By Terrie Best / San Diego Americans for Safe Access
The thin-as-air manufacturing case against medical cannabis patient and collective operator, Shaun Smith swept so quickly through trial that, before we knew it, Attorney Michael Cindrich had queued up his third cannabis-related not guilty verdict in four months.
The Cindrich winning streak started with defendant John Mazula in El Cajon, moved north to LA and then touched down in San Diego County’s Vista yesterday – surely making waves in District Attorney’s office and changing the landscape for medical cannabis patients.
Shaun’s arrest occurred May 13, 2015, near his Oceanside home. He had been running a small legal cannabis collective out of his residence, providing flower, bubble hash, cannabis butter, tinctures and ointments to his members. He was also trading shake for wax. Team 9 of the San Diego Narcotic Task Force raided, confiscated the collective’s 35 pounds of flower, 20 pounds of cannabis shake, 1.5 ounces of wax, 40 thousand in cash and some unused extraction equipment. They also took Shaun’s gun collection, went to Bank of America and took from a safety deposit box the rest of the collective’s capital, 110 thousand – which was earmarked to open a storefront and grow their collective’s membership.
The District attorney’s office charged Shaun with possession of marijuana for sale and, because of a small extraction tube; some retail size cans of butane; filters and spatulas, they levied a butane manufacturing of concentrated cannabis charge against him.
The extraction items were purchased clean of residue, were stored and not in use. It came out later in court after Cindrich had to insist on obtaining the DEA’s lab notes that the extraction tube had spider webs in it. Spider webs are what cartoon artists draw to show dis-use and their presence should have sank the case in the lab. As is evidenced by the 10 minute not guilty verdict.
On Monday, the assigned judge, Honorable Harry M. Elias in department 25, sat down, evaluated the two witness lists totaling 21 people, raised his eyebrows and said “We like to move fast here.” His honor was right. Jury selection went at lightening speed and was over by 2:55pm. A panel of three women and nine men were selected. There was just enough time for opening statements to finish off the day.
It should be mentioned that prosecutor James Teh dropped the Possession for Sale charge before jury selection. This was likely done to deny Shaun a collective defense. The collective defense or the Medical Marijuana Program Act (SD420) is a thorn in the side of all prosecutors. It is even more so now that it has been made so strong by case law. The decision to drop sales charges in order to maximize damage to patients reminded me of Jorjito DelPortillo, a certain prosecutor downtown who likes to win so much he forgets to seek justice and he erodes public safety. This particular exploit was a big fail and made for a hilarious scenario later when we heard the defense’s case.
Comically, Cindrich would ask questions of witnesses about collectively associating under cannabis laws and Teh would rigorously object – over and over again, first the question then the objection. Cindrich remained unruffled but Teh’s ears turned red and he began to puff, he had dropped a sales charge to keep this testimony out and he was pretty steamed up. Teh managed, at best, to keep a loose lid on defense witness testimony that would assert the collective member’s rights to grow, trade and sell cannabis in a closed loop with Shaun.
While it looked like the little prosecutor, who I nicknamed Teh-jito, was mildly successful, at the end of Shuan’s testimony the jurors were allowed to write out questions to any witnesses. In a devastating event for the prosecutor, they asked the lovely and clarifying: “What is a Collective?” Teh-jito hung his head as Shaun answered something like:
A collective is a closed loop group of patients who can lawfully grow medical cannabis, and trade, sell or buy cannabis for medical purposes as long as they are patients.
It was symbolic that though District Attorney Bonnie Dumanis’s office may rigorously object to laws in their role as “the people” the actual people can sometimes get to the truth of the law with or without them in court. Dumanis is obstructing justice and denying jurors the truth. Judges, such as Elias, who allow jurors to question witnesses, protect the people from prosecutorial corruption. It was one of the highlights of the trial. All that prosecutorial huffing and puffing trying to keep the truth out only to have the actual defendant get to speak it – and at the request of the jury.
I was not in court on Tuesday and because things moved so quickly, I missed the prosecution’s entire case. Reports from citizens, Laura Palfrey Murphy and Dan Murphy came in on Facebook. The Sheriff Deputy, John Klimeck was an amateur, getting mad on the stand and using rubber gloves to handle evidence in the presence of the jury for show but tossing evidence in the box later without gloves when nobody was looking.
It appeared from questions the next day during the defenses case that a big deal was made of Shaun nodding his head to deputy Klimeck during the raid. Was the nod an admission of guilt? Here’s what happened: Shaun was sitting at his house watching the Narcotic Task Force’s Team 9 ransack it and take the collective’s belongings. He asked to use the phone but Klimeck said “No we have to clear your house for safety as we suspect a possible lab.” Because Shaun did not verbalize but nodded at the reason he could not make a phone call, the prosecution was now asserting Shaun had been nodding in agreement that there was a butane hash oil manufacturing lab in his house. That was their confession. The best they could do because Shaun did not talk to the police.
It should be noted Shaun did not answer any police questions at all. He knows better. Responding to that assertion from the police would have had Shaun talking to the police – something nobody should do, not even to correct them, since they lie about what you say. Still, not to be thwarted, Bonnie Dumanis’s office and Team 9 simply capitalized on the head nod to victimize Shaun and make it just a little harder for him to avoid ten years in prison in this case.
The raid on Shaun’s house was not the only thing that put Shaun at great risk. Horrible banking laws caused the collective to use a safety deposit box and keep all of the collective’s money in cash, which Team 9 took and turned over to the federal government. And, District Attorney Dumanis’s refusal to honor state laws made the fact that Shaun is a gun enthusiast put him at risk for enhanced sentencing.
Having extraction equipment even if you never used it will land you in court fighting for your freedom anyway. Put guns in the mix and you could be facing over ten years. There was a lot at stake in this case and Michael Cindrich, the character witnesses and experts Andrew Pham and Bill Britt were stellar and fought hard for Shaun. In the end, he was exonerated.
Closing arguments had Teh yelling about butane and Cindrich educating about asset forfeiture and calling Team 9 a bunch of cowboys.
The jury went into deliberations but, because 4:20 verdicts are trending lately, we decided not to leave the area. We sat in the parking lot just long enough to get our heads right and then get a text from Cindrich. It was surreal, it was happening again, justice for cannabis patients had stormed the courts, and another medical cannabis defendant had taken on Bonnie and won.
I spoke with juror 9 after trial. He said the group had talked in the deliberation room for about ten minutes and then took an anonymous vote at 4:20 – all ballots came back not guilty.
A quick check in with Shaun revealed he feels wonderful. The depression, anger, and frustration at being a victim of a baseless prosecution is fading and he looks forward to life moving on. Thanks for fighting Shaun! Our movement is better for it and we have another cannabis hero to celebrate.