The age of 'reason' 

In 1925, the landmark Scopes “Monkey” trial turned a small Tennessee hamlet upside down in a battle between the theories of creation and evolution.

Not wholly unlike that highly publicized trial, which would alter the court of public opinion over evolution, a recent trial concluded in San Luis Obispo Superior Court. It had all the elements of good drama: two sympathetic defendants, the big-city attorneys defending them, the native son prosecutor, and lots of finger-quoting around the words “science” and “reasonable.”

But instead of calling the theory of evolution into question, ours was a defining moment for medical marijuana access in SLO County.

After hearing more than two weeks of testimony, 12 jurors made history on Sept. 7, completing the first criminal trial relying on a medical marijuana defense ever to take place in the county.

And to the surprise of safe-access proponents—and the dismay of San Luis Obispo Narcotics Task Force (NTF) officers and the District Attorney’s Office—the jury returned not guilty verdicts for each defendant after less than three hours of deliberation.

In the short term, two men are both off the hook for four felony charges ranging from possession of marijuana for sale to conspiracy. More significantly, however, the verdict may cause law enforcement agents to rethink how they approach medicinal marijuana investigations. District Attorney Gerald Shea may have to consider differently which cases to pursue.

The case, which played out in Superior Court Judge John Trice’s courtroom, stemmed from an NTF investigation into Cal Poly student Deip Paul, 22, a qualified medical marijuana patient. In January 2009, Paul entered his apartment to find two unknown men rummaging through his belongings. Paul confronted the intruders, even snatching a ski mask off one of them, before being “choked out.” When he came to, Paul reported the incident to the police.

According to court documents, the responding officer took notice of the smell of marijuana in Paul’s apartment and was provided with Paul’s physician recommendation. According to Paul’s attorney, the officer neglected to collect the left-behind ski mask as evidence before leaving. The burglars were never caught, but stemming from that incident, the NTF started watching Paul under the suspicion that he was selling marijuana.

On Feb. 5, 2009, NTF agents tailed Paul roughly 80 miles to Kettleman City, in neighboring Kings County, where they watched him meet with Steven Brown in a parking lot behind a hotel, according to court documents. Brown, 53, of Kings County, was also a qualified medical cannabis patient and grower.

In the parking lot, agents witnessed what they suspected was a narcotics transaction, and later instructed Kings County Sheriff’s deputies to initiate traffic stops on both vehicles. Paul was found in possession of three pounds of packaged marijuana, and Brown with approximately $61,000 in cash. Both were arrested.

When the case finally made it to trial more than two years later, the question before the jury came down to whether Paul and Brown were within their rights as qualified patients to make such a transaction, and whether the amount of marijuana and cash exchanged were “reasonable” within the law.

“That amount is inconsistent with an amount that would be consistent with medical use,” Deputy District Attorney Lee Cunningham argued. “You must ask yourselves: Is this reasonably related to current medical needs?”

Over two weeks, jurors heard from a hodgepodge of witnesses, including the lead NTF investigator, SLOPD officer Cory Pierce; Paso Robles patrol officer Roger Degnan, who dramatically unveiled the five large bags of marijuana in the courtroom; Paul’s father, who invoked laughter from the jury when he described marijuana use in Indian culture; and Chris Conrad, an internationally renowned expert in medical marijuana laws and author of a number of books on the therapeutic effects of cannabis.

Cunningham dismissed Conrad’s testimony as “not science, but opinion.”

In a rare appearance, NTF Commander Rodney John—who heads the local program under the direction of the California Department of Justice’s Bureau of Narcotics Enforcement—also took the stand. John testified that an ounce of marijuana was worth approximately $38, based on a figure published in a 2010 study compiled by the RAND Corporation, a private, nonpartisan public policy think tank. The study, Altered State: How Marijuana Legalization in California Could Influence Marijuana Consumption and Public Budgets, was published prior to 2010’s failed Proposition 19, which would have legalized marijuana across the state.

John testified that the study proved Brown was making a profit off of marijuana sales by charging too much.

However, Beau Kilmer, co-director for RAND’s drug policy research center and one of the chief authors of the RAND study, told New Times in an e-mail that the study was used out of context. That figure was a projection, Kilmer wrote, based on the assumption that marijuana was legalized, that growers were paid standard agricultural wages, and that cultivation was mechanized.

Commander John refused to comment on the trial or the RAND study.

The prosecution’s case also hinged on the jury believing the testimony of Cory Wolin, 24, formerly of San Luis Obispo. Wolin, a former friend of Paul’s—and previously a co-defendant in the case—was initially charged with the same felonies as the other defendants, but took a plea deal to one felony count of keeping a residence to consume narcotics, in exchange for his testimony against Paul. Wolin testified that Paul at one point kept a small quantity of marijuana at Wolin’s apartment.

Wolin told New Times that he felt bad for taking the deal and testifying against his friend, but felt he had no choice.

“I got screwed,” Wolin said. “Totally screwed.”

Under his plea bargain, Wolin served 60 days in county jail, and is eligible to have his felony dropped to a misdemeanor in three years.

In closing arguments, Brown’s attorney Jay Leiderman spelled out the terms of the Compassionate Use Act to the jury, insisting that nowhere during the trial did the prosecution prove that either defendant broke the law. He dismissed Cunningham’s arguments that “common sense” dictated that both were engaged in illegal sales.

“Common sense—it’s very important, it’s what we use,” Cunningham told the jury in his closing arguments. “You don’t check your common sense at the door. I come from a long line of farmers and ranchers … and I think they got along just fine using their common sense, thank you very much.”

Following the closing arguments, the jury took less than three hours to acquit both Brown and Paul.

“The fact that this jury—after a two week trial—came back in just [three] hours with eight not guilty verdicts should tell the DA what they know now, that they should not be harassing patients,” Leiderman told New Times. “This should have never gotten to a jury.”

Deputy D.A. Jerret Gran, spokesman for the D.A.’s Office, told New Times the office is reviewing the case to see how the outcome may impact similar pending cases.

“While we were disappointed with the verdict, given the state of evidence, we respect the jury’s decision—but we disagree with the verdict,” Gran said.

Leiderman and Paul’s attorney David Nicks said their clients are now in the process of trying to retrieve their confiscated “evidence” and money from the NTF.

The outcome of the trial comes at a critical time for nine other defendants facing felony charges related to their operation of medical marijuana collectives. Patrick Fisher, a San Luis Obispo-based attorney representing seven of the nine delivery service operators who are awaiting trial after being arrested in late December 2010, told New Times following the verdict that this trial could hold implications for his clients’ cases.

A motion to dismiss those seven cases is set to go before SLO Superior Court Judge Barry LaBarbera on Sept. 19. 

Staff Writer Matt Fountain can be reached at [email protected].