Important Medical Cannabis Case Tests State Law on Collectives

On April 3, the medical marijuana jury trial of Luke Strauss & Joe Maligno ended in a hung jury 7-5 in favor of defendants, two Mendocino County members of a larger patient collective, who were growing legally for a storefront dispensary in Southern California.

The case began Oct '07 when Strauss was profiled by a Sonoma County Sheriff's Deputy while driving south on 101 near Cloverdale, according to defense attorneys. He was stopped on a ruse with five pounds of doctor-approved cannabis in the vehicle. During the traffic stop, Sonoma County Sheriff's Deputy Andy Cash and a DEA agent searched the truck and found evidence which led to the search of their home in Redwood Valley. Their home was raided approximately six hours later by a small battalion of sheriff's deputies and two DEA agents with guns drawn. During the raid the agents discovered 300-400 pounds of bud, an indoor garden in the early flowering stage and a recently harvested greenhouse. The cannabis was destined for their patients at the West Hollywood Center for Compassionate Healing, the collective that they were growing for.

During the trial, Attorneys J. David Nick & Edie Lerman proved to the jury that Strauss and Maligno were in compliance with state law on collectives. The evidence presented showed that the president of their West Hollywood collective had won the support of local government officials. It also revealed that approximately $1.4 million passed through the West Hollywood collective's bank accounts in order to cover overhead expenses and the cost of cultivating the cannabis. The prosecution, on the other hand, had no evidence that they were operating illegally. They simply relied on their accusation that it was just "too much marijuana", apparently hoping that bias against marijuana would enable them to prevail.

According to Edie Lerman, "The law is clear. It allows for medical marijuana patients to associate and collectively cultivate, to get paid for their labor and services and reimbursed for expenses. But the Mendocino County prosecutor refuses to recognize the law on collectives and cooperatives. We think the jury will."

Since there are no limits on the number of members allowed within each collective or cooperative, there is likewise no limit on the number of pounds of medicine legally allowed, as long as the patients are legitimately protected by a doctor's approval.

In the course of cross-examination by the defense of Mendocino County Sheriff's Deputy Bruce Smith, head of COMMET, and Sonoma County Sheriff's Deputy Andy Cash, Smith stated that his deputies "would walk away from 300 plant gardens" if they found them to be in compliance. The defense grilled him on parameters of a garden that he would consider in compliance. During cross-examination, both Smith and Cash admitted that there are no limits on the number of members that are allowed to associate collectively or cooperatively under the law. Ultimately the government witnesses provided the necessary evidence which allowed the jury to see that Strauss and Maligno were making every attempt to follow the law. In this way, the prosecution actually made the case for the defense.

Defense witnesses included Andrew Kramer, President of the West Hollywood Center for Compassionate Healing, as well as Jeff Jones, founder of the Oakland Cannabis Buyers Co-op, who administers the Alameda County patient verification database for the Department of Health. They were asked to explain the necessary procedures to set up a lawful storefront collective and to describe why one is needed in an urban area like Los Angeles.
Court certified cannabis expert Chris Conrad testified about issues connected to how much marijuana is reasonably related to a large collective such as West Hollywood and the difference between a person's behavior who is lawfully cultivating versus a person unlawfully cultivating.
Dr William Courtney was asked to clarify the baseline or average dosage schedule for cannabis patients. He testified that a reasonable dosage schedule can range from between 4 and 20 grams per day based on published government studies. He also testified that 7 joints per day as an average dosage schedule @1-2 grams per joint amounts to 1/4 to 1/2 ounce per day.

Another tactic of the defense was to call Attorney Keith Faulder to testify to refute the claim that law enforcement routinely walks away from "medical grows" based on his own experience, since most of his 66 cases are small medical cannabis growers trying to comply, as the application of the law changes from month to month and regime to regime. The prosecution asked the court to exclude Faulder's testimony. The controversial motion was heard Thursday May 26 at the end of the day outside the presence of the jury. Before the motion was argued, jurors were dismissed and the public audience had left under the misimpression that court proceedings were over. Dep DA Rayburn Killion, who prosecuted the case, argued to exclude Faulder as a witness and instead allow the testimony of a DEA agent who raided the West Hollywood dispensary in early 2007. Judge Ron Brown granted the prosecution motion and excluded Faulder's testimony as 'collateral'. Killion then withdrew his motion to allow the DEA agent to testify.

Defense attorney Edie Lerman was visibly upset with the trend to exclude defense witnesses. "First they exclude patient advocate Bill Britt as 'redundant' and now Keith Faulder as 'collateral'. Does that mean we can no longer impeach the statements of witnesses against the defendants? Does that mean we can no longer challenge law enforcement's false claims? This has constitutional implications."

Despite the setback, the defense was affirmed by a jury who, in their majority, believed the defendants were innocent. The law reads: "The Medical Marijuana Program Act allows qualified patients...and designated primary caregivers of qualified patients...to associate within the state of California in order collectively or cooperatively to cultivate marijuana." The jury followed the law on cannabis patient collectives and did not convict.

The Strauss-Maligno case relied on the new marijuana laws enacted under the Medical Marijuana Program Act (Senate Bill 420) in 2003. In August 2008 the California Attorney General published his Medical Marijuana Guidelines. They are currently considered the best authority for the legal elements of the "closed circuit membership" model, that explains how to lawfully cultivate collectively or cooperatively under H&S 11362.775 (SB420). The most comprehensive legal analysis of the new medical marijuana laws under SB420 is the 3d District Court of Appeals precedent, People v Urziceanu (2005), that interprets the meaning of "collective cooperative cultivation projects" as adding extra protections for 'sales' and 'distribution', if evidence shows a situation of collective good rather than individual profit. In Urziceanu, the court held that:
"This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation
of marijuana for persons who are qualified patients or primary caregivers... It's specific itemization of
the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana
cooperatives that would receive reimbursement for marijuana and the services provided in conjunction
with the provision of that marijuana."

Defense attorney Edie Lerman remarked about the case after the verdict, "This shows that juries will be fair if they hear all the evidence and understand the law, regardless of the quantity involved. The Strauss-Maligno case proves that no credible medical marijuana case should be dealt away with a plea agreement, unless perhaps it is for deferred judgment, where the record is erased in six months. We're getting calls from other lawyers saying they are now emboldened to take their cases to trial."

The message is clear: Meredith Lintott's constituency does not support wasting enormous amounts of money and court time on medical marijuana prosecutions where a jury will not convict.

The Allman-Lintott era (2007-2008) has marked an astronomical increase in marijuana law enforcement activity compared to the Craver-Vroman era (1997-2005), culminating in 2008 Mendocino County totals: 710 arrests and 520 prosecutions (at the rate of two cases filed per day, according to Dep DA Jill Ravitch).

When Tony Craver was sheriff, felony marijuana arrests stayed generally under or around 100: 1997--89; 1998--95; 1999--98; 2000--111; 2001--91; 2002--85; 2003--83; 2004--73; 2005--112. Craver retired early on medical leave in the winter of '05. Interim Sheriff Broin's 2006 felony arrests of 173 started the process of scrapping Craver's gardensite guidelines and written instructions to deputies (General Order 202). This trend increased after Sheriff Allman's election throughout 2007-08, during which time Allman withdrew written instructions to deputies, stopped all training of deputies in medical marijuana guidelines, granted extraordinary discretion to deputies in a policy void and arrests spiked dramatically, ending in 710 in 2008.

Many dozens of those hundreds of cases are vulnerable patients with medical cannabis claims and small-scale gardens for personal use, victimized by overzealous law enforcement. Patients and caregivers are increasingly learning the value of organizing collectively or cooperatively, so as to be in compliance with current law. However, law enforcement has routinely abused its discretion, claiming "too much" (as in the Strauss-Maligno case), while ignoring evidence of a valid collective situation, taking and destroying property and leaving the court to sort it out. The Medical Marijuana Patients Union has received numerous reports from Mendocino County residents that sheriff's deputies often ignore posted doctors' approvals and state ID cards, arrest patients like common criminals, and seize the children to coerce the parents to confess to crimes they did not commit.

Leaderless law enforcement has become adversarial and is routinely using patients' borderline legal status to get warrants, gain entry, raid, arrest, seize medicine, money, bank accounts, vehicles, property and prosecute, rather than find ways to protect the rights of people who aren't necessarily doing anything wrong and who deserve the benefit of a doubt. One of

Sheriff Craver's instructions to deputies in MCSO GO202 concerned gardens in borderline compliance: the instruction was to take samples and photos, not whole plants and not whole gardens, then further investigate. The standard should be investigate first before arresting and seizing medicine.

The medical marijuana guidelines just released by the Sheriff's office disappointingly contain nothing new and are inadequate to provide guidance, in that they fail to even mention medical marijuana collectives and cooperatives -- the legal pathway to the future due to "enhanced" statutory protections to sell and distribute to association members if organized for collective good rather than individual profit (H&S 11362.775). Consensus is that SB420 collectives and cooperatives will, in the immediate future, comprise the de facto patient majority, based on the August 2008 AG Guidelines that explain the legal parameters of a "closed circuit membership" model--allowing two or more people to collectively or cooperatively cultivate marijuana for medical purposes with reasonable salaries, remuneration for provision of medicine and compensation for expenses.

If a Mendo jury won't convict on 300-400 pounds of medical cannabis under the auspices of a collective or cooperative, after a few more jury trials with competent attorneys, soon the prosecutions will plummet and qualified patients will not have to fear but rather will welcome a jury of their peers finding them innocent.

Either the number of prosecutions will plummet or the waste of tax dollars will increase--either way the number of convictions will ultimately drop as the fear of medical cannabis growers becomes a thing of the past and regulation of medical cannabis production a plan for the future.

AFTERWARD: After the trial, 4 of the 5 jurors who voted for conviction went to the DA with the message not to bother prosecuting the case again as a jury will never convict. In other words, 11 of the 12 jurors thought the county had no case against a legitimate collective with 400 pounds. Dep DA Killion made a motion to dismiss, which the judge granted, and the DA has not refiled the charges.