LEGAL GAFFE NO BARRIER TO POT TRIAL

Though no arraignment was held, the case can go on, the judge says.

A Sacramento federal judge decided Monday that the marijuana-growing trial
of Bryan James Epis will continue, even though he has not entered a plea.

U.S. District Judge Frank C. Damrell Jr. ruled that the lack of an
arraignment did not prejudice Epis because he and his attorneys knew of the
grand jury indictment that replaced one with essentially the same charges,
to which he pleaded not guilty.

Defense lawyers and the prosecutor blamed each other for the procedural
mix-up but, without fixing blame, Damrell denied a defense motion to dismiss.

"If there ever was a good definition of harmless error, this is it,"
Damrell found. "It is clearly not prejudicial to Mr. Epis."

The judge then moved on to a subject that won't go away in this trial --
people outside the courthouse expressing support for the medicinal use of
marijuana.

The federal government, unlike California, does not recognize medical
necessity as a defense in a criminal prosecution, and Assistant U.S.
Attorney Samuel Wong contends the 35-year-old Epis, charged with growing at
least 100 plants, was motivated strictly by profit.

Epis, on the other hand, insists he was cultivating pot for sick people who
were patients at a Chico dispensary that he helped establish.

Fermin "Ed" Aldana, an Esparto pot grower, handed a small flier to people
approaching the courthouse Monday morning. It was titled "Americans for
Safe Access," which is a pro-medical-marijuana organization whose members
ran afoul of federal authorities Wednesday for handing out a pamphlet and
picketing outside the building.

A drawing of a marijuana leaf on Monday's flier and information about the
time and place of ASA meetings were marked over with a black pen and the
word "censored" was printed at the bottom of the sheet.

Damrell said he had received a copy of the flier and resented the
implication that he was somehow infringing on the rights of the protesters.

He reiterated a statement made from the bench Thursday that he has issued
no orders curtailing their activities.

"Their First Amendment rights are inviolate," he noted.

He added, however, that both sides in the case "also have a right to a fair
trial. They can picket. The law is well established that that is a
constitutional right, but they cannot do anything to influence the jury, no
matter how well-meaning.

"This jury will not be tampered with by anyone outside this courthouse, if
I have anything to do with it. The case will be decided on the evidence and
the law, and not by something jurors read in a handout or see on a picket
sign."

Felony cultivation charges against Aldana were dismissed by a Yolo Superior
Court judge in April after it was shown at a preliminary hearing that his
50 marijuana plants were for people with a doctor's recommendation, in
conformance with a 1996 California initiative.

After the Monday morning hearing broke up, Mike Rogers was detained by two
drug agents because of the T-shirt he was wearing in court. While the
agents were chasing Rogers down, Wong asked that Damrell return to the
bench, and then told the judge the shirt bears the message, "No Justice."

Damrell banned clothing with such messages from the courtroom while the
jury is present.

"I'm going to do all I can to keep (the jurors) from being exposed to any
propaganda," he declared.

In the courthouse hallway, Wong directed the agents to release Rogers but
informed him that he may not wear the shirt in the courtroom.

After the lunch break, defense lawyer J. Tony Serra produced the shirt,
which Rogers had shed, to show the judge that it does not bear the message
described by Wong. In fact, nowhere on the shirt are the words "no" or
"justice."

Wong apologized to Damrell, saying he had been erroneously informed.

The front of the black shirt has the logo of the National Lawyers' Guild --
the scales of justice with the initials "NLG" superimposed on them. Under
the logo is a pledge of purpose: "To the end that human rights should be
more sacred than property interests."

In the 1950s and 1960s, the FBI designated the guild a subversive,
communist-infiltrated organization and, on the back of Rogers' shirt is the
late FBI Director J. Edgar Hoover's famous statement: "The National
Lawyers' Guild is more dangerous than the people throwing the bombs."

Rogers is one of four representatives of the Butte Alliance for Medical
Marijuana who attended Monday's hearing.

Once it was determined that the shirt didn't appear to be a jury-tampering
tool, the jurors were brought into the courtroom, and testimony from the
government's first witness resumed.

The trial has been dogged by controversy from the start and has drawn
national attention.

It is the first federal criminal case involving a cannabis buyers' club to
get to a jury, although Damrell has ruled Epis may not invoke a medical
defense.

Information disseminated by protesters early last week led to the dismissal
of 42 prospective jurors by Damrell. When a jury was selected from a new
pool Wednesday, Wong asked the judge to ban pickets from the Fifth Street
sidewalk across from the courthouse.

Damrell did not order the protestors removed, but he warned Epis and Serra
they would be held responsible if the signs targeting federal pot
prosecutions and the lengthy prison terms that go with them ultimately
taint the jury.

Ironically, the pickets had been dispersed earlier Wednesday afternoon,
three hours before the matter was argued in court.

Sacramento police say they were told by officers of the Federal Protective
Service that it was done at Damrell's direction. A spokeswoman for the
General Services Administration, parent agency of FPS, said a city officer
dispersed the pickets. A spokeswoman for the protesters said the group was
shooed off the sidewalk by federal police and the city officer, all of whom
said they were acting at the judge's direction.

The trial will resume today.