Pubdate: Sat, 29 Jun 2002
Source: Sacramento Bee (CA)
Copyright: 2002 The Sacramento Bee
Contact:  http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Denny Walsh, Bee Staff Writer
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

PICKETS OUSTED -- WHO GAVE ORDER?

Judge Denies Demanding The Protesters' Removal In The Latest Controversy In 
A Medical Marijuana Case.

Questions have been raised about whether federal and local police violated 
the constitutional rights of protesters near the Sacramento federal 
courthouse by forcing them to disperse.

The action was taken Wednesday when medical marijuana activists handed out 
pamphlets and held placards during jury selection in the trial of Bryan 
James Epis.

Information disseminated by protesters earlier in the week had already led 
to the dismissal of 42 prospective jurors by U.S. District Judge Frank C. 
Damrell Jr.

Government lawyers in the criminal pot case and Damrell are concerned that 
a jury selected Wednesday from a new pool will see the pickets critical of 
federal marijuana prosecutions and the lengthy prison terms that go with them.

Someone ordered the protesters had to go. That order, and the question of 
who issued it, are at the center of the controversy in a trial that has 
been troubled from the start.

Representatives of the Sacramento Police Department and the demonstrators 
said that officers of the Federal Protective Service -- a branch of the 
General Services Administration, which maintains federal buildings -- told 
them the dispersal was ordered by Damrell.

The judge denied having done so from the bench Thursday, which raises the 
specter of the officers acting without authority.

"It is outrageous and personally offensive to me if any police officer 
broke up a demonstration by invoking an order of the court that was never 
given," said Charles Stevens in an interview Friday. Stevens is the former 
U.S. attorney in Sacramento whose current private practice includes First 
Amendment litigation.

"Something like that would cut against everything our system of justice 
stands for," he said.

According to Sacramento Police Capt. Sam Somers, a city officer on the 
scene was told by FPS officers that the judge had said the demonstrators' 
actions were a detriment to the trial and that the city officer was needed 
to help get them off the Fifth Street sidewalk.

The city officer asked about a court order, but federal police said there 
wasn't one. However, they said dispersement was justified by a federal 
statute, Somers related. The statute was then read to demonstrators, who 
were told to leave, the captain said.

"We were basically in a facilitating role, not an enforcement role," Somers 
said. "The protest was peaceful and cordial. There were no arrests."

GSA spokeswoman Esther Timberlake told a different story Friday. She said 
FPS officers did not threaten arrests, as claimed by the demonstrators, and 
were not acting at Damrell's direction.

Timberlake said a court security officer showed Damrell the medical 
marijuana pamphlet being passed out by demonstrators and the judge said 
they could not disseminate it. An FPS officer relayed that to the 
demonstrators, she said. About 2 p.m. an assistant U.S. attorney brought a 
copy of the statute to FPS officers and wanted it read to the 
demonstrators, she added. She was unable to identify the assistant U.S. 
attorney.

As federal officers approached the demonstrators, the Sacramento officer 
was already shooing them off the sidewalk, Timberlake said.

Demonstration leader Aundre Speciale, a board member of the Sacramento 
chapter of Americans for Safe Access, which supports medical marijuana use, 
gave this version of Wednesday's events:

A court security officer and federal police officer told her roughly 
10-member group that the judge would not tolerate dissemination of the 
medical marijuana material, nor could they orally promote medical marijuana 
to passers-by.

They complied, but about 2 p.m. a city police officer arrived and told 
them, "I just got a call that the judge wants you out of here."

The officer was joined by five federal police officers. One of them 
videotaped the demonstrators and another one -- at the direction of the 
judge, he said -- read a statute that he said prohibited the demonstration.

The demonstrators were told if they returned Thursday to the same location, 
they would be arrested.

Speciale said she asked if they could be two blocks from the courthouse, 
and one of the federal officers replied, "That's up to the judge. If he 
doesn't like what you're doing, you're going to jail."

Speciale said they haven't demonstrated since because they feared being 
locked up. "We have jobs and children to care for," she said.

"I guess the lesson here is, there is no freedom of speech if a federal 
judge says you don't have it."

When Damrell took the bench Thursday morning, he said, "The court has made 
no orders regulating the pickets or signs or anything. They are free to 
exercise their First Amendment rights." What prompted him to make the 
unsolicited statement is unclear.

Late Wednesday afternoon, prosecutors asked Damrell to banish the picket 
signs, claiming they violated a federal law barring attempts to influence 
jurors. The prosecutors had earlier supplied the judge with surveillance 
photographs of the demonstrators taken by federal officers on foot or in 
cars circling the block.

The judge stopped short of issuing an order, but told defendant Epis and 
lawyer J. Tony Serra that he will hold them responsible if the picketing 
ultimately taints the jury. Damrell said he suspects Epis has some degree 
of control over the demonstrators and suggested he use that influence to 
discourage them from picketing.

Stephen Barnett, a professor and First Amendment scholar at the Boalt Hall 
School of Law at the University of California, Berkeley, expressed concern 
Friday about the way the protestors were handled.

"It sounds to me like there's a serious question whether the dispersal 
order was constitutional," Barnett said. "I can't believe any courthouse 
that has juries in it is off limits to demonstrators within sight of the 
building. Their rights to freedom of expression would have to prevail.

"If, on the other hand, the demonstrators are effectively blocking egress 
and ingress or are buttonholing jurors," Barnett said, "court officials 
would have every right to prevent that."

Stevens said it is up to the government to seek other ways to ensure a fair 
trial for both sides without infringing on demonstrators' rights.

"The fact that someone might think it would influence the jury doesn't mean 
people couldn't demonstrate against the death penalty outside a courthouse 
where a capital trial was in progress," he said.

Terry Francke, general counsel of the California First Amendment coalition, 
said if a demonstration focuses selectively on jurors or prospective 
jurors, "and is uniquely designed to influence them," official intervention 
could be warranted.

"But," he said, "the notion that a protest cannot take place anywhere near 
a courthouse has no foundation in law."

Meanwhile, some doubt has been cast over the trial's legitimacy because 
Epis, who was associated with a medical marijuana dispensary in Chico, has 
never been arraigned on the conspiracy and cultivation charges. Damrell 
will take up that snafu in a hearing Monday.
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