APPEALS COURT RULES IN FAVOR OF POT ADVOCATE

Deputy prosecutor gave grand jury false evidence, judges say

Did Hawaii County Prosecutor Jay Kimura know that his deputy was violating
Aaron Anderson's rights when she prosecuted him for possession of marijuana
in 1991?

That would be the main question if a lawsuit filed against the county
prosecutors comes back to Hawai'i, according to an Appeals Court ruling in
San Francisco Tuesday.

The three-judge panel reversed a lower court decision and ruled in favor of
Anderson, saying that former Deputy Prosecutor Kay Iopa gave a grand jury
false evidence to indict him and then tried to silence him in a plea
agreement.

Anderson, an outspoken marijuana advocate and frequent candidate for
political office on the Big Island, sued Kimura, Iopa and the County of
Hawaii in 1995 for prosecuting him on a felony charge of second-degree
promotion of a detrimental drug.

Anderson and fellow advocate Roger Christie, also a plaintiff in the federal
lawsuit, had been arrested in 1991 for receiving a 25-pound mail order
package of supposedly sterile hemp seeds, which they said they would use in
food products.

Anderson and Christie alledged that they were prosecuted for possession of
the seeds because they are vocal supporters of legalizing marijuana.

Iopa sought grand jury indictments against Anderson and Christie in January
1992, "at least in part because of their advocacy for the legalization of
marijuana," according to the appeals court ruling.

When somebody known as a potential marijuana grower buys 25 pounds of hemp
seed, the purchase "is very vocally, very outwardly advocating the
legalization of marijuana," Iopa told jurors when the case came to trial in
1992.

But to obtain the indictment, Iopa presented false evidence that Anderson
and Christie's hemp seeds had germinated when tested, wrote Judge Susan
Graber for the appeals panel.

"After obtaining the indictment, Iopa offered to enter into a plea
agreement..., However, Iopa refused to negotiate unless (Anderson and
Christie) agreed to not write any more letters to the newspaper about the
case," Graber wrote.

The criminal charge against Christie was dropped in 1995. Anderson went to
trial on the drug-possession charge last year, but it ended in a mistrial
with a deadlocked jury. Prosecutors wanted a retrial, but last fall the
case was dismissed by Circuit Court Judge Greg Nakamura.

Christie and Anderson filed their civil rights lawsuit in 1995 alleging that
Kimura, Iopa, and Hawaii County had violated their rights to speak freely,
to petition the government and to be free from government oppression.

The county argued that it wasn't legally responsible for Iopa's alleged
violations, and the case was essentially dismissed on that basis by U.S
District Court Judge David Ezra.

Ezra's ruling was appealed on behalf of the plaintiffs by Hilo attorney
Steven D. Strauss. In Tuesday's ruling, the appeals court said Anderson had
raised enough questions about Kimura's role in the prosecution to take the
case to trial. The judges cited evidence that Kimura knew of Iopa's alleged
ongoing constitutional violations and either approved of, or was
"deliberately indifferent" to them.

The judges ruled that the lawsuit should go to trial in Hawaii in order to
determine whether the county is liable for cash damages for violating
Anderson's constitutionally protected right to free speech.

The ruling only pertained to Anderson., not Christie, however, because
Christie's criminal case had been dismissed before the civil case was filed.

Also at issue is whether or not the seeds police took as evidence from
Anderson and Christie were actually sterilized.

Strauss said Thursday that a report by the Hawaii State Department of
Agriculture indicated "zero germination" from Anderson's seeds, and that
some "abnormal" seeds had cracked open but could not continue growing into
plants.

Kimura insisted Thursday that police had actually germinated some of the
seeds and that the University of Hawaii experts who tested the batch have a
higher standard for the definition of germination that police and
prosecutors.

Hawaii County police Detective Dennis DeMorales testified at Anderson's
trial that police grew 11 plants up to eight inches tall from Anderson's
batch of supposedly sterile seeds. Kimura said he did not see those plants,
nor were there any photographs of them, but that there were "some storage
problems" that could have affected the seeds tested later by state
agriculture officials.

Anderson and Christie were the first arrests in Hawaii County for possession
of commercially sterilized hemp seeds, which are sold at Wal-Mart and
Miranda Country Store in Hilo. Anderson and Christie also alleged that
others in possession of similar seeds were known to prosecutors but not
prosecuted.

In reversing the District Court's decision, the appeals panel held that
while the county is not liable for Iopa's actions , Anderson had provided
enough evidence to show that Kimura, "a person with final policymaking
authority, knew of Iopa's alleged ongoing constitutional violations and
...approved of thse violations or was deliberatey indifferent to them."

Strauss said that if Kimura did not know what Iopa was doing with the case,
he should have, and that the Ninth Circuit's ruling Tuesday "could cause
grief for prosecutors all over the country."

Kimura said Thursday that he will recommend an appeal of Tuesday's ruling to
the U.S. Supreme Court. Short of that, the county could request a review of
the ruling by all Ninth Circuit Court judges first. "We have a few
options," he said.

County Corporation Council Steve Christiansen said Thursday that the
judicial review option is rarely sought or granted. He said the county
might either allow the case to return to trial in District Court, which
could take several more years to resolve through the appeals process, or
seek an out-of-court settlement with Anderson.

"We're looking at all our options," he said.

Iopa resigned from her job as deputy prosecutor in December after a Circuit
Court judge found that she had "misrepresented information" regarding
evidence to the court on two occassions that led to a mistrial in a
high-profile murder case.

Iopa is now in private practice and working as a court-appointed public
defender. She did not return a telephone call to her office seeking comment
on the ruling.

Also on the three-judge federal appeals panel were Jerome Farris and John T.
Noonan.