BUTTE COUNTY'S ONLY MEDICAL MARIJUANA CONVICTION DISMISSED

OROVILLE - A judge Monday tossed out the only guilty verdict to be returned
so far in a Butte County medical-marijuana trial.

A jury last spring had acquitted the defendant, Michael Kelly, 22, of
Cherokee, of felony cultivation and sales, but convicted him of a
misdemeanor drug possession count.

Ruling the evidence did not support the verdict, Superior Court Judge
Robert Glusman dismissed the drug possession conviction Monday.

Ironically, Kelly had gone to court seeking a new trial on the misdemeanor
charge, which could have carried up to six months in jail.

"I think it was the correct result legally and morally," said defense
attorney Jodea Foster of Chico.

The only other medical-marijuana case to go to trial in Butte County had
ended in an acquittal two years ago.

That case involved 21 marijuana plants seized from Cohasset resident
Michael Rogers.

Sheriff's officers had raided Kelly's rural Cherokee property in February
2001, seizing a relatively small amount of dried and processed marijuana
from an outer shed.

Both local men raised an identical defense under Proposition 215, the 1996
California initiative allowing pot to be smoked for medicinal purposes with
a doctor's recommendation.

At Kelly's trial, a Berkeley psychiatrist testified he had prescribed pot
to help the Cherokee man alleviate an "obsessive compulsive disorder."

But deputy district attorney Kristen Lucena called the medical marijuana
recommendation "a sham" and a "cover" by the defendant to illegally sell
the drug to others.

In a strongly-worded response, Kelly's lawyer contended his client was
being made a "sacrificial lamb ... just because they (prosecutors) disagree
with this law and they want to decide who is sick and which doctor should
recommend (pot)."

Kelly's jury ultimately found he had the right to grow and smoke the drug
medicinally.

But they said afterwards a confusing legal instruction led them to convict
the Cherokee man of the misdemeanor possession charge because he was found
with more than an ounce of pot.

In his legal brief requesting a new trial, Kelly's attorney had asserted
the prosecution's own drug expert had largely conceded the amount of
processed marijuana seized from Kelly's residence "fell within permissible
limits for personal use."

Glusman, who was appointed to the local bench last year by Gov. Gray Davis,
threw out the misdemeanor drug conviction Monday, agreeing with the defense
that the jury verdict was "contrary to the evidence."