Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
Hawaii - Saying there was a flaw in the procedure used to obtain a grand jury indictment, 2nd Circuit Judge Joseph Cardoza dismissed charges Thursday against six defendants in an alleged marijuana trafficking operation tied to a Paia-based medical marijuana advocacy group.
"This ruling is not an attempt by the court to rewrite the medical marijuana laws in the state of Hawaii," Cardoza said. "This is not a ruling on the merits of anyone's case.
"The court concludes that the procedure followed before the grand jury was flawed. Dismissal without prejudice is warranted."
Because the dismissal was without prejudice, the prosecution could again seek an indictment in the case.
Deputy Prosecutor Timothy Tate said that will be done.
The defendants were among seven people arrested in November 2008 as part of "Operation Weedkiller." Police reported seizing hundreds of marijuana plants and clones, processed and unprocessed marijuana, drug paraphernalia, cash and a vehicle during a two-year investigation.
The probe centered on the medical marijuana advocacy group Patients Without Time, which police said exploited medical marijuana laws to sell the drug to hundreds of people.
Those arrested included Brian Murphy, 53, who founded and heads the group; Brian Igersheim, 31, of Makawao; Stuart Hirotsu, 48, of Wailuku; William "Bill" Cox, 48, of Haiku; John Cooper, 40, of Kihei; and Robert "Bobby" Armitage, 58, of Wailuku. All had pleaded not guilty to criminal conspiracy, with some of the defendants facing additional drug charges as well.
Wailuku attorney Ben Lowenthal, representing Igersheim, filed the motion seeking the dismissal of charges, with the other defendants joining in.
At issue was the grand jury testimony of Keith Kamita, chief of the state Narcotics Enforcement Division, who administers Hawaii's medical marijuana law. Lowenthal said Kamita provided a "misleading" legal opinion.
In addition to explaining how the medical marijuana program works, Kamita testified about some of the defendants' participation in the program. "This is a very fair proceeding," Tate said. "Due process was not violated at all."
He said the only error was Kamita's testimony that Murphy did not have a valid medical marijuana card at the time.
Because of that testimony, attorney Chris Dunn said his client Murphy was prejudiced by being "portrayed as a complete scofflaw."
Murphy did have an active card, Tate said. But he said that in two raids, police found Murphy with "pounds of marijuana, well in excess of the statutes" limiting the amount of marijuana that a patient can have.
Cardoza said transcripts of the grand jury hearing indicate that Kamita was asked "30 or more questions" that might be considered questions of law.
After Tate asked Kamita questions, including requirements for obtaining a medical marijuana permit and limits on amounts, grand jurors also began asking Kamita questions relating to the law, Cardoza said.
"We have a witness uniquely qualified to talk about how the medical marijuana laws work in this state," Cardoza said. "There are a number of questions that are purely questions of law that could have and should have been answered by the grand jury counsel."
He said grand jurors' legal questions should be directed to the grand jury counsel, who under Hawaii law is assigned to receive such questions, conduct legal research and provide appropriate answers.
"This court can't put a stamp of approval on using a witness to fulfill that role," Cardoza said.
"The Hawaii Constitution provides grand jurors with their own counsel," Lowenthal said after the judge's decision. "The ruling today reaffirms the constitutional requirement that legal questions are to be addressed to independent counsel, that legal research is to be conducted by that counsel and that legal answers are to be provided by the legal counsel."
Said attorney William Sloper, representing Cox: "We're happy that the judge saw that the government abused its role in the grand jury proceedings."
Attorney Anthony Vierra, representing Hirotsu, commended the judge "for making the difficult, but correct choice in finding that the grand jury was provided, and relied upon, legal advice by someone other than their own counsel, which is contrary to law."
"In these times of over-the-top conservative rush to provide security at any cost - most often liberty - the people of Maui and the state can sleep a little better knowing that their constitutional rights are being guarded and protected, no matter how unpopular it may seem," Vierra said. "Given the ease that the crackpots equate being 'soft on crime' is with being unpatriotic, it takes a great deal of courage to the the right thing. The court did leave the door open for refiling of the charges if the prosecutors can do so without violating the law."
Murphy said that Patients Without Time continues to provide information, referrals and consulting services to medical marijuana patients.
"We never sold over 3 ounces," he said after the hearing. "Hopefully, now the prosecutor will see that the law needs to be redefined."
A seventh defendant, Douglas Kaleikini, 55, was placed on one year's probation and ordered to pay a $300 fine after pleading no contest to a reduced charge of criminal conspiracy in the case.
NewsHawk: User: 420 MAGAZINE
Source: The Maui News
Author: Lila Fujimoto
Copyright: 2010 The Maui News
Contact: Contact Us - Mauinews.com | News, Sports, Jobs, Visitor's Information - The Maui News
Website: Judge throws out charges tied to alleged pot trafficking - Mauinews.com | News, Sports, Jobs, Visitor's Information - The Maui News
"This ruling is not an attempt by the court to rewrite the medical marijuana laws in the state of Hawaii," Cardoza said. "This is not a ruling on the merits of anyone's case.
"The court concludes that the procedure followed before the grand jury was flawed. Dismissal without prejudice is warranted."
Because the dismissal was without prejudice, the prosecution could again seek an indictment in the case.
Deputy Prosecutor Timothy Tate said that will be done.
The defendants were among seven people arrested in November 2008 as part of "Operation Weedkiller." Police reported seizing hundreds of marijuana plants and clones, processed and unprocessed marijuana, drug paraphernalia, cash and a vehicle during a two-year investigation.
The probe centered on the medical marijuana advocacy group Patients Without Time, which police said exploited medical marijuana laws to sell the drug to hundreds of people.
Those arrested included Brian Murphy, 53, who founded and heads the group; Brian Igersheim, 31, of Makawao; Stuart Hirotsu, 48, of Wailuku; William "Bill" Cox, 48, of Haiku; John Cooper, 40, of Kihei; and Robert "Bobby" Armitage, 58, of Wailuku. All had pleaded not guilty to criminal conspiracy, with some of the defendants facing additional drug charges as well.
Wailuku attorney Ben Lowenthal, representing Igersheim, filed the motion seeking the dismissal of charges, with the other defendants joining in.
At issue was the grand jury testimony of Keith Kamita, chief of the state Narcotics Enforcement Division, who administers Hawaii's medical marijuana law. Lowenthal said Kamita provided a "misleading" legal opinion.
In addition to explaining how the medical marijuana program works, Kamita testified about some of the defendants' participation in the program. "This is a very fair proceeding," Tate said. "Due process was not violated at all."
He said the only error was Kamita's testimony that Murphy did not have a valid medical marijuana card at the time.
Because of that testimony, attorney Chris Dunn said his client Murphy was prejudiced by being "portrayed as a complete scofflaw."
Murphy did have an active card, Tate said. But he said that in two raids, police found Murphy with "pounds of marijuana, well in excess of the statutes" limiting the amount of marijuana that a patient can have.
Cardoza said transcripts of the grand jury hearing indicate that Kamita was asked "30 or more questions" that might be considered questions of law.
After Tate asked Kamita questions, including requirements for obtaining a medical marijuana permit and limits on amounts, grand jurors also began asking Kamita questions relating to the law, Cardoza said.
"We have a witness uniquely qualified to talk about how the medical marijuana laws work in this state," Cardoza said. "There are a number of questions that are purely questions of law that could have and should have been answered by the grand jury counsel."
He said grand jurors' legal questions should be directed to the grand jury counsel, who under Hawaii law is assigned to receive such questions, conduct legal research and provide appropriate answers.
"This court can't put a stamp of approval on using a witness to fulfill that role," Cardoza said.
"The Hawaii Constitution provides grand jurors with their own counsel," Lowenthal said after the judge's decision. "The ruling today reaffirms the constitutional requirement that legal questions are to be addressed to independent counsel, that legal research is to be conducted by that counsel and that legal answers are to be provided by the legal counsel."
Said attorney William Sloper, representing Cox: "We're happy that the judge saw that the government abused its role in the grand jury proceedings."
Attorney Anthony Vierra, representing Hirotsu, commended the judge "for making the difficult, but correct choice in finding that the grand jury was provided, and relied upon, legal advice by someone other than their own counsel, which is contrary to law."
"In these times of over-the-top conservative rush to provide security at any cost - most often liberty - the people of Maui and the state can sleep a little better knowing that their constitutional rights are being guarded and protected, no matter how unpopular it may seem," Vierra said. "Given the ease that the crackpots equate being 'soft on crime' is with being unpatriotic, it takes a great deal of courage to the the right thing. The court did leave the door open for refiling of the charges if the prosecutors can do so without violating the law."
Murphy said that Patients Without Time continues to provide information, referrals and consulting services to medical marijuana patients.
"We never sold over 3 ounces," he said after the hearing. "Hopefully, now the prosecutor will see that the law needs to be redefined."
A seventh defendant, Douglas Kaleikini, 55, was placed on one year's probation and ordered to pay a $300 fine after pleading no contest to a reduced charge of criminal conspiracy in the case.
NewsHawk: User: 420 MAGAZINE
Source: The Maui News
Author: Lila Fujimoto
Copyright: 2010 The Maui News
Contact: Contact Us - Mauinews.com | News, Sports, Jobs, Visitor's Information - The Maui News
Website: Judge throws out charges tied to alleged pot trafficking - Mauinews.com | News, Sports, Jobs, Visitor's Information - The Maui News
