The Bungling of Medical Marijuana in California’s Capital
June 11th, 2007 - June 25th, 2007
SACRAMENTO, CA - A charge of child endangerment is the one of the biggest legal threats to parents who are also medical marijuana patients, and the trial of John Berchielli is a powerful lesson in the dangers of this prosecutorial trend.
 Regarded by his peers as a model of civic involvement, Berchielli is best known for his volunteer work with a range of childhood nutrition programs. His February 2006 arrest sent shock waves through his community, but even more stunning were the charges themselves. The man who had devoted his life to lobbying on behalf of children and who was contemplating candidacy for school board was suddenly facing a count of child endangerment. The basis for this charge, however, was nothing more than the presence of marijuana plants and the homemade security devices found around the fence of his garden. Nevertheless, as the details of his case unfolded, it proved a difficult one to defend.
 The longtime activist came on law enforcement’s radar when his ex-wife was busted for welfare fraud and tipped investigators off to a marijuana garden at the home where Berchielli was raising their adolescent daughter. Officers then secured a warrant that relied heavily on interviews with Berchielli’s 90 year-old grandmother, who suffers from senility, and proceeded to the residence for the search. It was then that they discovered even more than they had bargained for -- a backyard grow area containing over a thousand marijuana clones.
Though tiny in size, the sheer quantity of plants presented the first hurdle for Berchielli’s defense. The official count settled at 1363, a number that sounds remarkable even to some large-scale growers. However, Berchielli’s status as a legitimate caregiver under state law offered a strong argument for acquittal. The only problem was in the demonstration.
Berchielli had been supplying clones to the local medical marijuana dispensary Alternative Specialties, which was shut down just months earlier during a collaborative raid by local and federal law enforcement agents. With the dispensary’s owner facing his own prosecution in federal court and the remaining operators hiding out, Berchielli was unable to procure the patient records he would need to bolster his defense. Deprived of verifiable records and testimony to support his claim, convincing a jury that this was a collective grow became quite a challenge indeed.
To make it worse, Berchielli was also hit with a charge for the barbed wire and exposed nails that were found in his backyard, as well as for an electric wire that was mounted on the inside of his fence. Although he claims that all of the fortifications to his yard were an effort to control his pit bull, the District Attorney decided that they instead qualified as camouflaged booby traps. And make no mistake -- booby traps are no laughing matter. A conviction on that charge alone lands a defendant with a mandatory minimum prison sentence, and in Berchielli's case, it also added substantial weight to the child endangerment count he was facing. To prove the endangerment, the prosecutor put equal emphasis on the perils evidenced by the backyard fortifications and on the hazards of the marijuana itself.
 For Berchielli, acquittal would depend upon two things - a solid defense attorney and a sympathetic jury. He was deprived of both. Not only did pre-trial rulings prevent him from switching his designated public defender, but the trial judge purposefully eliminated jurors who confessed to having an opinion about medical marijuana. Jury selection became a tedious ordeal that consumed multiple days and went through approximately 215 prospective jurors.
“So much for a jury of my peers,” Berchielli commented grimly at the conclusion of the process.
But as he was about to discover, it was only the beginning of his tribulation.
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