POT ADVOCATE SOWS SEED OF DOUBT

Appeals court grants trial --indictment may have violated free-speech right

On the surface, the Hawaiian hemp bust looked like real chicken feed: In
1991, a grand jury on Hawaii's big island indicted Ernest Anderson for
possessing 25 pounds of birdseed that contained sterilized hemp. The grand
jury charged Anderson with promoting a detrimental drug -- marijuana.

The charges were eventually dismissed, however, and yesterday the U.S. Court
of Appeals in San Francisco ruled that the indictment may have violated
Anderson's constitutional rights.

In a 20-page decision, appeals Judges Susan Graber, John Noonan and Jerome
Farris ruled that the county prosecutor who sought the original indictment
may have known that a deputy in his office had submitted falsified evidence
in support of the charges, and had offered to dismiss the case if Anderson,
an advocate of legalizing marijuana, would stop writing letters about the
case to local newspapers.

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

According to the court's opinion, Anderson and another marijuana advocate,
Roger Christie, were indicted by a Hawaii County grand jury in 1991 for
purchasing 25 pounds of sterilized hemp seed.

Nobody else in the island's history had ever been charged with buying
sterilized hemp seed, a material that is often mixed with other vegetable
seeds and used as bird and hamster feed, and which is available commercially
in Hawaii from such public sources as Wal-Mart.

However, Christie and Anderson were active with the Hawaii Hemp Council, an
organization that advocates legalizing growing industrial hemp. Local
authorities saw their purchase of the material as part of their campaign to
legalize industrial hemp.

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,'' Deputy Prosecutor Kay Iopa told jurors when the
case came to trial in 1992.

To secure the indictment, the court opinion says, Iopa produced falsified
evidence that seeds seized from Christie and Anderson had germinated, when
they actually had not.

Later, as Anderson and Christie were awaiting trial, Iopa offered to drop
the charges against them if they would agree to stop writing letters about
the case to local newspapers.

Charges against Christie were dismissed in October 1995. Last year, the
charges against Anderson were dropped after the jury hearing the case
deadlocked.

Meanwhile, Anderson and Christie filed a civil suit in U.S. District Court
in Hawaii, claiming that Iopa and her boss, County Prosecutor Jay Kimura,
had violated their free speech rights.

In 1997, the U.S. District Court in Hawaii awarded a summary judgment to the
county and prosecutors, in effect dismissing the lawsuit. In yesterday's
ruling, the appeals court said the lower court's ruling against Christie had
been correct, but that Anderson had raised questions about Kimura's role in
the prosecution that made it necessary to take the case to trial.