Pubdate: Wed,  9 Feb 2000
Source: Redding Record Searchlight (CA)
Copyright: 2000 Redding Record Searchlight - E.W. Scripps
Contact:  PO Box 492397, Redding, CA 96049-2397
Website: http://www.redding.com/
Forum: http://www.redding.com/disc2_frm.htm
Author:  Maline Hazle, RRS 

LAWYER: SHERIFF'S HANDS TIED
County Counsel Says Pope Had To Give Pot To Agents

Sheriff Jim Pope could have been arrested had he blocked the federal
seizure of marijuana that a judge had ordered returned to a Redding
man and should not be held in contempt of court, Shasta County lawyers
contend.

An attorney for medicinal marijuana user Richard Levin, owner of the
seized pot, responds that county attorneys should be thrown off the
contempt case.

The arguments are part of a continuing barrage of contempt paperwork
filed in Shasta County Superior Court.

In a document filed Tuesday, county attorneys counter that Levin's
lawyer, Eric Berg of Redding, makes allegations that he doesn't back
up by citing proper laws.

''All that the sheriff and undersheriff (Larry Schaller) did was
submit to a lawful seizure order issued by a federal magistrate
judge,'' says a court document the county filed answering Berg's
original petition on behalf of Levin.

Levin, 49, was acquitted of charges of growing marijuana for sale
after jurors found that his garden was legal under Proposition 215,
the 1996 law that permits medicinal marijuana use with a doctor's permission.

Superior Court Judge Bradley Boeckman ordered Levin's marijuana
returned twice  on Jan. 7 and again Jan. 14. But when Levin and Berg
went to the sheriff's office to retrieve it at 4 p.m. Jan. 21, they
were told it had just been seized by a federal agent from Sacramento.

On Friday, Berg asked Boeckman to find Pope and Schaller in contempt
for disobeying his orders  a finding that could land the lawmen in
their own jail.

Deputy County Counsel John Loomis, in his response to Berg's petition,
argues that Berg failed to show ''beyond a reasonable doubt that
either the sheriff or the undersheriff had the ability to comply''
with Boeckman's order or that they ''intentionally'' refused to obey
the court.

Since federal law prohibits possession of marijuana, Loomis argued,
Levin has no property rights to the pot.

Loomis' paperwork prompted more from Berg. The attorney contends that
Pope and Schaller are not entitled to legal representation by the
county counsel's office and the county lawyers have a conflict of
interest because they told Pope it was all right for him to give
Levin's pot to federal agents.

''They cannot act as attorneys representing the accused and at the
same time be witnesses to the events. ... If nothing else, their
allegiance to their clients (Pope and Schaller) will compromise their
ability to relate accurately and objectively'' what they observed,
Berg contended.

''Members of the (county counsel's) office are in all likelihood ...
co-conspirators in the very acts of contempt which the petition alleges.''

But Loomis, in Tuesday's filing, says ''there is no evidence of any
'conspiracy' whatsoever,'' and that even if an attorney is a witness,
the law says it doesn't necessarily cancel attorney-client privilege.

On Tuesday, Boeckman notified Berg and Loomis that he will defer
consideration of the petition until Feb. 18 to give the attorneys time
to decide whether they think he should disqualify himself because of
his official dealings with Pope and Schaller.

Boeckman is the county's presiding judge, and he and Pope have been
discussing courtroom security and the possible merger of the county
marshal's office with the sheriff's office.

Reporter Maline Hazle can be reached at 225-8266 or  ---
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