Pubdate: Wed, 11 Aug 2010
Source: Oroville Mercury-Register (CA)
Copyright: 2010 Oroville Mercury Register
Contact:  http://www.orovillemr.com/
Details: http://www.mapinc.org/media/2277
Author: Terry Vau Dell

JUDGE SAYS POT RETURN ONLY A 'JOKE'

OROVILLE - A judge is now saying that a proposed court order to return
seized medical marijuana to members of a Concow collective was clearly
intended as a "joke," but the attorney for a man acquitted by a jury
in the case isn't laughing.

"I didn't understand this to be a joke," Chico attorney Jodea Foster
said Wednesday of discussions that took place in the judge's chambers
last month over a motion Foster filed seeking the return of 56
marijuana plants and more than 250 starter "clones."

The plants were seized by Butte County Sheriff's officers during two
raids on his client's Concow property in 2008 and 2009.

At a trial earlier this year, a Superior Court jury acquitted Foster's
client, Michael Kelly and his father, Shawn Kelly, of illegal
cultivation and possession of marijuana for sale stemming from the two
busts.

Jurors said they believed the pair were growing the marijuana as part
of a loosely-organized but lawful 16-member medical marijuana collective.

Michael Kelly was found guilty by the same jury of a related
misdemeanor charge of illegally diverting water from a small creek to
irrigate the plants.

On Wednesday, assigned Judge William Lamb denied a defense motion for
a new trial on the Fish and Game violation, rejecting Foster's claims
that the evidence presented to the jury was insufficient to establish
that a "substantial" amount of creek water had been diverted by Kelly.

The judge indicated he was also prepared to deny the companion motion
to return the seized marijuana to Michael Kelly at least in part
because he had not shown himself to be the owner.

But assistant district attorney Helen Harberts requested additional
time to file a written response to the defense motion.

Lamb has set a hearing next month for ruling on the pot return issue
and to sentence the younger Kelly on the misdemeanor water diversion
charge.

The prosecutor said outside of court that she could find only a couple
of "conflicting" prior court cases over the court's authority to
return seized marijuana to a defendant.

"This an area of the law where no one is quite sure," said the
prosecutor.

Last month, Lamb had presented a proposed written "order" to both
sides during a meeting in chambers.

It stated: "Upon presentation of this order, 52 ounces of the
marijuana retained as evidence" would be returned, provided the
individual had a valid driver's license or other photo identification
"and a copy of a currently valid doctor's recommendation for the use
of medical marijuana."

The two-page, unsigned document added a further qualification.

"The court does not warrant the medical efficiency of the substance
provided," and adds that the court order would "remain in effect for
30 days or as long as supplies last, which ever first occurs," after
which any unclaimed pot would be "destroyed as contraband."

Lamb told the Enterprise-Record that it's clear by the language that
the proposed order was not meant to be taken seriously, and that he
tried to stress that during the prior meeting in chambers with the
lawyers.

Because the other members of the Concow collective were not part of
the criminal case, they had no legal standing, said the judge.

District Attorney Mike Ramsey said at the time that he also regarded
the judge's order as a "joke" based on discussions with his
prosecutor and didn't bother to read it.

But Foster said he took it seriously.

"My understanding was I was to take this (order) back to my client,
and the DA was to take this back to the DA's office as a proposed
response to my motion" for the return of the seized medical marijuana,
Foster said Wednesday.

He said the judge had indicated in chambers "they were going to return
a pro-rata share to each and every individual" of the collective.

"I didn't understand this to be a joke," added the defense
attorney.

The younger Kelly plans to file a civil suit over the raids on his
family's property, alleging among other things "unlawful seizure of
our medicine, wrongful arrest, deprivation of character, harassment
and false imprisonment."

"Butte County's law enforcement budget for a decade couldn't cover
what they owe the Concow Cannabis Coalition," an irate Kelly said
outside of court Wednesday. 
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