JURY DELIBERATIONS TO BEGIN IN POT TRIAL

At Question Is Whether Petaluma Man Can Be Considered Caregiver To 1,280

A Sonoma County jury will begin deliberating this morning in a pivotal case
involving the distribution of medical marijuana, one of the issues left
unresolved when California voters approved pot for medical use five years ago.

The jury is being asked to determine if a Petaluma man who managed a San
Francisco marijuana buyers club qualified as a caregiver to a large number
of people -- 1,280 of them -- as the term caregiver is defined in the law.

The case also has political implications for Sonoma County District
Attorney Mike Mullins and his San Francisco counterpart, Terence Hallinan,
who have opposing views on buyers clubs and have been drawn into the trial.

Prosecutor Carla Claeys told jurors in closing arguments that the case is
"very, very important" and their decision could affect what will happen in
Sonoma County and around the state for years to come.

Defense attorney William Panzer said acquittal would send a message to
critics of Proposition 215, the initiative that allowed medical use of
marijuana with a doctor's approval.

"Send a message to Mr. Mullins," Panzer told jurors, adding they can send
another "next year, when he runs for re-election."

Panzer described defendants Kenneth E. Hayes and Michael S. Foley as
"people who are helping sick and dying people pursuant to Prop. 215."

Claeys portrayed Hayes as a man who profited by selling marijuana to the
club where he worked as executive director. She described Foley, his
co-worker and former roommate, as aiding and abetting him.

The prosecutor said Hayes had little time to care individually for the
1,280 people who went to the club to get marijuana.

"A primary caregiver is someone who consistently cares for another person
and knows what their needs are," Claeys said. "The law doesn't recognize a
buyer-seller relationship."

The seven-week trial took twice as long as Judge Robert Boyd estimated, and
by the time the prosecution and defense rested, jurors actually applauded.

It is the second Proposition 215 case to reach trial in Sonoma County this
year. Both dealt with issues left unsettled by the 1996 medical marijuana
initiative.

In the first, a jury acquitted a man who mounted a medical defense after
being charged with illegal cultivation of more than 100 marijuana plants.

That's more than prosecutors considered appropriate for a medical user, but
the law is silent on how much users may possess.

The current case involves another ambiguous aspect of Proposition 215: the
ability of caregivers to provide marijuana for medical users. The law
permits that, but provides no further details.

When he testified, Hayes acknowledged buying marijuana on the black market
for sale at the club, but Claeys said records seized at his house indicated
he was marking up the price.

She said scales, packaging materials, a pound of hashish, more than 15
pounds of processed marijuana, a .22 caliber rifle and $3,700 in cash taken
from the house were consistent with drug sales.

The defense said the cash was largely from money stashed by Hayes'
common-law wife and the rifle was used to guard the chickens from marauding
raccoons.

But the jury will have to make the distinction of whether Hayes was selling
marijuana, which is illegal, or recovering his expenses for the marijuana,
which courts have allowed caregivers to do.

"This is about money," Claeys told the jury, saying Proposition 215 "didn't
contemplate setting up a business around marijuana."

The prosecutor said the club kept sophisticated records of the number of
grams of marijuana it sold each day, but Hayes had no records of the cost
of his Petaluma marijuana farm and "testified off the top of his head as to
costs."

Over the course of the trial there was lengthy testimony about marijuana
cultivation, yields and varieties, as well as detailed analysis of the
costs of an 899-plant operation like Hayes had in his barn and six
greenhouses off King Road.

Members of Hayes' club testified and so did Hallinan.

In her closing argument, Claeys said Hallinan visited the club in the city
but knew little of what was happening in Petaluma.

"He may have been well intentioned," she said, "but he was uninformed and
somewhat ignorant."

In his closing argument, Panzer said the case was about "an incredible law
that changed the course of a mighty river of jurisprudence that had run
some 60 years" and allowed sick people to use marijuana without being
branded criminals.

He noted that Proposition 215 called for the state and federal governments
to develop a plan to provide for the safe and affordable distribution of
marijuana to patients in need, but "politicians have failed to do that."