WHY POT PROSECUTORS BACKED AWAY

Prosecutors never like to fold, but a bad hand forced them this week to
throw down their cards and walk away from their 2-year-old criminal case
against Peter Baez, the leader of Santa Clara County's medicinal marijuana
movement.

Battered by a series of adverse decisions in the local courts, the Santa
Clara County District Attorney's Office had to drastically soften its
position against Baez by the time a deal was reached late Thursday in the
hallways of a Palo Alto courthouse.

In the end, prosecutors were left with little to show for going after Baez,
who originally was charged with eight felony counts of running a drug house
and grand-theft allegations involving the local housing authority.

Baez pleaded no contest to one misdemeanor, will serve no jail time, and
will pay a $100 fine. While his case finally is resolved, it remains to be
seen how long it will take for local law enforcement to repair relations
with supporters of providing medicinal marijuana in Santa Clara County who
viewed the Baez prosecution as a heavy-handed attack on the movement.

Even Baez, while relieved at the outcome, has mixed feelings about getting
such a favorable settlement.

"I don't think either side won," the 36-year-old Baez said Friday. "They
proved a point and I proved a point. So we're both at zero."

As for the future of medicinal marijuana in Santa Clara County, Baez said
he has been told by supporters that they were awaiting the outcome of his
case before deciding whether to risk another try at a medicinal pot center
in San Jose.

"From what I'm gathering, I think something will happen pretty soon," he
said. "But there is no way Peter Baez is getting involved in this again."

Meanwhile, Assistant District Attorney Karyn Sinunu, who said Baez's
failing health was a factor in the leniency of the deal, maintained the
outcome was consistent with the goal of the case. She also said that Baez
must repay any money he owes the housing authority and forfeit $7,000 of
the $29,000 seized from the marijuana center at the time of the arrest.

Clean up or shut up

"We never said we expected prison from this case -- that would not have
been appropriate," Sinunu said. "We got what we needed and the difference
between a felony and a misdemeanor doesn't matter. What was important was
that the (pot center) either clean up or shut down. It didn't clean up and
it did shut down."

Baez had been executive director of the Santa Clara County Medical Cannabis
Center, which provided marijuana to AIDS and cancer patients for about a
year until it was closed after his arrest in May 1998. The center
originally operated with the blessing of the DA's office and other local
officials, but then Baez was charged with illegally selling marijuana from
the center and violating city regulations governing the verification of
doctors' prescriptions for pot.

Lawyers on both sides of the case say the outlines of a plea agreement have
been in place for months. But the ground shifted in the case in recent
weeks as the district attorney's office has taken a pounding on some legal
issues in both the local trial courts and in the normally
prosecutor-friendly 6th District Court of Appeal in San Jose.

The plea terms for Baez were reached in a series of discussions late
Thursday. But prosecutors essentially were forced to capitulate to
everything Baez and his lawyers wanted a week ago, when a Superior Court
judge tossed the high-profile criminal trade secrets case against the
Avant! Corp. and its top executives because of flaws in local grand jury
proceedings.

The same flaws also plagued a number of major criminal cases, including
several murder prosecutions and the Baez case. Recognizing the Avant!
ruling would carry weight in other local cases, prosecutors realized they
might spend another year or two bogged down in prosecuting Baez -- a man
stricken with life-threatening cancer who already was becoming something of
a martyr for advocates of medicinal marijuana.

The stock market reacted to the Avant! ruling, and so did the prosecutors
responsible for the Baez case.

"You have to play the hand you are dealt," said Deputy District Attorney
Rob Baker, who prosecuted Baez. "The decision in the Avant! case was the
precipitating event that led to this result. I viewed this case very
differently just one week ago."

Selective prosecution

Baez's defense lawyers also believe another recent decision by the 6th
District pushed prosecutors to abandon their long-standing demand that Baez
plead guilty to at least one felony. The appeals court recently ruled that
Baez could pursue allegations of selective prosecution, which could have
added delay to the case and forced the DA's office to expose inner
deliberations about their investigation. Baez maintained that prosecutors
tacked on some charges against him because of his role as head of the
marijuana club.

"What pushed them to the edge was the double whammy of (the Avant! ruling
and the selective prosecution ruling)," said Palo Alto attorney Tom Nolan.
"The case was going to drag on for another two years. It didn't have that
kind of value."

Sinunu and Baker downplayed the importance of the selective prosecution
issue, saying the grand jury problem was a larger obstacle in the Baez
case. In fact, Santa Clara County prosecutors face the dismissal of a
number of major cases as a result of the fallout from an 8-year-old policy
of ordering court reporters in grand jury proceedings not to transcribe
discussions between prosecutors and grand jurors.

The appeals court recently found in five separate cases, including the
Avant! and Baez cases, that prosecutors are obligated to turn over such
communications to defense lawyers. But Santa Clara County cannot comply
with the order because of the policy, prompting arguments that indictments
have been tainted by due-process violations. The indictments include a
number of murder cases, such as one against Scott Davis, a San Jose man
charged with killing four people in a car accident near Morgan Hill in 1998.

The cases can be refiled if they are dismissed, which is expected in the
Avant! prosecution.

But Sinunu concedes the legal wrangling will cause considerable delay in
getting cases through the system.

Contact Howard Mintz at hmintz@sjmercury.com or (408) 286-0236.