Pubdate: Tue, 02 Jul 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/mmj.htm (Cannabis - Medicinal)

LEGAL GAFFE NO BARRIER TO POT TRIAL

Though no arraignment was held, the case can go on, the judge says.

A Sacramento federal judge decided Monday that the marijuana-growing trial 
of Bryan James Epis will continue, even though he has not entered a plea.

U.S. District Judge Frank C. Damrell Jr. ruled that the lack of an 
arraignment did not prejudice Epis because he and his attorneys knew of the 
grand jury indictment that replaced one with essentially the same charges, 
to which he pleaded not guilty.

Defense lawyers and the prosecutor blamed each other for the procedural 
mix-up but, without fixing blame, Damrell denied a defense motion to dismiss.

"If there ever was a good definition of harmless error, this is it," 
Damrell found. "It is clearly not prejudicial to Mr. Epis."

The judge then moved on to a subject that won't go away in this trial -- 
people outside the courthouse expressing support for the medicinal use of 
marijuana.

The federal government, unlike California, does not recognize medical 
necessity as a defense in a criminal prosecution, and Assistant U.S. 
Attorney Samuel Wong contends the 35-year-old Epis, charged with growing at 
least 100 plants, was motivated strictly by profit.

Epis, on the other hand, insists he was cultivating pot for sick people who 
were patients at a Chico dispensary that he helped establish.

Fermin "Ed" Aldana, an Esparto pot grower, handed a small flier to people 
approaching the courthouse Monday morning. It was titled "Americans for 
Safe Access," which is a pro-medical-marijuana organization whose members 
ran afoul of federal authorities Wednesday for handing out a pamphlet and 
picketing outside the building.

A drawing of a marijuana leaf on Monday's flier and information about the 
time and place of ASA meetings were marked over with a black pen and the 
word "censored" was printed at the bottom of the sheet.

Damrell said he had received a copy of the flier and resented the 
implication that he was somehow infringing on the rights of the protesters.

He reiterated a statement made from the bench Thursday that he has issued 
no orders curtailing their activities.

"Their First Amendment rights are inviolate," he noted.

He added, however, that both sides in the case "also have a right to a fair 
trial. They can picket. The law is well established that that is a 
constitutional right, but they cannot do anything to influence the jury, no 
matter how well-meaning.

"This jury will not be tampered with by anyone outside this courthouse, if 
I have anything to do with it. The case will be decided on the evidence and 
the law, and not by something jurors read in a handout or see on a picket 
sign."

Felony cultivation charges against Aldana were dismissed by a Yolo Superior 
Court judge in April after it was shown at a preliminary hearing that his 
50 marijuana plants were for people with a doctor's recommendation, in 
conformance with a 1996 California initiative.

After the Monday morning hearing broke up, Mike Rogers was detained by two 
drug agents because of the T-shirt he was wearing in court. While the 
agents were chasing Rogers down, Wong asked that Damrell return to the 
bench, and then told the judge the shirt bears the message, "No Justice."

Damrell banned clothing with such messages from the courtroom while the 
jury is present.

"I'm going to do all I can to keep (the jurors) from being exposed to any 
propaganda," he declared.

In the courthouse hallway, Wong directed the agents to release Rogers but 
informed him that he may not wear the shirt in the courtroom.

After the lunch break, defense lawyer J. Tony Serra produced the shirt, 
which Rogers had shed, to show the judge that it does not bear the message 
described by Wong. In fact, nowhere on the shirt are the words "no" or 
"justice."

Wong apologized to Damrell, saying he had been erroneously informed.

The front of the black shirt has the logo of the National Lawyers' Guild -- 
the scales of justice with the initials "NLG" superimposed on them. Under 
the logo is a pledge of purpose: "To the end that human rights should be 
more sacred than property interests."

In the 1950s and 1960s, the FBI designated the guild a subversive, 
communist-infiltrated organization and, on the back of Rogers' shirt is the 
late FBI Director J. Edgar Hoover's famous statement: "The National 
Lawyers' Guild is more dangerous than the people throwing the bombs."

Rogers is one of four representatives of the Butte Alliance for Medical 
Marijuana who attended Monday's hearing.

Once it was determined that the shirt didn't appear to be a jury-tampering 
tool, the jurors were brought into the courtroom, and testimony from the 
government's first witness resumed.

The trial has been dogged by controversy from the start and has drawn 
national attention.

It is the first federal criminal case involving a cannabis buyers' club to 
get to a jury, although Damrell has ruled Epis may not invoke a medical 
defense.

Information disseminated by protesters early last week led to the dismissal 
of 42 prospective jurors by Damrell. When a jury was selected from a new 
pool Wednesday, Wong asked the judge to ban pickets from the Fifth Street 
sidewalk across from the courthouse.

Damrell did not order the protestors removed, but he warned Epis and Serra 
they would be held responsible if the signs targeting federal pot 
prosecutions and the lengthy prison terms that go with them ultimately 
taint the jury.

Ironically, the pickets had been dispersed earlier Wednesday afternoon, 
three hours before the matter was argued in court.

Sacramento police say they were told by officers of the Federal Protective 
Service that it was done at Damrell's direction. A spokeswoman for the 
General Services Administration, parent agency of FPS, said a city officer 
dispersed the pickets. A spokeswoman for the protesters said the group was 
shooed off the sidewalk by federal police and the city officer, all of whom 
said they were acting at the judge's direction.

The trial will resume today.
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MAP posted-by: Jay Bergstrom