DEFINE 'COLLECTIVE'

Jury Will Hear First Slo Medical Marijuana Case

It's been nearly six months, but the first in a series of trials for
the San Luis Obispo County residents arrested after a controversial
December 2010 investigation of medical marijuana collectives may be
nearing jury selection.

At times, it appeared as if the case wouldn't even make it to
trial.

Between May 20 and 24, attorneys on both sides of the case spent three
days in front of a meditative-though at times visibly agitated-SLO
County Superior Court Judge Barry LaBarbera, arguing back and forth on
the specifics of what some people consider to be a murky California
state law regarding medicinal marijuana.

Peter Miller, 56, of Paso Robles, was arrested in the early morning
hours of Dec. 27, 2010, after SLO County Narcotics Task Force agents
raided his home. They seized marijuana plants, packaged marijuana,
computers, personal records, cash, and a number of registered
firearms, which were found in Miller's locked safe.

Miller, along with his son, was the founder and operator of Harmonic
Alliance, a medical marijuana collective. He made regular deliveries
to collective members.

Following the two-month investigation-dubbed "Operation Green Sweep"
by the NTF-15 people from SLO and Los Angeles counties were sent to
jail on charges that included illegal marijuana sales, illegal
cultivation of marijuana, and child endangerment. Protests from
medicinal marijuana activists exploded around the courthouse, and many
residents were left wondering how the SLO County District Attorney's
Office would handle the mess.

At first, the defendants were emboldened after the DA rejected the NTF
cases against three of the arrested. Now, however, the office has
officially stated its position: Exchanging marijuana for money in any
capacity is illegal. Miller's attorneys, on the other hand, argue that
his provision of cannabis to card-carrying, doctor-recommended members
of his collective in exchange for "reasonable" compensation is
protected under California's Compassionate Use Act, and further
protected by recent case law.

On March 9, the DA filed a motion to exclude a medical marijuana
defense, saying it was "irrelevant" to the case. Miller's SLO-based
attorneys, Patrick and David Fisher, filed a response asking the judge
to reject the motion.

On May 20, LaBarbera-a former district attorney for SLO County-was put
to the task of weighing both sides of the argument, ultimately having
to agree with either the defense or the DA's interpretation of the
law.

LaBarbera didn't buy the DA's motion, saying there's more than a
reasonable doubt as to whether Miller was operating within the
parameters of state law, and though he couldn't make that ruling, he
said he would leave it to a jury to decide.

"I'm struggling with the idea of having [Miller] charged with these
crimes and not having him be able to tell a jury what his defense is,"
LaBarbera said.

In the motion, Deputy DA Sandy Mitchell argued that state law does not
protect individuals selling marijuana as part of a collective, unless
each of the members had a hand in cultivation and decision making.

"It's not about Mr. Miller, or anyone else-it's about the law,"
Mitchell argued.

And the laws on the books are under debate. Both attorneys cited past
cases as supporting their stance, as well as a set of guidelines
published by former Attorney General Jerry Brown on how medical
marijuana providers are to legally operate. Law enforcement agents,
however, argue that those guidelines aren't legally binding, and as of
May 20, LaBarbera said he hadn't even read those guidelines.

Essentially, the case comes down to interpretation of the definition
of "collective." And if the DA's definition is accepted by a jury,
Miller has no leg to stand on. But if the defense's definition wins
the day, so does Miller.

One of the backbones of the DA's argument is that Miller was charging
too much for the marijuana. Under state law, medical marijuana
collectives are supposed to be nonprofit, and can only accept monetary
compensation to cover overhead costs. SLO Police officer and lead NTF
investigator Jason Dickel-the prosecution's main witness in the
case-testified that one ounce of marijuana costs $38 dollars to grow,
based on a 2010 study by RAND Corp., a nonprofit international public
policy think tank.

Though Miller wasn't selling ounces, his price scale translated to
roughly $250 per ounce-what Dickel called "street prices." However,
the study, which Dickel described as a "cost analysis on what it costs
to cultivate marijuana," was actually intended by its authors as an
analysis on what effects marijuana legalization would have on
consumption and public budgets in California, ahead of last year's
Proposition 19 and legislation introduced to the State Assembly.

Miller's situation, where long distances are driven to deliver small
quantities, is different, his attorney argued. Fisher also noted that
brick-and-mortar dispensaries throughout Santa Barbara and San
Francisco counties charge prices similar to Miller's.

"Well, it's our opinion that those aren't legal, either," Mitchell
responded, referring to those dispensaries.

LaBarbera's decision leaves the prosecution in a bind. Mitchell stated
she doubted if she could move forward in the case, indicating she
could reject Miller's case and appeal LaBarbera's decision to the
district appellate court. But before she could make that decision, she
requested to review the specific jury instructions in an effort to
salvage the case.

LaBarbera reviewed both the defense and prosecution's instructions for
the jury-how they should interpret and consider key facts and
testimony-and spent nearly an hour juggling the two parties' requests
for crafting their own interpretation of the law into the
instructions.

"I could just give them the entire statute, have them read the entire
thing, and tell them 'You figure it out, because we can't,'" a
perturbed LaBarbera said.

Then, with just minutes before the deadline to call for jury
selection, when Mitchell was expected to announce she couldn't move
forward, she declared that NTF investigators had recently-in the
previous few minutes-brought forth new evidence to the DA's Office.
The new evidence included e-mails, according to Mitchell, sent by
Miller, which discuss "making money," and which she described as a
"game-changer." She did not provide any further details.

Given the new evidence, the jury selection will now be set back
indefinitely while the defense reviews the material.

When the parties eventually get around to selecting a jury, it won't
be the easiest process, especially for the prosecution. Factors such
as confidential medical history and self-incrimination will prevent
attorneys from asking prospective jurors if they are or ever were
medicinal marijuana patients, or if they ever have-or regularly
do-smoke marijuana, illicit or otherwise.

Mitchell said she couldn't comment on the case, as it is
pending.

Previous developments have already made it obvious the DA would rather
not see this case get in front of a jury. According to Fisher, Miller
received an offer from the prosecution before the motion hearings in
which they would reduce his charges to a misdemeanor and three years
of probation in exchange for a guilty plea. Miller rejected the offer.

"I'm not going to plead guilty when I was obeying the law. Forget it,"
Miller told New Times. "I feel like [the DA is] using my life as a
political football. Why do you have to have someone's head in a noose
to have the laws explained?"