Pubdate: Wed, 18 Apr 2001
Source: Press Democrat, The (CA)
Copyright: 2001 The Press Democrat
Contact:  http://www.pressdemo.com/
Details: http://www.mapinc.org/media/348
Author: Clark Mason, The Press Democrat
Related: http://www.mapinc.org/drugnews/v01/n642/a08.html

JURY DELIBERATIONS TO BEGIN IN POT TRIAL

At Question Is Whether Petaluma Man Can Be Considered Caregiver To 1,280

A Sonoma County jury will begin deliberating this morning in a pivotal case 
involving the distribution of medical marijuana, one of the issues left 
unresolved when California voters approved pot for medical use five years ago.

The jury is being asked to determine if a Petaluma man who managed a San 
Francisco marijuana buyers club qualified as a caregiver to a large number 
of people -- 1,280 of them -- as the term caregiver is defined in the law.

The case also has political implications for Sonoma County District 
Attorney Mike Mullins and his San Francisco counterpart, Terence Hallinan, 
who have opposing views on buyers clubs and have been drawn into the trial.

Prosecutor Carla Claeys told jurors in closing arguments that the case is 
"very, very important" and their decision could affect what will happen in 
Sonoma County and around the state for years to come.

Defense attorney William Panzer said acquittal would send a message to 
critics of Proposition 215, the initiative that allowed medical use of 
marijuana with a doctor's approval.

"Send a message to Mr. Mullins," Panzer told jurors, adding they can send 
another "next year, when he runs for re-election."

Panzer described defendants Kenneth E. Hayes and Michael S. Foley as 
"people who are helping sick and dying people pursuant to Prop. 215."

Claeys portrayed Hayes as a man who profited by selling marijuana to the 
club where he worked as executive director. She described Foley, his 
co-worker and former roommate, as aiding and abetting him.

The prosecutor said Hayes had little time to care individually for the 
1,280 people who went to the club to get marijuana.

"A primary caregiver is someone who consistently cares for another person 
and knows what their needs are," Claeys said. "The law doesn't recognize a 
buyer-seller relationship."

The seven-week trial took twice as long as Judge Robert Boyd estimated, and 
by the time the prosecution and defense rested, jurors actually applauded.

It is the second Proposition 215 case to reach trial in Sonoma County this 
year. Both dealt with issues left unsettled by the 1996 medical marijuana 
initiative.

In the first, a jury acquitted a man who mounted a medical defense after 
being charged with illegal cultivation of more than 100 marijuana plants.

That's more than prosecutors considered appropriate for a medical user, but 
the law is silent on how much users may possess.

The current case involves another ambiguous aspect of Proposition 215: the 
ability of caregivers to provide marijuana for medical users. The law 
permits that, but provides no further details.

When he testified, Hayes acknowledged buying marijuana on the black market 
for sale at the club, but Claeys said records seized at his house indicated 
he was marking up the price.

She said scales, packaging materials, a pound of hashish, more than 15 
pounds of processed marijuana, a .22 caliber rifle and $3,700 in cash taken 
from the house were consistent with drug sales.

The defense said the cash was largely from money stashed by Hayes' 
common-law wife and the rifle was used to guard the chickens from marauding 
raccoons.

But the jury will have to make the distinction of whether Hayes was selling 
marijuana, which is illegal, or recovering his expenses for the marijuana, 
which courts have allowed caregivers to do.

"This is about money," Claeys told the jury, saying Proposition 215 "didn't 
contemplate setting up a business around marijuana."

The prosecutor said the club kept sophisticated records of the number of 
grams of marijuana it sold each day, but Hayes had no records of the cost 
of his Petaluma marijuana farm and "testified off the top of his head as to 
costs."

Over the course of the trial there was lengthy testimony about marijuana 
cultivation, yields and varieties, as well as detailed analysis of the 
costs of an 899-plant operation like Hayes had in his barn and six 
greenhouses off King Road.

Members of Hayes' club testified and so did Hallinan.

In her closing argument, Claeys said Hallinan visited the club in the city 
but knew little of what was happening in Petaluma.

"He may have been well intentioned," she said, "but he was uninformed and 
somewhat ignorant."

In his closing argument, Panzer said the case was about "an incredible law 
that changed the course of a mighty river of jurisprudence that had run 
some 60 years" and allowed sick people to use marijuana without being 
branded criminals.

He noted that Proposition 215 called for the state and federal governments 
to develop a plan to provide for the safe and affordable distribution of 
marijuana to patients in need, but "politicians have failed to do that."
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