TWO VIEWS OF DEFENDANT IN MEDICAL MARIJUANA TRIAL

Grower Portrayed As Saintly, Criminal

Sonoma -- In a pivotal medical marijuana case unfolding in Sonoma County,
defendant Kenneth E. Hayes has been portrayed by his attorneys as a
compassionate man who earned just $30,000 a year, worked long hours for a
noble cause and made free home deliveries for sickly people.

Under grilling by the prosecution, however, Hayes was painted as a director
who kept sloppy records for a San Francisco buyer's club, consorted with
black-market suppliers and steeply marked up the price of the weed he grew.

Those two portrayals have clashed all week, and Hayes was visibly weary
yesterday, his fifth day on the witness stand. The case is the first one in
the state since the November 1996 passage of Proposition 215 to put pot
suppliers to cannabis clubs on trial.

Hayes and co-defendant Michael S. Foley face felony charges for marijuana
cultivation and possession for sale following a May 14, 1999, bust at a
rented Petaluma farm, where 899 plants, hashish and a rifle were discovered
by sheriff's deputies. If convicted, they each face a maximum penalty of
three years in state prison.

Hayes is the former executive director of CHAMP -- Cannabis Helping
Alleviate Medical Problems -- and Foley managed the dispensary of the San
Francisco club. Medical marijuana advocates say pot helps alleviate the
effects of chemotherapy and promotes appetite in cancer and AIDS patients.

If the two men are convicted, the case could have political reverberations.
Medical marijuana advocates have already succeeded in forcing Marin
District Attorney Paula Kamena into a recall election, saying she has been
too aggressive in pot-related cases. Advocates have four other county
prosecutors, including Sonoma's, in their sights.

"I think it is a clumsy attempt to intimidate officials into not enforcing
the marijuana laws at all," Sonoma County District Attorney Michael Mullins
said of the recall effort. "But I'm going to do my job, period."

On the stand this week, Hayes vigorously defended his cultivation of
cannabis for the club, saying his efforts lowered the costs and ensured
quality, pesticide-free "medicine."

"I believed what I was doing was legal," Hayes said. "We were forced to
grow inside because we've got some rogue D.A.'s who are preventing us from
growing outside."

Although Hayes testified he had the support of law enforcers in Marin and
San Francisco, he chose not to tell authorities in Sonoma County, which has
a history of hard-nosed prosecution of medical marijuana cases.

To win a conviction, Sonoma County prosecutor Carla Claeys must convince
the jury that the defendants were selling marijuana for nonmedical purposes
and that he was not the club members' primary caregiver, as he claims.
Under Proposition 215, which repealed state criminal penalties for the
medical use of marijuana, primary caregivers are allowed to cultivate and
possess marijuana for their charges.

Hayes said he had vendors who would place cannabis with him on consignment:
they would leave the dope with him, and they would not receive any money
until it was purchased by a patient.

Claeys described that as "sales" with "black market vendors" -- who, she
said, always used aliases.

Her use of the term "sales" brought repeated objections from Hayes'
attorney, Oakland defense lawyer and Proposition 15 co-author William
Panzer, who pointed out that the statute allowed Hayes to be reimbursed for
the operational costs at CHAMP.

But Claeys said that because of Hayes' lack of receipts for his "Petaluma
grow," he was the only one who could keep track of those costs -- implying
that it would have been easy for him to make his own deals on the side.

She has also repeatedly mentioned the $3,300 in cash found stashed in a
linen closet and the bags of weed strewn about the rural Petaluma house.

She tried to chip away at Hayes' credibility by eliciting testimony from
him that he wasn't planning on growing marijuana when he moved to Petaluma
in 1998. That done, she had him read aloud several receipts for pot-growing
equipment purchased before he moved -- which shows, she said, his true
intentions.

Hayes said of his trips to the Petaluma hardware stores that "right from
the get-go, there were (CHAMP) patients who wanted to grow their own
medicine. It wasn't uncommon for me to make purchases for them."

Claeys has also insisted that it is next-to-impossible for Hayes to be the
primary caregiver for all the club's 1,280 members. She pointed out that
none of them listed him on the club's medical form as their primary
caregiver and that he failed to provide "consistent care," calculating that
he spent an average of 1.625 hours per member each year.

Hayes countered that the names listed on the patient forms were friends,
neighbors and community members who offered social support.

"The purpose of this caregiver line," he said, "was so we would have
additional resources available to us."

At one point, Panzer asked Hayes whether he would repeat his activities,
both as CHAMP's director and growing cannabis for its members.

Growing teary in his response, Hayes said, "From where I sit now, hard as
it is, I would do it, because there are still people who are sick and dying."