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 SLO Narcotics Task Force investigation into medical marijuana collective members may finally get underway May 26.
Or maybe not.
Before the trial began, attorneys on both sides of the case spent three days in front of a meditative—though at times visibly agitated—SLO 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 NTF 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, whose health issues vary in degrees of severity.
Following the two-month investigation—dubbed “Operation Green Sweep” by the NTF, which also had help from the Santa Barbara County Sheriff’s Department—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 D.A. rejected the NTF cases against three of the arrested. Now, however, the office has officially stated its position: Selling marijuana in any capacity is illegal. Miller’s attorneys, on the other hand, argue that his providing of cannabis to the physician’s recommendation-carrying members of his collective is protected under California’s Compassionate Use Act, and further protected by recent case law.
And while Miller’s case is being monitored closely by the District Attorney’s Office, the NTF, and local defense attorneys, it may be most important in the eyes of the other eight local defendants whose upcoming trials will hinge on whichever way the legal winds blow for Miller.
On March 9, the D.A. filed a motion to exclude a medical marijuana defense—a move which, if approved by LaBarbera, would render Miller virtually defenseless. Miller’s SLO-based attorney, Patrick Fisher, filed a response asking the judge to reject the motion.
On May 20, LaBarbera was put to the task of weighing both sides of the argument, ultimately having to agree with either the defense or the D.A.’s interpretation of the law.
The D.A., represented in this case by Deputy District Attorney 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 a number of 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. As of May 20, LaBarbera said he hadn’t even read those guidelines.
Essentially, the case comes down to interpretation of the definition of a “collective.” And if the D.A.’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 D.A.’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 to keep the collectives operating. SLOPD officer and lead NTF investigator Jason Dickel—the prosecution’s main witness in the case—testified that an ounce of marijuana costs approximately $35 to grow, based on a 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.” Under cross-examination, the defense asked Dickel if the RAND figure took into account expenses not related to cultivation, such as rent and transportation costs, which Dickel said he couldn’t answer. Fisher also noted that brick-and-mortar dispensaries throughout Santa Barbara and San Francisco counties charged prices similar to Miller’s.
“Well, it’s our opinion that those aren’t legal, either,” Mitchell said, referring to those dispensaries.
As of press time, statements from LaBarbera indicated he would allow Miller’s medical marijuana defense at his trial. However, it was unclear how he would instruct the jury to interpret the definition of collective.
“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.
If LaBarbera denies the D.A.’s motion, prosecutors may appeal his decision, which would essentially halt Miller’s trial and send everything to the district appellate court. If that court rejected LaBarbera’s decision, it would be back to square one for Miller.
According to Fisher, Miller received an offer from the D.A. ahead of the motion hearings: a reduction of 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 the Sun. “I feel like [the D.A. 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?”
Added Fisher: “He’s got a lot emotionally invested in this. His face was plastered all over the news. And yet he did everything to comply with the law.”
Mitchell told the Sun she couldn’t comment on the case, as it is pending.
As of press time, LaBarbera was set to finalize his decision on the motions the afternoon of May 24. Should the trial move forward, jury selection is tentatively scheduled for May 26.
Staff Writer Matt Fountain can be reached at mfountain@santamariasun.com.
This article appears in May 26 – Jun 2, 2011.