PICKETS OUSTED -- WHO GAVE ORDER?

Judge Denies Demanding The Protesters' Removal In The Latest Controversy In
A Medical Marijuana Case.

Questions have been raised about whether federal and local police violated
the constitutional rights of protesters near the Sacramento federal
courthouse by forcing them to disperse.

The action was taken Wednesday when medical marijuana activists handed out
pamphlets and held placards during jury selection in the trial of Bryan
James Epis.

Information disseminated by protesters earlier in the week had already led
to the dismissal of 42 prospective jurors by U.S. District Judge Frank C.
Damrell Jr.

Government lawyers in the criminal pot case and Damrell are concerned that
a jury selected Wednesday from a new pool will see the pickets critical of
federal marijuana prosecutions and the lengthy prison terms that go with them.

Someone ordered the protesters had to go. That order, and the question of
who issued it, are at the center of the controversy in a trial that has
been troubled from the start.

Representatives of the Sacramento Police Department and the demonstrators
said that officers of the Federal Protective Service -- a branch of the
General Services Administration, which maintains federal buildings -- told
them the dispersal was ordered by Damrell.

The judge denied having done so from the bench Thursday, which raises the
specter of the officers acting without authority.

"It is outrageous and personally offensive to me if any police officer
broke up a demonstration by invoking an order of the court that was never
given," said Charles Stevens in an interview Friday. Stevens is the former
U.S. attorney in Sacramento whose current private practice includes First
Amendment litigation.

"Something like that would cut against everything our system of justice
stands for," he said.

According to Sacramento Police Capt. Sam Somers, a city officer on the
scene was told by FPS officers that the judge had said the demonstrators'
actions were a detriment to the trial and that the city officer was needed
to help get them off the Fifth Street sidewalk.

The city officer asked about a court order, but federal police said there
wasn't one. However, they said dispersement was justified by a federal
statute, Somers related. The statute was then read to demonstrators, who
were told to leave, the captain said.

"We were basically in a facilitating role, not an enforcement role," Somers
said. "The protest was peaceful and cordial. There were no arrests."

GSA spokeswoman Esther Timberlake told a different story Friday. She said
FPS officers did not threaten arrests, as claimed by the demonstrators, and
were not acting at Damrell's direction.

Timberlake said a court security officer showed Damrell the medical
marijuana pamphlet being passed out by demonstrators and the judge said
they could not disseminate it. An FPS officer relayed that to the
demonstrators, she said. About 2 p.m. an assistant U.S. attorney brought a
copy of the statute to FPS officers and wanted it read to the
demonstrators, she added. She was unable to identify the assistant U.S.
attorney.

As federal officers approached the demonstrators, the Sacramento officer
was already shooing them off the sidewalk, Timberlake said.

Demonstration leader Aundre Speciale, a board member of the Sacramento
chapter of Americans for Safe Access, which supports medical marijuana use,
gave this version of Wednesday's events:

A court security officer and federal police officer told her roughly
10-member group that the judge would not tolerate dissemination of the
medical marijuana material, nor could they orally promote medical marijuana
to passers-by.

They complied, but about 2 p.m. a city police officer arrived and told
them, "I just got a call that the judge wants you out of here."

The officer was joined by five federal police officers. One of them
videotaped the demonstrators and another one -- at the direction of the
judge, he said -- read a statute that he said prohibited the demonstration.

The demonstrators were told if they returned Thursday to the same location,
they would be arrested.

Speciale said she asked if they could be two blocks from the courthouse,
and one of the federal officers replied, "That's up to the judge. If he
doesn't like what you're doing, you're going to jail."

Speciale said they haven't demonstrated since because they feared being
locked up. "We have jobs and children to care for," she said.

"I guess the lesson here is, there is no freedom of speech if a federal
judge says you don't have it."

When Damrell took the bench Thursday morning, he said, "The court has made
no orders regulating the pickets or signs or anything. They are free to
exercise their First Amendment rights." What prompted him to make the
unsolicited statement is unclear.

Late Wednesday afternoon, prosecutors asked Damrell to banish the picket
signs, claiming they violated a federal law barring attempts to influence
jurors. The prosecutors had earlier supplied the judge with surveillance
photographs of the demonstrators taken by federal officers on foot or in
cars circling the block.

The judge stopped short of issuing an order, but told defendant Epis and
lawyer J. Tony Serra that he will hold them responsible if the picketing
ultimately taints the jury. Damrell said he suspects Epis has some degree
of control over the demonstrators and suggested he use that influence to
discourage them from picketing.

Stephen Barnett, a professor and First Amendment scholar at the Boalt Hall
School of Law at the University of California, Berkeley, expressed concern
Friday about the way the protestors were handled.

"It sounds to me like there's a serious question whether the dispersal
order was constitutional," Barnett said. "I can't believe any courthouse
that has juries in it is off limits to demonstrators within sight of the
building. Their rights to freedom of expression would have to prevail.

"If, on the other hand, the demonstrators are effectively blocking egress
and ingress or are buttonholing jurors," Barnett said, "court officials
would have every right to prevent that."

Stevens said it is up to the government to seek other ways to ensure a fair
trial for both sides without infringing on demonstrators' rights.

"The fact that someone might think it would influence the jury doesn't mean
people couldn't demonstrate against the death penalty outside a courthouse
where a capital trial was in progress," he said.

Terry Francke, general counsel of the California First Amendment coalition,
said if a demonstration focuses selectively on jurors or prospective
jurors, "and is uniquely designed to influence them," official intervention
could be warranted.

"But," he said, "the notion that a protest cannot take place anywhere near
a courthouse has no foundation in law."

Meanwhile, some doubt has been cast over the trial's legitimacy because
Epis, who was associated with a medical marijuana dispensary in Chico, has
never been arraigned on the conspiracy and cultivation charges. Damrell
will take up that snafu in a hearing Monday.