SAN FRANCISCO, Feb. 11, 2002. In a foretaste of what could await the defendants in the DEA’s medical MJ raids, a Sonoma County patient, Keith Alden, was summarily convicted of marijuana cultivation in the first federal jury trial of a medical cannabis grower in San Francisco.
The proceedings were a travesty of justice, as Alden was effectively precluded from presenting any real defense. Alden had been growing some 300 plants, ostensibly for medical use by himself and other patients. This being in excess of Sonoma’s guidelines, his case was handed over to the feds for prosecution. Turning down the advice of his public defender, Alden rejected a plea bargain offer and naively chose to represent himself in court.
In accordance with federal law, Judge Martin Jenkins rigorously excluded any mention of medicine, illness, medical marijuana or Prop. 215 at the proceedings. The court smiled condescendingly as Alden struggled with the rules of evidence and strove vainly to defend himself against the US government Leviathan.
Alden unsuccessfully tried to inform the jury of the medicinal nature of his marijuana garden. He called a witness, David Brew, to testify as to the kinds of persons who frequented his premises. “Did a lot of these people have serious illnesses?” Alden asked. “Not relevant” declared the Judge.
Alden also called on MMJ patient Allen MacFarlane, who was acquitted in a Prop 215 cultivation case last year. Was MacFarlane aware of other visitors at the house?
“Yes, I was aware of other individuals like me with cancer or AIDS…”
The Judge angrily cut off MacFarlane, dismissed the jury, and reprimanded the witness for having “slipped in a gratuitous remark.” “The issue of any use of marijuana is not relevant for this proceeding,” the judge warned. “You are aware Mr. McFarlane you may be incriminating yourself? Do you want an attorney?”
The jury having reconvened, Alden asked MacFarlane: “Is it true you had some of the plants under your control?”
“I can’t answer” said MacFarlane, invoking the Fifth Amendment “they threatened me.” The latter remark provoked yet another reprimand from the court.
The train of injustice rolled on inexorably to the closing statements, where the US Attorney neatly laid out all of the evidence: that marijuana was growing at Alden’s residence, that Alden had freely admitted to growing it himself, and that agents had counted some 313 plants, well over the 100 limit that Alden was charged with exceeding.
Alden tried to explain the issue to the jury. “You know why I was growing whether it was brought in evidence or not…”
“Objection sustained,” interjected Judge Jenkins, sternly warning that the jury must decide on the evidence actually presented.
Alden continued, “How could I be in violation of federal law if I’m in compliance…”
“Objection sustained.”
“The law is confusing,” mused Alden. “Can I say why I chose not to take the stand?”
“No, that is not evidence.”
Alden turned to the jury. “My contention is the evidence you have isn’t really evidence of a crime – no crime was committed that day. The truth lies in what wasn’t brought in…”
“Objection.”
The judge sternly reminded the jury to consider only the evidence presented, helpfully reminding them that “marijuana is a controlled substance in Schedule One.” The jury was young and looked frankly sympathetic to marijuana, but had hardly an inkling of what was transpiring. Their guilty verdict came as no surprise. Alden was convicted of manufacturing over 100 plants (a 4 – 5 year minimum). He is appealing to the Ninth Circuit.
The conviction was a tour de force for the government, coming as it did the day before Asa Hutchinson’s visit and the DEA’s raid in San Francisco. It will take some masterful defense lawyering to breach the iron curtain of federal law and present a real defense for future medical marijuana defendants.
POSTSCRIPT July 2002
Keith Alden was sentenced to 3 months in a federal halfway house plus 3 months’ home detention and 5 years probation thanks to various extenuating factors that downgraded his offense.
— Dale Gieringer, Cal NORML