February 27, 2017
Michael Cindrich Wins His 4th “Not Guilty” Cannabis Verdict in 12 Months
Originally posted on: http://www.michaelcindrich.com/blog/a-post-prop-64-not-guilty-verdict-in-san-diego/
San Diego, CA – After a week long trial and an hour of jury deliberations, Anthony Palumbo finally heard the words he had been waiting almost a year and a half to hear: Not Guilty! His case began the way so many medical cannabis cases begin. A group of patients get together and decide to set up a collective grow. They spend months preparing, thousands of dollars on supplies, and countless hours constructing the operation. In this case, it was three greenhouses constructed in unincorporated San Diego. Anthony Palumbo and other patients researched the law and decided to establish a 96 plant grow for 16 patients. All of them were family members and close friends of Palumbo, each with different serious illnesses that allowed them to use medical cannabis.
At the time the integrated San Diego Narcotics Task Force served the search warrant, there were 87 plants approximately 8-10 feet tall and three collective members present at the cultivation site. Palumbo and the other individuals informed officers that they were part of a legitimate collective, but the officers didn’t want to listen. Anthony Palumbo, Aaron Stanley, and Gilbert Diaz were arrested for cultivation of marijuana and possession of marijuana for sale.
The case took months to proceed through the El Cajon courthouse. Cannabis attorney Michael Cindrich was retained by Palumbo, and he quickly began compiling documents to be used in the defense. Doctors’ recommendations and witness statements were presented to the district attorney’s office, but still they would not dismiss the case. At the preliminary hearing Defendant Diaz was dismissed by the judge based on insufficient evidence. He was clearly a worker and not responsible for the operation of the grow. Proposition 64 came along which caused a delay of this and other similar cases while everyone waited to see if these offenses would be misdemeanors. Prop 64 passed, the charges were reduced to misdemeanors, but still the DA’s office would not dismiss the case.
The trial was over before it began. Michael Cindrich had already won three not guilty verdicts on cannabis cases in the last twelve months, and had prepared a defense that was sure to withstand anything the prosecutor could throw at it. There were several key moments that defined the case. Opening statements were when the jury got to see that this wasn’t an open and shut cultivation case. Cindrich’s skillful cross examination of Detective Stevens is when they got to see that the prosecution wasn’t telling them the entire story. The defense witness testimony, including the testimony of Palumbo himself, showed how this collective was lawfully established and operated. The closing arguments summed up the weakness of the prosecution and the strength of the defense. A jury of San Diego residents, who were a diverse group of men and women, were given the chance to decide the fate of the defendants, but their decision would not only impact these individuals – this decision could play a major role in whether the DA’s office would continue to prosecute these cases in the post-Prop 64 era.
Fortunately for everyone involved, the jury came back “Not Guilty” on both the cultivation and the possession with intent to sell counts. Unlike Cindrich’s last three trials, this one took a bit longer than ten minutes for them to decide. After the verdict one of the jurors indicated that the lack of a formal corporation and detailed records was the hold-up, but that since it was such a small collective they didn’t feel these items were necessary.
Will this case stop the cannabis-related prosecutions altogether? Probably not, as there will always be cases that grab the attention of the District Attorney’s Office. What it will do is to help give a second thought to those directly involved in the decision to proceed to trial. For every defendant who refuses to take a plea and decides to stand up for his rights, there is a prosecutor who has to explain to his or her supervisor why they lost the case. As public opinion continues to support the legalization of cannabis, these cases will slowly start to fade. It’s already begun since the passage of Prop 64, and will continue to move forward.
If you have never watched a medical cannabis jury trial, or are interested in how a collective defense is presented, below is a detailed day-by-day account of this case.
Day One of Trial: Motions in Limine
Today defendants and medical cannabis patients Anthony Palumbo and Aaron Stanley appeared for the second time in two days in the El Cajon courthouse department 11. Yesterday they were sent out for trial to a judge who is not known for her adherence to the black letter law. Because this is a cannabis case with a complex medical cannabis defense, attorney Michael Cindrich decided to exercise his challenge and request a new judge. Unfortunately, there were not additional judges available, so the parties were ordered back the following day. Upon arrival today, the defendants and attorneys were informed again by the judge that there were not enough courtrooms available to hear the case. As a result, all parties were sent Downtown so the case could proceed with a judge at the San Diego Central Courthouse.
Fortunately for the defendants, they were sent to a judge who appeared interested in learning cannabis law, adhering to legal principles, and giving the defendants a fair trial. Although Judge Majors-Lewis used to be a prosecutor, she seemed intent on balancing the interests of both the prosecution and the defense. After ruling on motions in limine, it was apparent that both sides were given certain concessions that would assist each with the presentation of their respective cases. Ultimately this is all defendants can hope for in the San Diego courts – a judge who is fair and who won’t give in to all of the prosecution’s demands.
It appears that the defendants will be allowed to present their medical cannabis collective defense. They were allegedly cultivating approximately 87 plants, and have over 15 collective members willing to testify. The prosecution’s case rests on an assumption that there was no collective, and that the patient records were only gathered after the arrests took place in August 2015. We will see how the evidence plays out in front of the jury, but at first glance this seems to be another case of wasted time and resources courtesy of District Attorney Bonnie Dumanis.
Jury selection begins tomorrow morning at 9 am. Openings statements will likely take place late tomorrow afternoon, and the prosecution’s first witnesses presented at 1:30 on Friday.
Days Two and Three of Trial: Jury Selection and Openings
Day two of trial began as anticipated. A jury pool of 60 was sent to the courtroom around 10:30 am. They were a diverse mix of people. It was shocking how many of them had family and friends in law enforcement, and also how many worked for pharmaceutical companies. There were doctors, lawyers, and even someone who works for a local cannabis company. Unfortunately that one didn’t make it on the jury. However the defense lucked out with someone whose family member had been arrested for a cannabis-related offense, another whose family member is a medical cannabis patient, and another from a Latin American country who has little trust for law enforcement. All things considered, it appears to be a good jury for the defense. The jury was selected by 3:30 p.m., but unfortunately the young prosecutor was having technical difficulties with the television monitor for his power point, which ultimately prevented opening statements from taking place that day.
Day three began where day two left off, with the presentation of opening statements. The prosecution’s opening was as expected, full of factual errors and misinterpretations of the law. Attorney Michael Cindrich was quick to set the record straight, delivering a ten minute lecture correcting the faulty legal analysis laid down by the prosecution. When it was over and done, you could see the anticipation from the jury. Counsel for defendant Stanley chose to waive her opening, giving the defense an opportunity to present an opening just prior to the defense case.
In a strange occurrence, the defense was forced to call two witnesses out of order due to their unavailability the following week. The first witness was defendant Palumbo’s aunt, who currently lives out of state. She explained how she received her doctor’s recommendation, and why she chose Palumbo as the source of her medical cannabis. She admitted that she was biased because of her relationship with the defendant, but it was apparent to all that she was telling the truth regarding her involvement with the collective.
The second witness was related to one of Palumbo’s close friends. She has been fighting different forms of cancer since 2004, and tried all of the standard forms of treatment before choosing cannabis as a safer alternative. She was referred to Palumbo because of his knowledge and compassion. She testified that her oncologist verbally recommended her use of cannabis, and she informed Palumbo of this recommendation at the time she contacted him. She wasn’t aware of what a “collective” is, but said she associated with Palumbo so that he would cultivate and provide her medicine. That’s one of the strange things about the Medical Marijuana Program Act (MMPA) – you can be part of a collective and not even know it. She was a believable and important witness for the defense, showing the jury that the defendants were helping legitimate patients with life threatening illnesses.
The day ended with Detective Matt Stevens on the stand. The young prosecutor was laying the foundation, one by one, for the introduction of approximately eighty photographs into evidence. The entire courtroom, including the judge and jury, slowly began to drift off and lose interest in the presentation. As both defense counsel objected over and over again to “cumulative” evidence, the judge finally decided to stop early for the day to have a talk with the attorneys. After the jury was sent away for the weekend, Judge Majors-Lewis had some words for the prosecutor. He was ordered to spend the rest of the day with Detective Stevens reviewing the photos and determining which ones were the most important for his case. The judge would not allow further time to be wasted on needless cumulative evidence.
Day Four of Trial: The Prosecution’s Case
Day four began with Matt Stevens still on the stand. The Prosecutor continued to question him regarding his training and experience as it relates to cannabis cases. He also testified as to what he witnessed when he raided the grow: 87 plants 8-10 feet tall in three greenhouses, three individuals on site who were arrested, two firearms and a pellet gun, and less than an ounce of processed cannabis. He testified that he didn’t find any evidence of a collective, even though all defendants claimed they were patients and part of an informal collective.
Perhaps the best part of the trial began upon Michael Cindrich’s cross-examination of Detective Stevens. This was not Cindrich’s first encounter with Stevens – just last year a similar cross examination took place in the People v. John Mazula trial. Building on the information that was obtained in that trial, Cindrich proceeded to embark on a masterful cross examination that included a script of several areas of impeachment. Stevens admitted that he received much of his training from the California Narcotics Officers Association (CNOA). Cindrich presented him with a CNOA policy paper which read “Marijuana is Not a Medicine.” Stevens testified that he was a member of the NTF Task Force Team 9. Cindrich went down the same line of questioning as he had done in the Mazula trial, showing him a picture of the now famous “Fuck the Growers – Marijuana is Still Illegal” tshirt worn by one member of the NTF during a raid of a medical cannabis grow in 2014. As in the Mazula trial, Stevens admitted that he was given one of those shirts, but that he had thrown it away. Cindrich asked him if he had ever been sanctioned by a court for knowingly destroying potentially exculpatory evidence, to which he responded “no.” Cindrich then asked him about the case of Deborah and Dennis Little, where the prosecution was given evidentiary sanctions because Stevens destroyed the plants prior to giving the defense an opportunity to examine them. The judge sustained a relevance objection from the Prosecution, but not before the jury heard the question. The information was out there, left to the jury to wonder about how those decisions may have been related to his decisions in this case. The final impeachment moment came when Cindrich asked if Stevens had ever made a sworn statement under oath that was factually inaccurate. Of course he hadn’t, right? Directing his attention back to the Littles case, Cindrich pointed out that his search warrant affidavit, signed under penalty of perjury, indicated that he viewed well over 100 plants on the property during a helicopter fly-over, but when he searched the property there were in fact only 29 plants present. Again a relevance objection was sustained by the judge, but not before the question and information were presented to the jury.
Stevens made several other questionable statements while testifying. He indicated that pounds of outdoor cannabis sell for up to $3500, that an average patient only uses a gram or two of cannabis per day and that any more was excessive, and there was no way to tell whether this grow would harvest once a year or have multiple harvests despite the fact that all of the plants were in the same stage of growth and there was no evidence of a perpetual harvest. He also testified that all of the plants appeared healthy, a statement that was put into question when Cindrich presented him a photo that one of his officers had taken which showed wilted yellow leafs on a group of plants. We later learned from defendant Palumbo that these plants were rapidly dying due to root rot, but Stevens testified that a little more water would have helped them.
The prosecution presented two more investigating officers, both of whom gave information that conflicted the information provided by Stevens as to standard dosage, cost per gram/pound of outdoor and green house cannabis, and average amounts used by patients. The prosecution’s case ended with testimony from the lab technician who testified that the cannabis recovered tested positive for cannabis. This issue was not in dispute, and though the parties agreed to stipulate to this, the prosecutor still wanted to put this witness on the stand. With this final witness, the prosecution rested their case. That was it – a presentation of evidence that was largely not disputed by the defense. The actual evidence wasn’t in dispute, only the legitimacy of the informal collective.
Day Five of Trial: The Defense Case
Day five began, and attorney Michael Cindrich indicated that the defense was prepared to present its case. First up was defendant Palumbo’s grandmother Leona, a 93 year old medical cannabis cancer patient. She testified that she received a doctor’s recommendation to use medical cannabis, was a member of this collective, and that she received oils and tinctures from Palumbo. Though 93 years old, she still had her wits about her, and made a great witness for the defense. On cross-examination the young prosecutor started pressing her for more information on her use of cannabis and her association with the collective. Some of the questions were asked in a confusing manner, and Leona had to ask multiple times for clarification. As the prosecutor pressed her harder, he began to look like a bully. Eventually he gave up with his line of questioning.
One by one the defense called friends and family members who were medical cannabis patients and members of Palumbo’s informal collective. They all discussed their medical use, their contributions to the collective, and Palumbo’s character as an honest and trustworthy individual. They also explained that they chose Palumbo as their source of medicine rather than going to a dispensary. With Palumbo, they knew that they were getting pesticide-free, organically grown medicine, and they were getting it at a fraction of the price. In some cases, they were getting it for free.
On cross-examination, the prosecutor tried to find inconsistencies between the testimonies. He asked if they knew the name of the collective, some responding no while others said they believed it was called “Dank Star.” He also focused on how much they used on a daily basis in an attempt to lay groundwork for his argument that the plants were too big and would produce too much medicine for the size of this collective. Fortunately for the defendants, the defense in this case was based on the MMPA authorized numbers of 6 mature plants per patient, so yield of these plants was not relevant. Even if it was, this collective clearly had sufficient numbers through the immediate collective members and through an additional set of members brought in by one of the patients who had his own informal collective.
As the case proceeded, an unforeseen problem arose. A jury in a criminal case such as this generally contains twelve jurors and two alternates. The two alternates are there in case one of the seated twelve has an emergency which forces them to be unable to continue with the case. The previous day one of the jurors did not come to court due to a family emergency. That meant one of the alternates had to take her seat. Two of the jurors had previously informed the judge that they had trips out of state planned for the following day. With the day progressing all parties came to a realization that the case would not be concluded by the end of the day. The case was taking longer than expected and there weren’t many options for how to proceed. The judge was of the opinion that the jurors would have be asked if they were available to come back the following week to hear the remainder of the case. It was the Wednesday before President’s Day Weekend, so all courts were closed the following Monday. This option would require a five day recess, which would give the prosecution five days to try to poke holes in the defense. If the jurors were not available the following week, the court would be forced to declare a mistrial, dismiss the case, and start the trial over again on another day. The parties broke for lunch with instructions to consider alternate options.
When they returned from lunch Michael Cindrich filed a brief that had been prepared by his office staff over the lunch hour. The brief, citing legal precedent, explained that defendants could waive the right to a jury of twelve people. Both defendants would have to agree, and the court would require a waiver indicating that they could not appeal the case for ineffective assistance of counsel based on this issue if they were found guilty. Both defendants were willing to proceed with a jury of twelve. They had spent too much time, and inconvenienced too many people, to stop and restart the case. Unfortunately, the Public Defender’s office didn’t feel the same way. They advised the co-defendant, Aaron Stanley, against waiving his right to a jury of twelve. The PD’s office generally loses more cases than it wins, so a jury of twelve is seen as necessary since it is one more person that can vote not guilty and potentially hang the jury. Medical cannabis cases are a bit different than what they are used to. Michael Cindrich took three cannabis cases to trial in 2016 and received three not guilty verdicts with only ten minutes of jury deliberation in each case. Cindrich and his client were 100% in favor of proceeding with a jury of eleven. Fortunately for everyone involved, the final decision was with Aaron Stanley. He was eager to put this case behind him, and agreed to go forward with the eleven remaining people. The judge dismissed the two jurors who were unavailable the following day, swore in the alternate, and proceeded with the case.
Though defendants have an absolute right not to testify in criminal cases, there was no stopping Palumbo from taking the stand to give his version of events. Palumbo is tall with dreadlocks, has tattoos, and is very spiritual. As attorney Michael Cindrich stated in openings and closings, Palumbo is the image of a medical cannabis grower in California. Palumbo was open and energetic, clearly poised to finally have his day in court. He explained how he learned to cultivate, the steps he took in establishing this collective, and the time, cost, and effort that it entailed. Palumbo testified about his relationship with his collective members, and that they all informed him of their status as patients prior to joining. He testified that he wanted to help his members get healthy, and absolutely wasn’t involved in this operation for the money. In fact, the evidence showed that he lived a pretty meager life – he didn’t have any cash when arrested, and spent many nights sleeping in a tent next to the greenhouses. Palumbo cared about his members, and wanted to make sure that they were getting quality medicine at a price they could afford.
Palumbo also testified about the circumstances leading up to and during the raid. He stated that this was to be the first harvest at this location, and that unfortunately several of the plants had died due to root rot. He wasn’t sure how much medicine would be produced, but he had another collective he could provide to in the event they had more cannabis than they needed to last their collective until the following year’s harvest. Palumbo stated that he kept a file with the patients’ doctors’ recommendations at both the grow-site and his parents’ house. He informed Detective Stevens that he could retrieve these for him, but Stevens had already made up his mind that the defendants would be arrested, and thus ignored any pleas regarding the legality of the operation.
On cross-examination the prosecutor focused on the elements of the defense. What was the size of the collective? Palumbo testified that he originally gathered 16 members to be able to grow a maximum of 96 plants, but that some others had joined. Did he have a formal corporation? Not at the time of arrest, but he had since established one. Did he maintain records for the collective? Since it was a newly formed informal collective there weren’t significant records, but Palumbo had kept track of his expenses and maintained files with his receipts. Were the operators accountable to the members, and did they have any say over the governance of the collective? Palumbo testified that he knew the immediate members personally and that he took their input into consideration when establishing and operating the collective. It was clear that this line of questioning from the prosecution would have been better suited for a large, established collective. These are elements of the defense that, though relevant, are only considerations for the jury. In a smaller, informal collective, these elements aren’t as important as they would be for a standard retail operation. Though the prosecutor attempted to paint Palumbo as a criminal, the answers given were true to Palumbo’s character as a caring operator whose only concern was the quality of his medicine and the well-being of his patients. This was clearly apparent to anyone present in the courtroom.
The defense’s final witness was cannabis expert William Britt. As Cindrich did in his three “Not Guilty” verdict cannabis cases in 2016, he used Britt to bring the defense together. Cindrich asked many of the same questions he asked Detective Stevens, but this time the answers were coming from a patient advocate – a true cannabis expert. Britt easily spotted dying plants in the photos he viewed of the garden. He confirmed that this would likely be a one-harvest per year operation, and emphasized that, due to countless growing considerations, there would be no way to gauge actual final yield until the plants had been harvested. Britt discussed the difference between small, informal collectives and larger retail operations. He gave accurate numbers regarding standard dosing and price per pound of outdoor cannabis. Britt’s testimony, and the entire case, were summed up in Cindrich’s final question: is the defense case you heard today consistent with the operation of a collective under California law? The answer: “Yes. It is”
The young prosecutor attempted a cross-examination, but the damage had been done. He lacked the basic familiarity with cannabis laws, cannabis cultivation, and the cannabis industry to bring out any information that could have slightly harmed the defense case. The presentation of evidence was over, and it was apparent to the people in the audience that he came up short.
Day Six of Trial: Closing Arguments
The first half of the morning on the last day of trial was spent reviewing jury instructions outside the presence of the jury. Though the evidence is important, jury instructions are what can make or break a case. These instructions contain the law that the jury will consider when deciding a verdict, and in a medical cannabis case, they are the key to a not guilty verdict. Unfortunately for the defendants, this judge had never handled a medical cannabis case, and her proposed instructions could have been detrimental to the defense case. Attorney Cindrich wasn’t going to let that happen without a fight. Having been a cannabis attorney for almost ten years, Cindrich skillfully presented several compelling arguments for important alterations to the standard MMPA jury instruction. He cited case and statutory law without referencing notes, and countered each argument against the instructions made by the prosecution and the court. At one point, as tensions spiller over, heated words were exchanged between Cindrich and Judge Majors-Lewis. In the end, the persistence paid off. The judge took her time, reviewed the relevant law, and ultimately agreed to the defendants’ requests. The appropriate instruction was prepared, and a defense win was inevitable.
In a surprise move by Judge Majors-Lewis, defendant Aaron Stanley was dismissed from the case prior to closing arguments. His attorney made a request for a dismissal under California Penal Code section 1118. This section allows a defendant to request a dismissal when the prosecution has not proven their case beyond a reasonable doubt. In this particular case, the only evidence presented regarding Stanley was that he was a member of the collective, was living in a trailer next to the property, and was helping cultivate the plants. In the judge’s opinion, this was not proof that he intended for any of the cannabis to be sold, or that he was involved in cultivating any plants that were not related to his medical needs. With a big sigh of relief, Stanley was out of the case and into the audience with the rest of the spectators.
The prosecutor’s case started as it began, with a closing argument very similar to his opening statement. He relied on a faulty interpretation of the law, and focused on facts that were not relevant to the elements he was required to prove beyond a reasonable doubt. He had been given a case dubbed “mission impossible” by other prosecutors in his office, and it was apparent that he had come up well short of his burden.
Michael Cindrich’s presentation was a different story. By the time his closing was finished, it was clear why he had recently won three quick not guilty verdicts on cannabis cases, and was on his way to his fourth. Cindrich had a solid grasp of the relevant law, and was able to relate all of the evidence presented to different elements of the defense. It was obvious that this wasn’t his first rodeo. When all the dust had settled, everyone who was there in support of the defendant was confident that this would be a victory. The facts of the case, and the way they were presented in relation to the law, only lead to one result. Now it was time to wait for the jury to find its way there.
When the verdict was read, there was an immediate sigh of relief from the defense side of the room. Some people laughed, some cried, some did both. Defendant Anthony Palumbo faced a jury of 11, presented his defense, and received his vindication.
Click here for more information on Michael Cindrich’s cannabis practice.
