DRIVING WITH POT? A-OK, NOW
A medical marijuana advocacy group received a $75,000 check from the state last week, courtesy of a legal settlement with the California Highway Patrol.
The money covers attorneys’ fees incurred by Oakland-based Americans for Safe Access, which sued in February 2005 to stop CHP officers from seizing drivers’ medical marijuana during traffic stops.
ASA agreed to settle the lawsuit in April in exchange for the attorneys’ fees and a pledge from the CHP to no longer take a legal amount of therapeutic pot from travelers who could provide a doctor’s note or a government-issued medical-marijuana identification card.
State law allows patients to have up to six mature marijuana plants or 12 immature plants and up to eight ounces of processed cannabis flowers. Some cities and counties give patients the right to possess even greater quantities.
“The CHP was by far the worst [law enforcement] offender as far as seizing the medication first and asking questions later,” ASA spokesman William Dolphin said.
Under the new agreement, the CHP changed its policy to allow legitimate prescription users to keep the amount of medical marijuana allowed by the jurisdiction where they are traveling, Dolphin said.
“We’re urging local officials around the state to adopt similar law enforcement policies,” Kris Hermes, ASA’s legal campaign director, said in a written statement. “Medical cannabis patients have rights under the law that must be respected, and this consent decree acknowledges that.”
As medical marijuana laws have evolved across the country, ASA’s legal work has increased. The organization now has a three-person legal team that tries to bolster state medical-use laws, Dolphin said.
The CHP lawsuit was the first ASA has brought under California’s private attorney general statute, according to the organization’s chief counsel, Joseph Elford.
� Cheryl Miller
ALSUP FUROR MAY BE FOR NAUGHT
It’s not saying much that San Francisco federal prosecutors’ arguments in a big gang case got a better reception before a three-judge Ninth Circuit panel Thursday than they did this summer from U.S. District Judge William Alsup.
At a withering July hearing, Alsup came up about two invectives short of a full-out conniption as he harangued prosecutors for violating his ruling to turn over discovery material under a protective order � and for suggesting he sanction them by precluding the death penalty against some of the gaggle of defendants. Alsup called that tactic “slippery,” and said the prosecutors were “hiding the ball,” making a “bogus argument,” engaging in “gamesmanship,” being “frivolous,” and “inviting the court to make an error.” He later ordered that any witnesses whose names weren’t turned over in advance � something the government said would jeopardize snitches’ lives � would be excluded from the case.
The stakes in the case have risen since then: Now two defendants, Emil Fort and Edgar Diaz, face execution.
The appellate panel was much gentler: Ninth Circuit Judges William Fletcher, Susan Graber and Richard Tallman focused their attention on a relatively narrow piece of the evidentiary rules, and seemed disinclined to completely back Alsup’s protective order.
That was good news for the U.S. attorney’s office, which had six or so lawyers in the audience, presumably for moral support.
“We believe the protective order is a clear abuse of discretion,” Erika Frick, the assistant U.S. attorney arguing the case, told the panel. She didn’t get a completely smooth reception, though.
“I was quite struck by Judge Alsup saying ‘I’m stuck between a rock and a hard spot,’” said Fletcher, alluding to the rough situation the trial judge faces if the government gets its way: Many witness names would not be disclosed until just before a person was set to take the stand, which would force the judge to grant mid-trial continuances for the defense to investigate witnesses.
And Tallman seemed troubled that the government did little to help Alsup draft his order. “Why didn’t the government participate in the drafting of the protective order?” he asked Frick. “It seems that the court was all but begging for the government’s help.”
Tallman and Graber, though, seemed to have bigger issues with the defendants’ main arguments, presented by Jones Day partner Martha Boersch. (Solo Michael Satris offered a separate argument asking the panel to preclude execution.)
The judges were also particularly concerned about ambiguity in how to apply evidence rules to material produced by state and local agents working on a federal investigation.
In the end, the judges seemed inclined to send the matter back to Alsup, but with guidance that would likely support the government’s argument that evidence rules allow it to keep state investigators’ reports private until just before trial.
That, Frick argued, is a necessity for the prosecutors. “We’ve given them as much discovery as we possibly can,” she said.
Fletcher corrected her: “You’ve given them as much discovery as you want.”
� Justin Scheck