JUDGE: MEDICAL POT TRIAL CAN GO ON DESPITE REMARKS BY WITNESS

A mistrial was averted Monday in a high-profile medical marijuana
case after the judge decided jurors could be fair despite hearing
improper testimony that cast the prosecutor in an unfavorable light.

After polling all 12 jurors and three alternates individually in his
chambers, Sonoma County Judge Robert Boyd determined the trial could
proceed for Kenneth E. Hayes and Michael S. Foley. The two men helped
run a San Francisco cannabis buyers club formed after voters approved
the use of medicinal marijuana.

The two defendants were praised by San Francisco officials for their
work with sick people.

In Sonoma County they are facing felony charges of marijuana
cultivation and possession for sale in connection with an 899-plant
operation in Petaluma that also included more than 14 pounds of
processed marijuana and a pound of hashish.

Last week, the judge suspended proceedings and threatened to declare
a mistrial following unsolicited testimony from defense witness Dan
Wathen, a medical marijuana patient who volunteered information about
his past legal woes with prosecutor Carla Claeys.

Claeys, who is attempting to prove that Hayes and Foley profited from
illegal sales at the Petaluma residence, prosecuted Wathen for
possession of two pounds of marijuana before eventually dropping
charges last year.

Wathen testified "my physician at the time seemed to -- he did an
about face on my recommendation after he met with the people that
Carla sent there, and he went from approving my medical use to not
approving my medical use."

=46ollowing Wathen's testimony, Claeys strongly objected outside the
presence of the jury, saying she was ambushed by the defense because
Wathen suggested she was unfair and unjust and persuaded his doctor
to change his testimony.

Claeys said that in fact she decided to dismiss charges after the
doctor testified he orally recommended Wathen use marijuana for his
headaches.

But Claeys last week also dropped her motion for a mistrial after
noting such a move by the prosecution could bar the defendants from
being re-tried.

Defense attorneys William Panzer and Nicole DeFever noted that the
judge did not find the defense did anything wrong. In their court
brief opposing a mistrial, they said they suspected Claeys was
"inviting the court to declare a mistrial to avoid the embarrassment
of losing this politically charged prosecution=8A the People will then
be in a position to blame the failed prosecution on the Courts rather
than shoulder the responsibility for yet another unpopular medical
marijuana prosecution in Sonoma County."

Judge Boyd on Monday struck Wathen's testimony about his prior
experience with Claeys and his criminal case. He said he will
instruct jurors to disregard it.

Boyd noted the constant legal sparring that has gone on in the trial
- - now in its fifth week since jury selection began.

"This has been a very contentious litigation," he said.

The legal jousting continued Monday over what a defense expert on
marijuana buyers clubs should be allowed to testify to. Claeys said
for the witness to talk about the social benefits of cannabis clubs
falls outside the issues in the case.

But Panzer said the two defendants provided more than marijuana to
the 1280 members they served, most of whom are HIV-positive or have
AIDS.

He said the classes and free dinners they helped put on were part of
their role as caregivers.

One member of the cannabis club, Sakinah Abdullah, who uses marijuana
to alleviate arthritic pain in her hip and muscle spasms, said she
would get free marijuana there when she couldn't afford it. She said
the club was a place where she didn't feel ashamed and could receive
support that she didn't get from her family or church.