Pubdate: Tue, 26 Aug 2003
Source: Chico Enterprise-Record (CA)
Copyright: 2003 The Media News Group
Contact:  http://www.chicoer.com/
Details: http://www.mapinc.org/media/861
Author: Terry VAU Dell, Staff Writer
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

BUTTE COUNTY'S ONLY MEDICAL MARIJUANA CONVICTION DISMISSED

OROVILLE - A judge Monday tossed out the only guilty verdict to be returned 
so far in a Butte County medical-marijuana trial.

A jury last spring had acquitted the defendant, Michael Kelly, 22, of 
Cherokee, of felony cultivation and sales, but convicted him of a 
misdemeanor drug possession count.

Ruling the evidence did not support the verdict, Superior Court Judge 
Robert Glusman dismissed the drug possession conviction Monday.

Ironically, Kelly had gone to court seeking a new trial on the misdemeanor 
charge, which could have carried up to six months in jail.

"I think it was the correct result legally and morally," said defense 
attorney Jodea Foster of Chico.

The only other medical-marijuana case to go to trial in Butte County had 
ended in an acquittal two years ago.

That case involved 21 marijuana plants seized from Cohasset resident 
Michael Rogers.

Sheriff's officers had raided Kelly's rural Cherokee property in February 
2001, seizing a relatively small amount of dried and processed marijuana 
from an outer shed.

Both local men raised an identical defense under Proposition 215, the 1996 
California initiative allowing pot to be smoked for medicinal purposes with 
a doctor's recommendation.

At Kelly's trial, a Berkeley psychiatrist testified he had prescribed pot 
to help the Cherokee man alleviate an "obsessive compulsive disorder."

But deputy district attorney Kristen Lucena called the medical marijuana 
recommendation "a sham" and a "cover" by the defendant to illegally sell 
the drug to others.

In a strongly-worded response, Kelly's lawyer contended his client was 
being made a "sacrificial lamb ... just because they (prosecutors) disagree 
with this law and they want to decide who is sick and which doctor should 
recommend (pot)."

Kelly's jury ultimately found he had the right to grow and smoke the drug 
medicinally.

But they said afterwards a confusing legal instruction led them to convict 
the Cherokee man of the misdemeanor possession charge because he was found 
with more than an ounce of pot.

In his legal brief requesting a new trial, Kelly's attorney had asserted 
the prosecution's own drug expert had largely conceded the amount of 
processed marijuana seized from Kelly's residence "fell within permissible 
limits for personal use."

Glusman, who was appointed to the local bench last year by Gov. Gray Davis, 
threw out the misdemeanor drug conviction Monday, agreeing with the defense 
that the jury verdict was "contrary to the evidence."
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