Judge Tosses Out Pot-Case Panel
A long-smoldering medical marijuana case burst into flames Monday when a Sacramento federal judge accused the defendant of trying to taint the prospective-juror pool and had him briefly arrested.
All 42 would-be jurors were disqualified by an outraged U.S. District Judge Frank C. Damrell Jr. when he learned that some of the panelists were given a first-person statement attributed to defendant Bryan James Epis, and a pamphlet purporting to explain how jurors are manipulated by judges.
Prospective jurors' exposure to the literature triggered a heated exchange between Damrell and an agitated J. Tony Serra, who insisted his client had nothing to do with the distribution.
The one-page statement "was apparently prepared by your client" and handed to people outside the federal courthouse after they identified themselves as prospective jurors, Damrell told Serra, while the defense attorney was talking over him.
The judge declared that if Epis was behind the distribution, "that's criminal contempt," adding that it "sufficiently contaminated" the panel to wipe out its viability. Damrell said he will bring in a new panel Wednesday.
Meanwhile, the judge set an Aug. 1 hearing on whether Epis is guilty of obstructing justice by attempting to influence the jury.
Monday's clash is the latest manifestation of the increasing tension between the advocates of California's law allowing medical use of marijuana on a doctor's recommendation and the agents and prosecutors who enforce the federal ban on pot for any purpose.
Underscoring the hostile atmosphere was a federal drug agent's arrest of a leading pro-marijuana activist, who was then locked up in one of the building's holding cells. Jeffrey Jones, who was arrested outside the courthouse during the Epis hearing, was later brought before U.S. Magistrate Judge Gregory G. Hollows. Jones was cited for a misdemeanor attempt to influence jurors by handing out the literature and released pending trial.
Jones heads the Oakland Cannabis Buyers' Cooperative, which provided pot to patients suffering from AIDS, multiple sclerosis and other serious ailments. It was hit with an injunction two weeks ago by a federal judge in Oakland.
The ruling halts the operation of such clubs, even though they are permitted under California's Proposition 215, the 1996 initiative that made marijuana legal for some seriously ill patients. Next to consider that case is the 9th U.S. Circuit Court of Appeals, which ruled for the pot clubs in an earlier, narrower Proposition 215 matter, but was reversed by the U.S. Supreme Court. The high court found that medical necessity offers no defense to federal prosecution.
While that litigation is playing out in the civil arena, the Epis case will be the first federal criminal prosecution involving a cannabis buyers' club to go before a jury. The trial is expected to last two weeks.
Epis, 35, was a founder and supplier of Chico Medical Marijuana Caregivers. He is charged with conspiring to manufacture at least 1,000 plants, which carries a mandatory 10-year prison term, and manufacturing at least 100 plants, which carries a mandatory five years -- all within 1,000 feet of Chico Senior High School.
His voice rising Monday, Serra accused the judge of acting on "double hearsay," as U.S. deputy marshals moved in at Damrell's direction, handcuffed Epis and led him out of the courtroom.
Damrell later relented and ordered Epis' release. But he found there is "reason to believe the defendant caused the dissemination of (the fliers and pamphlets) in an attempt to influence the jury's verdict."
He said copies of each were supplied to him by the jury administrator and the prosecutor, Assistant U.S. Attorney Samuel Wong. The judge appointed Wong and Assistant U.S. Attorney Kenneth Melikian to investigate Epis' role, if any, in the dissemination of the literature, and prosecute him if the evidence warrants it.
Serra said in a hallway interview that the statement of the case has been available on the Internet since early this year. An addition to the statement urging people to come to the courthouse Monday and join a "respectful" protest against federal marijuana policy was later available on the same Web site, he said.
In the statement, Epis is quoted as saying that, even though he was initially indicted in 1997, he was not charged with a 1,000-plant conspiracy until January, after he refused Wong's offer of four years in prison in return for pleading guilty to growing 100 plants.
"I never profited from medical cannabis and provided it to seriously ill patients with a doctor's recommendation," the statement says.
The pamphlet, a product of the so-called Fully Informed Jury Association, alleges that judges rarely tell jurors of their right "to judge the law itself and vote on the verdict according to conscience." The pamphlet says a person cannot be forced to obey a "juror's oath" and has the right to "hang" the jury "if you cannot agree with the other jurors."