This July, five Washington medical marijuana patients will be tried in federal court in Spokane. The plight of these defendants, known as the Kettle Falls Five, has started to gain national attention. Despite the passage of I-502 and the overwhelming popular support across the nation for allowing the use of medical marijuana, the ugliest aspects of the drug war continue in this state, if only in the parts where fewer people live.
The facts of the case are relatively simple. On August 9, 2012, police came to the home of 70-year-old Larry Harvey and his 55-year-old wife Rhonda Firestack-Harvey in Kettle Falls, WA. The Harveys had a collective garden of marijuana plants used to provide relief for themselves and three others patients – their son, his wife, and a family friend – all with valid doctor’s authorizations. Here in Washington state, where an attempt to create a fully regulated medical marijuana distribution system failed in 2011, this was still the only proper legal avenue for medical marijuana patients to provide for themselves.
During this initial visit by police, Harvey was in violation of state law in only one way. He had too many plants in his garden. Collective gardens are limited to 15 plants per patient with a maximum of 45. Many gardens have tried to get around the maximum limit by establishing multiple plots on a single property, but officials generally don’t allow that when they come across it. As a result, police confiscated the 29 plants over the limit and left them with 45.
In most parts of the state, that would be the end of it. Here in very rural Stevens County, it wasn’t. A week later, another group of law enforcement officials showed up. These were federal officials, and federal law still maintains that any amount of marijuana is illegal. During this raid, they took all the plants and confiscated their car, motorcycle, ATV, computers, cash, and several legally owned firearms. The U.S. Attorney’s office for Eastern Washington is charging all five as drug traffickers, using the confiscated firearms as justification for the harsh charges. Because of federal mandatory minimums, all five are facing minimums of a decade or more behind bars.
Ever since Obama came into office, there have been assurances that the federal government will respect state marijuana laws. But the memos issued by the DOJ to provide guidance have given individual U.S. Attorneys enough leeway to bring about these types of senseless prosecutions. In Washington, the more liberal western half of the state has been more lenient. In the more conservative eastern half, under U.S. Attorney Mike Ormsby, we’ve seen several prosecutions of individuals who were attempting to comply with state law.
In the end, five individuals who pose no threat whatsoever to society will be sitting in a Spokane courtroom this summer fighting to stay out of jail for decades. None of these individuals were doing anything different from what thousands of other Washington residents have been doing. And yet, because of the way federal trials are stacked against defendants, none of the five will be able to present evidence that they were medical marijuana patients or that they were attempting to comply with state law. None of those facts are relevant in a federal trial so federal judges routinely bar those defenses from being made.
Even worse, the seriousness of the charges being thrown at these defendants comes from the fact that they were also legal gun owners. Even putting aside the fact that gun ownership in rural Stevens County isn’t unusual, folks who maintain medical marijuana gardens across the state are at a higher risk of having armed intruders trying to rob them. It makes sense for them to be armed. They’d be crazy not to have guns for their own protection. Yet this fact has allowed Ormsby’s office to charge these five innocent people as if they were operating as some kind of dangerous drug cartel. This is completely insane.
It’s hard to accept that this level of bullshit still happens in Washington in 2014. When this trial begins in July, adult residents of Spokane will be able to walk into newly-opened state-licensed retail stores and buy marijuana for recreational use. Yet this trial will continue in that same city, within a giant bubble of bullshit carefully crafted to blindfold the reality that the Harveys are the real victims here. Hopefully, the pleas to Attorney General Holder will be heard and this outrageous abuse of power will be ended before then.
One track mind.
Marijuana is still illegal under federal law. Period. The only thing state legality means is you won’t be prosecuted in state courts. Period. Permissive state marijuana laws DO NOT shield you from federal prosecution. Period. People need to understand this.
It’s very frustrating for us lawyers to have to keep explaining two basic Facts Of Life to our clients*: (1) Marijuana is still illegal no matter what state law and a doctor’s prescription says, and (2) anything you write in any email you send to anyone can and will be subpoenaed by hostile lawyers and read aloud to you in court in front of the jury, regardless of who owns the email account, but you get extra demerits for spilling the details of your sex life in your employer’s email system at work.
* You may not be our client now, but you will be our client in the future, if we can’t drill some common sense into you.
Try telling an Officer that it’s OK you were going 75 in a 45 because you have a drivers license. It just isn’t a workable argument.
They weren’t in compliance with State law, and I believe we’ll be seeing evidence at trial (in the form of statements made by the defendants) that they sold a portion of their crop.
The undisputed fact that several loaded weapons were found right next to their MMJ isn’t going to help. That is going to tell the jury that the purpose of those weapons was to defend their weed, not for hunting.
It’s unfortunate for them, but plenty of other growers have complied with statute through various means, such as selling a portion of their property as an adjacent plot to fall within the 45 plants per collective rule.
So some fucking fed is going to lock up 5 sick people for decades.
Figure at least $100,000 per year to keep all 5 of these “dangerous felons” locked up then add in the health care costs they are going to need. At what point do we start considering this a serious waste of money?
Forget Holder coming to the rescue. The only possible salvation for these defendants is jury nullification. I don’t want to get into a briefing war on the topic but the reality is that a jury can simply choose to acquit and jurors are under no obligation to justify that determination. The less said the better.
The court won’t allow jurors to know about the defendants being medical marijuana patients or consider state law but that doesn’t mean that potential jurors in Stevens Co. can’t be informed about these facts and their ability to nullify through other media.
So, if you are a potential juror, be sure and say “I can be fair” in voir dire and don’t breath a word about nullification. Just do it.
@5 What if the prosecutor asks if you “will be” fair? Most prosecutors weren’t born yesterday. You’re forgetting that lawyers are experts at the nuances of language and choice of wording.
“Try telling an Officer that it’s OK you were going 75 in a 45 because you have a drivers license. It just isn’t a workable argument.”
The issue here is the punishment. Putting someone in jail for 40 years for speeding would be seen as excessive. So is this.
“They weren’t in compliance with State law”
If you have evidence of this, you’d be the first to come forward with it.
“I believe we’ll be seeing evidence at trial (in the form of statements made by the defendants) that they sold a portion of their crop”
If so, the appropriate penalty is probably a hefty fine, not decades behind bars and the seizure of much of their possessions.
“The undisputed fact that several loaded weapons were found right next to their MMJ isn’t going to help. That is going to tell the jury that the purpose of those weapons was to defend their weed, not for hunting.”
Correct, and since robberies of medical marijuana providers are fairly common, they had a very valid reason to believe they’d need them to defend their plants. Using this as an excuse to lock them up in jail for decades is bordering on sociopathic.
“It’s unfortunate for them, but plenty of other growers have complied with statute through various means, such as selling a portion of their property as an adjacent plot to fall within the 45 plants per collective rule.”
Again, if this prosecution is solely about being over the plant limit, the appropriate penalty is a fine. Not jail time, and certainly not 10+ years in jail. I’m at a loss why this is difficult for anyone to understand.
Hi Lee, good to meet you. Yikes, comment dissection. OK, I’ll play along –
“The issue here is the punishment. Putting someone in jail for 40 years for speeding would be seen as excessive. So is this.”
I don’t disagree, however they were quite aware that this activity is still against Federal law, and carries draconian penalties with statutory minimum sentencing. If you violate US drug law, you are taking a real gamble with years in prison at stake. Still not a workable argument.
*I think you switched the next two paragraphs, and will adjust accordingly*
“If you have evidence of this, you’d be the first to come forward with it.”
I recall reports in local papers refering to statements made by a defendant indicating transport to western Wa for purpose of sale. I’ll check my history and see if I can locate the articles.
“If so, the appropriate penalty is probably a hefty fine, not decades behind bars and the seizure of much of their possessions.”
There are many statutory penalties I find excessive. They likely differ from your own list of excessive penalties, and our two lists would probably diverge wildly from that of a third party. It’s subjective, and moot. The prosecutor in this case does not have the option to seek a fine. The minimum is set by statute.
“Correct, and since robberies of medical marijuana providers are fairly common, they had a very valid reason to believe they’d need them to defend their plants. Using this as an excuse to lock them up in jail for decades is bordering on sociopathic.”
Shooting someone over a plant is sociopathic, whether attacking or defending. Leaving that aside, federal law finds the use or even presence of firearms in a drug crime to be exacerbating. I’m sure if you consider for a minute you’ll come up with the very solid rationales for that. Drugs and guns don’t mix, period. If you think people who are likely to be stoned should have plenty of rifles laying around, we are going to disagree to agree.
“Again, if this prosecution is solely about being over the plant limit, the appropriate penalty is a fine. Not jail time, and certainly not 10+ years in jail. I’m at a loss why this is difficult for anyone to understand.”
Were they being prosecuted by the state of Wa that would be the case. There is no such law extant at the federal level, and they are being charged according to federal statutes in a federal court. You are a little late to argue state law vs federal law. We had a war with that as one of the issues you know.
“I don’t disagree, however they were quite aware that this activity is still against Federal law, and carries draconian penalties with statutory minimum sentencing.”
That makes little difference to me. If the penalty for jaywalking is known to be 40 years in jail, the appropriate response to someone getting sent to jail that long for it is not “fuck em, they knew the law”. The appropriate response is to call it outrageous.
“I recall reports in local papers refering to statements made by a defendant indicating transport to western Wa for purpose of sale. I’ll check my history and see if I can locate the articles.”
Haven’t seen that, please post if you find it. If that’s the case, how likely is it that all five of the defendants were aware of it? I’m sure if this ends up going to trial, issues like that will be interesting to dive into.
“There are many statutory penalties I find excessive. They likely differ from your own list of excessive penalties, and our two lists would probably diverge wildly from that of a third party. It’s subjective, and moot. The prosecutor in this case does not have the option to seek a fine. The minimum is set by statute.”
Then the only correct response here is to refuse to prosecute. It is not “subjective” to believe that a ten-year mandatory minimum for an ailing man who was no threat to anyone conforms with any realistic standard of human rights in the 21st century. It’s simply cruel and unnecessary
“Shooting someone over a plant is sociopathic, whether attacking or defending.”
People in the state have been shot and killed while tending plants in a collective garden. The guns are there for protection.
“Leaving that aside, federal law finds the use or even presence of firearms in a drug crime to be exacerbating.”
And this statute has been abused a number of times and has resulted in unnecessarily lengthy prison terms. Like much of the drug war, it is designed to be blindly punitive, rather than a way to separate out the worst offenders. Like much of the drug war apparatus, it needs to be scrapped.
“Drugs and guns don’t mix, period. If you think people who are likely to be stoned should have plenty of rifles laying around, we are going to disagree to agree.”
People who are likely to be drunk have far more access to guns in this country. That should scare you far more. I’d feel far safer being around potheads and guns than being in a bar with armed people.
“Were they being prosecuted by the state of Wa that would be the case. There is no such law extant at the federal level, and they are being charged according to federal statutes in a federal court.”
Again, I’m well aware of this, and I’m pointing out the obvious fact that regardless of whether the law was being followed to the letter, it’s clear the Harveys weren’t a threat to anyone. The outcome of this case is headed for a significant injustice that should be shameful for not just the state of Washington but for the country in general.
The tide is changing. Eventually the War on Drugs will be declared lost by the Feds and some common sense drug laws will be enacted. If I was on the Kette Falls Five jury, I would automatically vote not guilty just because our drug laws are stupid.
The War on Drugs is a legacy of the Nixon Administration, and he was about the biggest crook in the world. Why are we sustaining Nixon’s legacy and his outlandish campaign against a weed?
@11 This video explains everything.
http://www.youtube.com/watch?v=54xWo7ITFbg
Roger Rabbit @6: There is very limited voir dire in federal courts, mostly a set of standard questions asked by the judge and not by the attorneys. If I’m asked “can you be fair?” I have my own ideas of what constitutes fairness. As for “following the law” nullification has been upheld, albeit in uneasy fashion, as within the power of a jury. But ultimately, what’s at stake is simple justice and common decency. Juries historically have been viewed as the last barrier against government using the legal system to oppress.
In a few recent cases, jurors refusals to convict on trumped up terrorism charges have had a major impact on the feds willingness to continue to bring these bogus cases. The US Attorney’s staff are used to almost always winning. They’d rather dump cases than lose them.
@13 You don’t need to explain jury nullification to me. I’ve been a lawyer for 40 years. I know what it is.
@11 I suppose for the same reason the GOP sustains Nixon’s legacy of dirty tricks.