Pubdate: Wed, 21 Jan 2004
Source: Recorder, The (CA)
Copyright: 2004, NLP IP Company
Contact:  http://www.callaw.com/
Details: http://www.mapinc.org/media/652
Author: Jeff Chorney, The Recorder
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

STATE POT PROSECUTION NOW A FEDERAL CASE

Medical marijuana advocates are accusing state and federal lawyers of 
vindictive prosecution for arresting two drug defendants on federal charges 
while they sat in a Tehama County, Calif., courthouse.

The proponents say it's another example of the feds meddling in a case that 
would have been dismissed under the California medical marijuana law. 
Prosecutors counter that the amount of dope warrants federal involvement.

Defense lawyers accuse a Tehama County prosecutor of unethically "luring" 
them out of a courtroom last week while sheriff's deputies arrested their 
clients in court. A Tehama County assistant district attorney said Friday 
that the county followed normal procedure.

The case began more than six months ago, when David Dean Davidson, 52, and 
Cynthia Barcelo Blake, 53, were arrested after police seized marijuana from 
property in Tehama County and Oakland, Calif. The Tehama County district 
attorney's office prosecuted the couple on state charges until last week, 
when those were dropped and the office of Eastern District U.S. Attorney 
McGregor Scott took over.

Their attorneys said Davidson uses marijuana for back problems and 
depression, Blake for depression and insomnia. Both have doctors' 
recommendations. Depending on which lawyer you ask -- prosecution or 
defense -- the amount of marijuana seized from the couple was either more 
than 1,000 plants ready for wide distribution, or just enough for personal 
medical use.

The federal charges in the case, U.S. v. Davidson and Blake, 04-0004, 
accuse the couple of conspiracy to distribute at least 1,000 plants and the 
manufacture of at least 100.

U.S. Attorney Scott and Tehama County Assistant District Attorney Jonathan 
Skillman said Friday the case was ripe for federal prosecution. Besides 
involving what authorities believe is a substantial amount of marijuana, 
the case spans two jurisdictions -- Oakland and Tehama -- which the small 
DA's office, "with limited resources," isn't used to handling, Skillman said.

The defense said that's poppycock.

"What was so egregious about the state prosecutor's actions is that she 
deliberately skirted state law," said Omar Figueroa, who, along with J. 
Tony Serra, represents Davidson.

Shari Greenberger, who practices with Figueroa and Serra at the Law Offices 
of Serra, Lichter, Daar, Bustamante, Gilg & Greenberger in San Francisco, 
represents Blake.

Figueroa said Tehama County prosecutor Lynn Strom, who handled the state 
case, handed off the prosecution because she is afraid of losing. Serra 
said that amounts to vindictive prosecution because Davidson and Blake will 
no longer be allowed to assert their rights under the state medical 
marijuana law.

That accusation isn't new to the debate over medical marijuana. Advocates 
say they're frustrated when locals either hand off cases or when the feds 
get involved without being asked. In this instance, Scott said Tehama asked 
his office to get involved.

It is not known if the Tehama County judge knew Davidson and Blake were 
being plucked from the courtroom.

Serra and the other lawyers hope the recent 9th U.S. Circuit Court of 
Appeals decision, Raich v. Ashcroft, 03-15481, will help their position now 
that they're in federal court. The case said that growing marijuana for 
personal use, if it doesn't enter into commerce, does not constitute a 
federal offense.

The defense attorneys spoke Friday outside the federal courthouse in 
Sacramento, where they were accompanied by a handful of people holding 
signs advocating medical marijuana. The group called on Strom to resign for 
her handling of the case and for the way the arrest went down.

According to Figueroa and Greenberger, Strom announced in open court Jan. 
13 that the state charges were being dropped and then invited the defense 
lawyers back into judge's chambers. Once there, deputies swarmed into the 
courtroom and spirited away their clients, the defense lawyers said.

Strom could not be reached for comment, but Skillman spoke on her behalf, 
saying she did nothing wrong.

Although they admit they couldn't have stopped the arrests, Figueroa and 
Greenberger said it would have been more appropriate for them to have 
surrendered their clients. They at least would have liked the chance to 
advise their clients of their rights, they said.

Skillman said he didn't understand the defense attorneys' problem.

"They weren't told beforehand, and that's just the way it goes," he said.
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MAP posted-by: Beth Wehrman