NEW TRIAL SOUGHT IN MEDICAL MARIJUANA CASE

OROVILLE - The defense lawyer in Butte County's second medical marijuana
case said Monday he will ask for a new trial on grounds that the jurors
were misled.

Sentencing was postponed Monday for Michael Kelly, 22, of Cherokee, so his
attorney can file appropriate motions

Last Friday a Butte County Superior Court jury acquitted Kelly of
cultivation and possession for sale of marijuana, but found him guilty of a
lesser misdemeanor pot possession count.

His lawyer, Jodea Foster, claims the court erred by not allowing the jury
to examine the district attorney's own prosecution guidelines in local
medical marijuana cases.

Foster said outside of court Monday that based on discussions with at least
one juror, had the jury known about the district attorney's current policy
of not prosecuting persons with less than a pound of pot with a doctor's
recommendation, Kelly would likely have been acquitted on all counts.

Sentencing in the case has been postponed until June 30, to give the
defense attorney time to file a new trial motion. Kelly faces a maximum of
six months in jail if the marijuana possession charge stands.

Deputy district attorney Kristen Lucena declined to comment on the issue
until the defense emotion is actually filed.

Sheriff's deputies testified last week they seized an estimated 1.2 pounds
of processed marijuana from a concealed grow room in an outer shed on
Kelly's property near Cherokee in February 2001.

But a defense expert contended that if the stalks and stems were removed,
there was only about a half-pound of "legal" marijuana seized.

A Gridley juror told the Enterprise-Record after the trial that she doubted
Kelly would have been convicted of the misdemeanor possession count had the
jury known of the district attorney's one-pound minimum prosecution policy.

Over the defense objections, Superior Court Judge Robert Glusman had
refused to put the local guidelines into evidence.

The prosecution argued they were irrelevant because the law enforcement
limits in medical-marijuana cases were not in place at the time of Kelly's
bust.

In asking the court to grant the Cherokee man a new trial on the
misdemeanor charge, his lawyer said Monday he will argue that by its
verdict, the jury found that Kelly had the right to grow and smoke pot with
a doctor's recommendation under the 1996-voter-approved initiative,
Proposition 215.

The only question was how much of the drug he could possess at one time,
which makes the district attorney's prosecution guidelines relevant, Foster
contends.

If the judge ultimately denies Kelly a new trial, the Chico attorney said
he will ask for a stay of the sentence pending an appeal to a higher court.

The Cherokee man said that the case has cost him more than $4,000 in
attorney fees and 28 lost days from work so far.

He came to court Monday with a letter from his employer, Amanda Beth Pyle,
urging the judge to show leniency in the case.

"It's already cost him considerable time, worry and money," the local land
developer wrote. "As a taxpayer, I'd like to see my money fight real
crime," added the defendant's employer.