Medical Marijuana: The Elephant in the Courtroom of the Kettle Falls Five Trial

On the third day of trial in the widely watched federal medical marijuana case of the Kettle Falls Five, the Department of Justice (DOJ) called several witnesses to help prove their case, including co-defendant Jason Zucker, who took a plea deal one day before trial began agreeing to cooperate against the three remaining defendants.

In the courtroom, the Kettle Falls Five trial has resembled a common marijuana cultivation case. There are photos of plants being grown, water reservoirs and irrigation systems, receipts for lumber, fertilizer and other equipment and products needed to grow marijuana.

However, the most significant aspect of this case can never be uttered in the courtroom lest the jury know the truth: all five defendants are qualified patients and they were growing medical marijuana for their own personal use.

Because of a U.S. Supreme Court decision in 2005, the government can -- and always does -- prevent any evidence at trial of a defendant’s medical necessity or compliance with state medical marijuana laws. Therefore, the jury in a federal trial is always prevented from hearing the intent of why the marijuana was being grown or how it was used.

During Zucker’s testimony, he made a point of explaining to the jury that he was asked by the government to just “tell the truth.” Yet, beyond helping the DOJ make its case against the remaining Kettle Falls Five defendants, the truth is still beyond the jury’s grasp.

Zucker, 39, was a friend of the Harvey family. He explained how he met Rolland Gregg, 33, and his wife Michelle, 36, in 2010 and later met Rolland’s mother, Rhonda Firestack-Harvey, 56, and her husband Larry Harvey, 71, whose charges were dismissed last week due to his recent diagnosis of Stage IV pancreatic cancer.

Zucker spoke about an informal agreement made between him and the Harvey family to cultivate marijuana together.

Arguably, Zucker could be perceived as the mastermind behind this cultivation scheme. He is a horticulturist by trade, he has grown marijuana before, and he admitted to providing advice and expertise crucial to the success of the garden. He even admitted to making a $10,000 investment in the garden’s “infrastructure,” to use the government’s term of art.

While Zucker ought to be held accountable for his plea agreement to “substantially assist” the government in making its case, blaming him also misses the larger point: the DOJ holds all the cards in these kinds of cases, and the government is wasting taxpayer dollars on prosecutorial attempts to undermine state medical marijuana laws.

Patient advocates argue that the recent Congressional measure adopted late last year, preventing DOJ funds from being spent on enforcement efforts that interfere with the implementation of state law, should stop federal prosecutions like that of the Kettle Falls Five dead in their tracks. Furthermore, the Obama Administration has been vocal in its claim that the DOJ is not targeting individual patients.

Yet, here we are.

To illustrate the absurd lengths the DOJ will go to prevent the jury from understanding the truth, Thursday morning the government called Drug Enforcement Administration Special Agent Sam Keiser who told the court the Harvey family was trying to conceal their garden, but the government successfully blocked attempts by the defense to show the jury a sign with a green cross painted on it, large enough to see in aerial photographs taken of the garden by law enforcement.

Friday, the government raised an objection with the court, asking Judge Thomas O. Rice to order Rolland Gregg to remove from his lapel a green ribbon with a red cross commonly associated with support for medical marijuana because it might prejudice the jury.

The commonsense approach to this aberration of justice is to stop trying medical marijuana cases in federal court and, instead, start prosecuting them in state court. This of course denies dominion to the federal government, but also gives patients a fighting chance to vindicate themselves. Whereas, in federal court, without a defense, their fate is almost a foregone conclusion.

Trial will resume Monday, March 1st at 9am in Room 902 of the Thomas S. Foley U.S. Courthouse, 920 West Riverside Avenue, Spokane.