DA CALLS JUDGE'S ORDER A 'JOKE': PROPOSAL SAYS CONCOW-AREA COLLECTIVE
MEMBERS SHOULD GET THEIR MEDICAL POT BACK

OROVILLE -- Prosecutors said they are treating as a "joke" a proposed
court order to return hundreds of seized medical marijuana plants to
members of a Concow-area collective following a jury acquittal.

A Butte County Superior Court jury last month found a Concow man and
his father, Michael and Sean Kelly, not guilty of illegal cultivation
and possession of pot for sale.

The pair claimed to be part of a 15-member group of medical marijuana
patients that were collectively growing marijuana on two pieces of
property the defendants owned.

During two successive raids, sheriff's deputies seized 58 growing
plants from one of the sites on Paiute Drive in late 2008 and more
than 200 miniature "clone" starter plants about six months later, both
from the Paiute site and a second parcel off Jordan Hill Road, also in
Concow.

In acquitting the father and son of the felony drug charges, jurors
said outside of court they felt the prosecution failed to disprove the
defendants were part of a lawful medical marijuana collective.

Michael Kelly was convicted by the same jury of a related misdemeanor
charge of obstructing or diverting water from a small creek to
irrigate his plants.

Last week his attorney, Jodea Foster of Chico, filed separate motions
requesting a new trial on the water diversion charge, contending there
was insufficient evidence to show the creek was "substantially"
altered by his client.

The defense attorney also sought to have all of the seized marijuana
plants returned to the Kellys.

Tuesday, assigned Judge William Lamb, who heard the Kellys' trial,
announced he had a proposed order that would allow each member of the
Concow medical marijuana collective to receive a proportionate share
of the seized marijuana from the Sheriff's Office, where it is
currently stored.

The judge agreed to continue the matter three weeks, because Foster
was not feeling well and to allow the prosecution time to respond in
writing to the defense motions.

Reached for comment, District Attorney Mike Ramsey said because Helen
Harberts, who tried the case, is on vacation, another attorney in his
office prepared a written response to be filed with the court Tuesday,
asserting the jury had ample evidence to convict the son of the water
diversion count.

But Ramsey contends that just prior to the morning hearing, Lamb took
another prosecutor, Kelly Maloy, who was unfamiliar with the medical
marijuana case, into chambers with Foster.

Ramsey said Maloy quoted the judge as stating his proposed order
regarding the return of the medical marijuana "was sure to anger
everyone," but he assumed "they had a good sense of humor."

"We're taking it as all a joke," Ramsey said of the proposed court
order.

Ramsey said that he never looked at it because "I don't want to waste
my time on a joke."

He also contends that a court case cited by Foster to support return
of the marijuana is "inapplicable."

When the case is recalled on Aug. 11, the district attorney said
Harberts will oppose the return of the medical marijuana on grounds
that to do so would violate both state and federal law.