State Pot Prosecution Now a Federal Case

January 19, 2004

Jeff Chorney, The Recorder

(Tuesday, January 20, 2004) SACRAMENTO -- Medical marijuana advocates are accusing state and federal lawyers of vindictive prosecution for arresting two drug defendants on federal charges while they sat in a Tehama County courthouse.

The proponents say it's another example of the feds meddling in a case that would have been dismissed under the state medical marijuana law. Prosecutors counter that the amount of dope warrants federal involvement.

Defense lawyers accuse a Tehama County prosecutor of unethically 'luring' them out of a courtroom last week while sheriff's deputies arrested their clients in court. A Tehama County assistant district attorney said Friday that the county followed normal procedure.

The case began more than six months ago, when David Dean Davidson, 52, and Cynthia Barcelo Blake, 53, were arrested after police seized marijuana from property in Tehama County and Oakland. The Tehama County district attorney's office prosecuted the couple on state charges until last week, when those were dropped and the office of Eastern District U.S. Attorney McGregor Scott took over.

Their attorneys said Davidson uses marijuana for back problems and depression, Blake for depression and insomnia. Both have doctors' recommendations. Depending on which lawyer you ask -- prosecution or defense -- the amount of marijuana seized from the couple was either more than a thousand plants ready for wide distribution, or just enough for personal medical use.

The federal charges in the case, U.S. v. Davidson and Blake, 04-0004, accuse the couple of conspiracy to distribute at least 1,000 plants and the manufacture of at least 100.

U.S. Attorney Scott and Tehama County Assistant District Attorney Jonathan Skillman said Friday the case was ripe for federal prosecution. Besides involving what authorities believe is a substantial amount of marijuana, the case spans two jurisdictions -- Oakland and Tehama -- which the small DA's office, 'with limited resources,' isn't used to handling, Skillman said.

The defense said that's poppycock.

'What was so egregious about the state prosecutor's actions is that she deliberately skirted state law,' said Omar Figueroa, who, along with J. Tony Serra, represents Davidson.

Shari Greenberger, who practices with Figueroa and Serra at the Law Offices of Serra, Lichter, Daar, Bustamante, Gilg & Greenberger in San Francisco, represents Blake.

Figueroa said Tehama County prosecutor Lynn Strom, who handled the state case, handed off the prosecution because she is afraid of losing. Serra said that amounts to vindictive prosecution because Davidson and Blake will no longer be allowed to assert their rights under the state medical marijuana law.

That accusation isn't new to the debate over medical marijuana. Advocates say they're frustrated when locals either hand off cases or when the feds get involved without being asked. In this instance, Scott said Tehama asked his office to get involved.

It is not known if the Tehama County judge knew Davidson and Blake were being plucked from the courtroom.

Serra and the other lawyers hope the recent Ninth Circuit U.S. Court of Appeals decision, Raich v. Ashcroft, 03-15481, will help their position now that they're in federal court. The case said that growing marijuana for personal use, if it doesn't enter into commerce, does not constitute a federal offense.

The defense attorneys spoke Friday outside the federal courthouse in Sacramento, where they were accompanied by a handful of people holding signs advocating medical marijuana. The group called on Strom to resign for her handling of the case and for the way the arrest went down.

According to Figueroa and Greenberger, Strom announced in open court Jan. 13 that the state charges were being dropped and then invited the defense lawyers back into judge's chambers. Once there, deputies swarmed into the courtroom and spirited away their clients, the defense lawyers said.

Strom could not be reached for comment, but Skillman spoke on her behalf, saying she did nothing wrong.

Although they admit they couldn't have stopped the arrests, Figueroa and Greenberger said it would have been more appropriate for them to have surrendered their clients. They at least would have liked the chance to advise their clients of their rights, they said.

Skillman said he didn't understand the defense attorneys' problem.

'They weren't told beforehand, and that's just the way it goes,' he said.

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