BUTTE'S FIRST MEDICAL MARIJUANA TRIAL GETS GOING

OROVILLE - Jury selection got under way Wednesday in what is being touted
as the first medical marijuana trial in Butte County.

Joseph "Mike" Rogers, 40, of Cohasset claimed when he was arrested in the
summer of 1999 with about two dozen small pot plants, he was attempting to
"clone" them so other medical-marijuana users in the area could grow their
own pot.

He says he is looking forward to the trial if only to demonstrate that
while the 1996 voter-approved initiative, Proposition 215, permitted
smoking marijuana in California with a doctor's recommendation, it provided
no legal way for the sick to obtain the drug.

Prosecutors point to a flier with Rogers' telephone number on it offering
to sell an exotic variety of pot plant for "$10 and up" as proof he was in
the business of "distributing" marijuana for profit.

Deputy district attorney Clare Keithley said outside of court that she will
attempt to tie Rogers to some 178 marijuana seedlings found at the Paradise
home of Roger Chambers and Susan Spangler the same day as Rogers' arrest.

Pot sales and cultivation charges against the ridge pair were dismissed
last year after a judge ruled that the fact their telephone number was on
the same promotional flier was not sufficient grounds for sheriff's
deputies to search their trailer.

The ruling did not affect Rogers, however, because the Cohasset man had
given officers permission to search his property prior to his arrest.

Rogers, who says he takes marijuana for pain associated with a crippling
spinal injury he sustained in a college wrestling match, said he had
invited the officers to his property to discuss ways he could legally start
up a medical marijuana co-op in the area.

He had gone on TV and even taken out ads in a local newspaper publicizing
his fledgling co-op. But he claims he was busted before he could get it up
and running.

Prosecutors point out only a so-called "primary care giver," who has direct
responsibility for a patient's housing and safety, can legally furnish them
with marijuana under Prop. 215.

A judge has already ruled that Rogers did not fit the legal definition of a
primary care giver and has barred any mention of co-ops at his trial.

Kevin Sears, the Cohasset man's attorney, said that forces him to try to
convince the Butte County Superior Court jury that the two dozen marijuana
plants found at Rogers' home, was for "personal use."

"There is no law saying how many plants a person can have; it's one of the
biggest problems with Prop. 215," the defense attorney notes.

Rogers said he is heartened by a recent jury acquittal of two men in Sonoma
County, who were found growing and supplying hundreds of pot plants for a
Bay Area medical marijuana co-op.

After the verdict, the Sonoma County District Attorney established new
guidelines, permitting medical marijuana users to grow up to 99 pot plants
per year, as long as the yield didn't exceed three pounds.

By contrast, Butte County authorities have set about a five-to 10- plant
medical marijuana limit per patient, depending on size and weight.

Sears said before testimony begins on Monday, he will ask the judge to bar
any mention of the 178 seedlings found at Spangler's and Chambers' trailer
in Paradise.

"I don't believe the prosecution can prove that Mr. Rogers had any
connection with those plants," said the defense attorney.

Keithley said she would attempt to tie Rogers to the larger grove by the
flier, statements he made to sheriff's officers and "physical similarities
between the two sets of plants."

"I feel the evidence supports our theory that (Rogers) was cloning
marijuana to furnish it to others when he was not the primary care giver,"
said the prosecutor.

The defense indicated it will oppose the prosecution's plant "similarity"
claim without some scientific evidence to support it

Among those scheduled to testify for the defense is Dr. Stephen Bannister,
the Grass Valley physician who authorized Rogers to use marijuana.

The Nevada County physician and Berkeley psychiatrist Dr. Ted Mikuriya
currently approve the majority of medical-marijuana recommendations in
Northern California.

Bannister is now under fire with a state medical board, according to
Rogers. He sees the attack on the doctor another effort by the government
to usurp the will of the people that passed Prop. 215.

Rogers said he offered to waive his Fourth Amendment rights by allowing
officers to search his home without a warrant in exchange for the charges
against him being dismissed.

But Keithley, who is prosecuting the case, said that offer was virtually
"unenforceable."

The local prosecutor has offered to let Rogers plead guilty to what is
called a "wobbler" offense, that would allow him later to ask the court to
reduce it from a felony to a misdemeanor.

But the accused pot grower said he would rather risk jail than plead guilty
to something that he believes is wholly legal.

"The way things are now, either Butte County is going to have to recognize
the law (Prop 215), or the people are going to have to break the law for
others to take advantage of it," he says.

"It's been five years since the law was passed and the issue over access to
marijuana is still not resolved, while the illegal market is as strong as
ever," observed the defendant.