Railroaded for Courthouse Leafletting
The director of California's best-known medical marijuana club has announced that he will begin a hunger strike when he is imprisoned March 3 for issuing leaflets outside a courthouse.
Oakland Cannabis Buyers' Cooperative (OCBC) director Jeff Jones was sentenced to three months in prison for distributing pamphlets outside a Sacramento federal court where potential jurors were assembling for the trial of medical marijuana grower Bryan Epis.
If he follows through with his plan, Jones will be one of the first California medical marijuana activists to starve himself in an effort to draw attention to the conflict between state and federal laws governing medical cannabis.
"I am doing this to build solidarity, support and awareness," said Jones. "To further the education of the public and juries about problems with the federal law on this issue, and the damage it is causing in states that have already passed favorable laws."
A thin, clean-cut man, Jones has pioneered community acceptance of medical marijuana since the passage of California's Compassionate Use Act (Prop. 215). The law permits patients to grow and consume medical cannabis with a doctor's recommendation. The city of Oakland, California passed a 1998 ordinance establishing a medical marijuana distribution system, and designated OCBC operators as officers of the city immune from prosecution.
That same year, the federal government filed a preliminary injunction to halt the OCBC from distributing medical cannabis. While the U.S. Supreme Court ruled in May 2001 that the club could not dispense medical cannabis under "medical necessity," it did not consider larger constitutional issues. An appeals court is still deciding whether the City of Oakland has the power to offer the club legal immunity. Steph Sherer, director of the medical marijuana advocacy group, Americans for Safe Access, notes that Jones and his club have frequently pushed the envelope and "set an example for the implementation of Prop. 215 for the rest of the state."
But Jones says he is now the target of selective prosecution. U.S. Magistrate Judge Peter A. Nowinski ignored a probation recommendation, and ordered Jones into federal custody on a misdemeanor charge of influencing a juror by writing.
During Jones' sentencing hearing, his attorney Michael Bigelow attempted to explain to Judge Nowinski that Jones was among a group of activists who were distributing literature supporting Epis' right to grow medical marijuana under Prop. 215.
But each time Bigelow spoke the words, "medical marijuana," Nowinski cut him off, insisting that the issue was irrelevant to the primary concern of jury integrity.
"He was totally biased and politically motivated and didn't allow my attorney to make a discussion or an argument," said Jones "The judge said 'we are not going to talk about medical marijuana in here, this is not about that.' But it is."
Judge Nowinski's exclusion of the medical marijuana issue mirrors the tactics of U.S. District Judge Charles Breyer who presided over the recent trial of medical marijuana grower Ed Rosenthal. Rosenthal's jurors later denounced Judge Breyer's successful efforts to block discussion of medical marijuana during the trial, which jurors said resulted in an incomplete presentation of the facts.
The leaflet distribution, which took place during jury selection for Epis' trial, was an attempt to present the very type of information Rosenthal's jurors said they were denied. The leaflets asserted that Epis was growing medical cannabis under state law for a group of patients in Chico, California.
When U.S. District Judge Frank C. Damrell Jr. discovered that some of the potential jurors in the case had received the leaflets, he charged Epis with obstruction of justice. Judge Damrell then agreed with prosecutors that the entire panel of 42 potential jurors had been tainted, and dismissed all of them. When Jones arrived at the hearing for the obstruction of justice charge, he said court officials positioned the rejected jurors near the courtroom entrance where they identified him as the pamphleteer. He was arrested on June 24.
Judge Damrell convened a second panel of jurors who were not permitted to hear evidence that Epis was growing medical cannabis. Epis was convicted in July of federal marijuana cultivation charges, and is now serving a 10-year mandatory minimum sentence in federal prison. His conviction is being appealed.
The obstruction of justice charge against Epis was later dropped. But federal prosecutors pursued their case against Jones. Assistant U.S. Attorney Samantha Spangler issued a memorandum which acknowledged that there was other "other activity occurring outside the courthouse" when Jones was handing out leaflets. But the memorandum asserted that "Mr. Jones' conduct was egregious. He stood on the courthouse steps distributing pamphlets specifically targeting prospective jurors."
Jones said he simply passed leaflets to people walking into the courthouse. "I didn't interrupt the court," said Jones. "I didn't talk directly to people who were jurors."
Jones told Judge Nowinski during a hearing in December that had not even closely read the information he was handing out. But Jones pled guilty to the jury tampering misdemeanor in order to avoid a felony obstruction of justice charge. A report issued by the county probation department recommended that Jones be placed on probation and pay $3,924.93 in restitution charges to cover the cost of seating a new jury.
Bigelow objected to the restitution, arguing that Judge Damrell acted hastily in dismissing the entire jury pool. This argument evidently angered Judge Nowinski, who upheld the restitution and made an unsuccessful effort to take Jones into custody immediately.
Jones says he has filed an urgent request with a District Court Judge asking to be released on bond. He is also appealing his conviction with the Ninth Circuit Court of Appeals on 1st Amendment and other grounds.
"This is David and Goliath," says Jones, who says he will surrender to U.S. Marshals in Sacramento, and then refuse food. "I want to show how far a judge will go to undermine justice."
Ann Harrison is a freelance journalist, in the Bay Area. She can be reached at: firstname.lastname@example.org