthal was arrested in February 2002 after one of a series of federal government raids on medical marijuana dispensaries in California. Breyer has barred a defense based on California’s Proposition 215, the state’s medical marijuana initiative. He ruled that federal law supersedes state law.

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