Pubdate: Tue, 04 Mar 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Author: Denny Walsh, Bee Staff Writer


In A Stunning Reversal, A U.S. Magistrate Opts For Probation Instead.

In a remarkable reversal Monday, U.S. Magistrate Judge Peter A. Nowinski 
threw out the three-month prison term he imposed last week on medical 
marijuana activist Jeff Jones and placed him on probation for three years. 
The participants in the proceedings, as well as about 20 others seated in 
the courtroom, sat stunned as Nowinski announced his change of mind.

In a scene as dramatic as any in the history of Sacramento's federal court, 
the judge took the bench and said, "I've given the matter a great deal of 
thought over the weekend.

"My purpose is not to make life miserable for you," he told Jones.

Nowinski related a Sunday conversation with his 17-year-old son about what 
he planned to do.

"People will think you are responding to the publicity in the newspaper, 
and won't that be embarrassing to you?" his son asked.

"Yes, it will be embarrassing to me," the judge said he replied. "But my 
feelings are not worth one day in jail for anybody."

Nowinski had initially leaned toward probation for Jones, 38, who was found 
guilty by Nowinski in a non-jury trial of trying to influence prospective 
jurors. They were called for a major drug prosecution of a fellow medical 
marijuana advocate. Jones handed out written information about the case to 
some of the potential jurors as they entered the courthouse.

But Nowinski was angered over defense attorney Michael Bigelow's argument 
at Thursday's sentencing that Jones should not have to pay restitution for 
the loss of a prospective panel because a jury could have been salvaged 
from the group.

Bigelow argued that U.S. District Judge Frank C. Damrell Jr. acted out of 
"pique, rather than reason" when he disqualified all 42 prospective jurors 
during last year's trial of Bryan Epis and convened a second panel.

In imposing the three-month prison sentence, Nowinski said Jones, who heads 
the Oakland Cannabis Buyers' Cooperative, was not taking responsibility for 
his conduct, and was trying to blame Damrell for the Epis trial disruption.

After Thursday's stormy proceeding, Bigelow filed an appeal. He orally 
withdrew the appeal Monday in court when he learned of Nowinski's intention 
to resentence his client to probation.

Early Monday, as Jones was preparing to report to a federal prison in 
Atwater, about 110 miles south of Sacramento, word came to Bigelow that 
Nowinski wanted him and his client in court at 2 p.m.

The judge noted during the proceeding that the flier Jones handed to 
prospective jurors included information Damrell had ruled inadmissible at 
Epis' trial. He said he finds "implausible" Jones' insistence that he was 
unaware at the time of the precise contents of the flier.

That, plus the argument that "it is all Judge Damrell's fault," convinced 
him that Jones still does not see the real issue -- the integrity of the 
jury system, Nowinski said.

"The punishment I meted out (Thursday) seemed unavoidable," he added.

He then related two incidents to the hushed courtroom.

He said he and Damrell lunched together Monday and, as they returned, one 
of about a dozen people demonstrating outside the courthouse in support of 
Jones approached them -- unaware of their identities. The demonstrator 
handed Nowinski a flier headed, "How could this happen in America?" and 
asked, "Did you hear what happened here last week?" The judges walked on 
without comment.

Secondly, Nowinski said, on the day he was taking the drastic step of 
reversing a sentence, "I would rather not have learned that Judge Damrell 
and I each received a letter in the 16th-floor mailroom containing a white 

He paused, then declared, "Passions are way too high."

Testing by hazardous material officers later showed the substance to be 
nontoxic, sources said late Monday.

The judge then sentenced Jones to three years on probation, plus 
restitution of $3,925 -- the cost of bringing the first group of 
prospective jurors to court for the Epis trial. "The panel was tainted by 
your conduct," he told Jones.

Nowinski noted that Monday's sentence follows the recommendation of a 
probation officer in a pre-sentence report to the judge.

Prosecutor Christopher Hagan pointed out that the report also recommends a 
$1,000 fine, and asked Nowinski to include it in the sentence.

"I think I'll not today," the judge replied. "I'm sure Mr. Jones has had 
$1,000 worth of anguish over the weekend."

He then asked Jones if he had anything to say.

At first, the defendant was hesitant but, after conferring with Bigelow, he 
told Nowinski:

"Am I sorry I handed out this material? Absolutely. Am I sorry I broke the 
law? Absolutely. Am I sorry I disrupted the court? Absolutely."

To which Nowinski responded, "I was going to scold you. But in light of 
what you've just said, I won't."

Glenn Backes, director of the Sacramento office of the Drug Policy 
Alliance, a national lobbying organization that supports medicinal use of 
marijuana, said in an interview outside the courtroom that all the 
demonstrators at the courthouse Monday share Jones' dismay over the 
suspicious letters addressed to Nowinski and Damrell.

"It overshadows the great things Judge Nowinski and Jeff Jones said," 
Backes said. "Two grown men willing to admit they made mistakes. That's 
always something I respect, especially in this time when people are really 
hard pressed to take responsibility."
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