JUDGE THROWS OUT CHARGES TIED TO ALLEGED POT TRAFFICKING

WAILUKU - Saying there was a flaw in the procedure used to obtain a
grand jury indictment, 2nd Circuit Judge Joseph Cardoza dismissed
charges Thursday against six defendants in an alleged marijuana
trafficking operation tied to a Paia-based medical marijuana advocacy group.

"This ruling is not an attempt by the court to rewrite the medical
marijuana laws in the state of Hawaii," Cardoza said. "This is not a
ruling on the merits of anyone's case.

"The court concludes that the procedure followed before the grand
jury was flawed. Dismissal without prejudice is warranted."

Because the dismissal was without prejudice, the prosecution could
again seek an indictment in the case.

Deputy Prosecutor Timothy Tate said that will be done.

The defendants were among seven people arrested in November 2008 as
part of "Operation Weedkiller." Police reported seizing hundreds of
marijuana plants and clones, processed and unprocessed marijuana,
drug paraphernalia, cash and a vehicle during a two-year investigation.

The probe centered on the medical marijuana advocacy group Patients
Without Time, which police said exploited medical marijuana laws to
sell the drug to hundreds of people.

Those arrested included [name redacted], 53, who founded and heads
the group; [name redacted], 31, of Makawao; [name redacted], 48, of
Wailuku; [name redacted], 48, of Haiku; [name redacted], 40, of
Kihei; and [name redacted], 58, of Wailuku. All had pleaded not
guilty to criminal conspiracy, with some of the defendants facing
additional drug charges as well.

Wailuku attorney Ben Lowenthal, representing [name redacted], filed
the motion seeking the dismissal of charges, with the other
defendants joining in.

At issue was the grand jury testimony of Keith Kamita, chief of the
state Narcotics Enforcement Division, who administers Hawaii's
medical marijuana law. Lowenthal said Kamita provided a "misleading"
legal opinion.

In addition to explaining how the medical marijuana program works,
Kamita testified about some of the defendants' participation in the
program. "This is a very fair proceeding," Tate said. "Due process
was not violated at all."

He said the only error was Kamita's testimony that [name redacted]
did not have a valid medical marijuana card at the time.

Because of that testimony, attorney Chris Dunn said his client [name
redacted] was prejudiced by being "portrayed as a complete scofflaw."

[name redacted] did have an active card, Tate said. But he said that
in two raids, police found [name redacted] with "pounds of marijuana,
well in excess of the statutes" limiting the amount of marijuana that
a patient can have.

Cardoza said transcripts of the grand jury hearing indicate that
Kamita was asked "30 or more questions" that might be considered
questions of law.

After Tate asked Kamita questions, including requirements for
obtaining a medical marijuana permit and limits on amounts, grand
jurors also began asking Kamita questions relating to the law, Cardoza said.

"We have a witness uniquely qualified to talk about how the medical
marijuana laws work in this state," Cardoza said. "There are a number
of questions that are purely questions of law that could have and
should have been answered by the grand jury counsel."

He said grand jurors' legal questions should be directed to the grand
jury counsel, who under Hawaii law is assigned to receive such
questions, conduct legal research and provide appropriate answers.

"This court can't put a stamp of approval on using a witness to
fulfill that role," Cardoza said.

"The Hawaii Constitution provides grand jurors with their own
counsel," Lowenthal said after the judge's decision. "The ruling
today reaffirms the constitutional requirement that legal questions
are to be addressed to independent counsel, that legal research is to
be conducted by that counsel and that legal answers are to be
provided by the legal counsel."

Said attorney William Sloper, representing [name redacted]: "We're
happy that the judge saw that the government abused its role in the
grand jury proceedings."

Attorney Anthony Vierra, representing [name redacted], commended the
judge "for making the difficult, but correct choice in finding that
the grand jury was provided, and relied upon, legal advice by someone
other than their own counsel, which is contrary to law."

"In these times of over-the-top conservative rush to provide security
at any cost - most often liberty - the people of Maui and the state
can sleep a little better knowing that their constitutional rights
are being guarded and protected, no matter how unpopular it may
seem," Vierra said. "Given the ease that the crackpots equate being
'soft on crime' is with being unpatriotic, it takes a great deal of
courage to the the right thing. The court did leave the door open for
refiling of the charges if the prosecutors can do so without
violating the law."

Murphy said that Patients Without Time continues to provide
information, referrals and consulting services to medical marijuana patients.

"We never sold over 3 ounces," he said after the hearing. "Hopefully,
now the prosecutor will see that the law needs to be redefined."

A seventh defendant, [name redacted], 55, was placed on one year's
probation and ordered to pay a $300 fine after pleading no contest to
a reduced charge of criminal conspiracy in the case.