Pubdate: Wed, 23 Jun 2010
Source: Chico Enterprise-Record (CA)
Copyright: 2010 Chico Enterprise-Record
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Website: http://www.chicoer.com/
Details: http://www.mapinc.org/media/861
Note: Letters from newspaper's circulation area receive publishing priority
Author: Terry Vau Dell, Staff Writer
Related: http://www.mapinc.org/drugnews/v10/n476/a09.html

FATHER, SON ACQUITTED IN POT-GROW CASE

OROVILLE -- A jury on Tuesday acquitted two Concow men of criminal 
charges in a medical marijuana grow on their property.

Jurors said after the verdict they agreed Michael Edmond Kelly, 29, 
and his father Sean Joseph Kelly, 57, were part of a lawful medical 
marijuana collective.

The Kellys were found not guilty of two counts each of possession of 
marijuana for sale and illegal cultivation.

The son, who was acquitted in an unrelated 2003 medical marijuana 
trial, was found guilty of a misdemeanor Fish and Game violation for 
diverting or obstructing a stream to irrigate one or more of the gardens.

Michael Kelly said he felt the verdict was a victory for all medical 
marijuana collectives.

"I've been terrorized -- me, my family and my community. We proved 
our innocence and the jurors spoke for the people," he said outside of court.

He and his father were twice arrested over a six-month period, first 
in October 2008 when Butte County sheriff's officers seized 35 
recently harvested plants from a grow site on their Paiute Drive 
property in Concow.

Officers testified they confiscated an additional 377 small pot 
"clones" and several additional plants the following June from the 
Paiute site and a second parcel owned by the son off Jordan Hill Road.

During the two-week trial, several witnesses testified they had 
helped plant and tend to the grows as part of a loosely organized 
16-member medical marijuana collective.

Judge William Lamb had initially refused to instruct the jury on the 
law pertaining to collectives, saying he believed there was evidence 
of impermissible sales.

The younger Kelly's attorney, Jodea Foster, charged outside of court 
the judge was violating his client's rights acting as "a 13th juror" 
by deciding issues of fact in the case.

Reversing himself Tuesday, the judge decided to ask the jury first to 
make findings whether either defendant intended to sell or give away 
marijuana to those outside the group of medical marijuana patients.

When the jury returned after 25 minutes, answering a resounding "no" 
to both questions, the judge gave the collective instruction sought 
by the defense and the attorneys delivered their closing summations.

Assistant district attorney Helen Harberts pointed to the amount of 
marijuana seized as proof the defendants were growing in excess of 
what was needed to meet medical needs.

During the trial, Butte County Sheriff's detective Jacob Hancock had 
quoted Michael Kelly as saying he planned to sell any excess pot to a 
cannabis club to help recoup their costs.

But the younger Kelly's attorney argued the defendant was only 
responding to a "hypothetical" question posed, and pointed out all 
members of the collective consistently had denied there was any 
excess marijuana, and didn't discuss selling or giving any away to others.

Neither was there any evidence associated with drug sales, such as 
packaging material, cash or "swanky homes and lavish cars," the 
father's attorney, Robert Radcliffe noted.

Radcliffe reminded the jury that when Sean Kelly was questioned, he 
told police "they were not in it for the money, but for the medicine."

The jurors deliberated nearly two hours more before acquitting the 
defendants on the two felony marijuana counts, finding Michael Kelly 
guilty of the stream alteration.

Jurors said afterward they believed the defendants were attempting to 
follow the law governing medical marijuana collectives.

"The prosecution did not show any evidence it was being sold or going 
to be sold. It just wasn't there," said Chico juror Cecil Pennock.

The amount of marijuana being grown by the collective was an issue 
for some jurors, he said.

"I think they were using quite a bit of pot and I personally hate to 
see that, but they were following the law," Pennock added.

Fellow juror Matthew Johnson, also of Chico, said they were hampered 
about much medical marijuana can be grown within a collective.

"The law is so vague it doesn't say anything about amounts," the 
juror noted. "The law should definitely be elaborated so there's 
more, like, stepping stones for people, so they know what they can 
do," the juror added.

Following the verdict, Michael Kelly vowed to sue the sheriff's 
detective who "stole my medicine" and to file a motion in court 
asking all the pot be returned to the members of the Concow collective.
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