By the time the trial of John Berchielli entered its third day, it had become difficult to tell where the prosecution’s case had ended and the defense’s case had begun. Not only were several witnesses called out of order, but co-defendant Sheldon Webber had taken the stand and made admissions that were much to the detriment of his long-time friend.
“He told them he had seen me sell pot in my house,” Berchielli described Webber’s testimony, shaking his head solemnly. “He said he thought everyone I sold to had a doctor’s rec., but he didn’t know for sure.”
It was another death-nail in Berchielli’s defense, but the move had a clear advantage for his co-defendant -- the prosecutor quickly responded by dropping the distribution charges against Webber. It left only two counts applying to Webber, but Berchielli still faced the full five, and did so with a defense that seemed shakier and shakier all the time.
Jury selection had gone against his favor, his chance for a mistrial had slipped away, and his best buddy had testified against him. Just when it seemed things couldn’t get worse, they did -- the prosecutor began vigorously opposing Berchielli’s doctor as a defense witness. It began to appear as though the defense might not be able to present a case at all.
The situation with Berchielli’s medical marijuana recommendation was a mess, through no fault of his own. When Berchielli was busted, he had a valid recommendation from Dr. Timothy Trompeter. Unbeknownst to Berchielli, however, Dr. Trompeter was having some serious legal troubles of his own, and at precisely the same time.
Just one week after Berchielli’s bust, Dr. Trompeter submitted to an interview with the Medical Board of California. The Board was reviewing the criminal charges against Dr. Trompeter, which followed the doctor’s recent arrest in Martinez, CA, for driving erratically under the influence of methamphetamine. During the interview, Dr. Trompeter told the Board that his wallet had been stolen by a hitch-hiker he had picked up during a road-trip, after which he got lost and drove around aimlessly until a police officer pulled him over for skipping two stop signs. Unable to produce any identification or successfully slip a glass pipe out of the officer’s sight, Dr. Trompeter was taken into custody and given a urine test that came out positive for amphetamines. He was also tested for amphetamines at the conclusion of the February 2006 interview, and that test came out positive as well.
In March 2006, only a month after Berchielli’s bust, the criminal complaint was filed against his physician. Dr. Trompeter pled guilty to four drug-related offenses, taking a plea deal that required two years of probation. The Medical Board of California immediately ordered an addiction/psychiatric review of the doctor, and the results were staggering. Dr. Trompeter has a long history of drug theft that reaches back to his early employment at a pharmacy and culminates during his residency in pediatrics, when he was caught swiping Valium from crash carts. Following this bust, the doctor was found unconscious on an overdose combination of Valium and Vicodin, and soon after his recovery entered the California Medical Board’s diversion program. He successfully finished the program after five years of participation, but the drug busts began again shortly afterwards. His psychiatric evaluation found that “his ability to practice medicine is impaired by his ongoing use of drugs,” and after a hearing in front of Administrative Law Judge Ruth S. Astle, Dr. Trompeter’s license to practice medicine was promptly revoked.
Clearly, Berchielli would need a new doctor if he wanted physician testimony during his trial. Within days of the criminal complaint against Dr. Trompeter, Berchielli sought out a more upstanding physician, Dr. Robert Sullivan. But this was just the beginning of his struggle to get approval for a doctor’s testimony. Dr. Sullivan’s viability as a witness was blocked up until the very last minute, as prosecutor Maureen O’Connor claimed that the decision in California v. Rigo denied legal protection from post-arrest recommendations. Fortunately for Berchielli, the defense was on the ball regarding this citation, and able to successfully argue against the applicability of the Rigo case. The battle was not won there, however -- even with Dr. Sullivan’s acceptance as an expert witness, the subject matter of his testimony became a hotly-contested issue. He would be allowed on the stand, but what he was permitted to say there was strictly limited.
At issue was whether Dr. Sullivan would tell the jury that he had determined that Berchielli’s medical needs required an amount of marijuana in excess of the guidelines set by his county of residence.
“But exceed it by 1363 plants!?” the judge asked the defense incredulously. "Is that what you're suggesting?"
Defense attorney Joni O’Connor calmly explained that California’s Senate Bill 420 allowed for higher amounts to be recommended by physicians on a case-by-case basis, but even a laborious read-through of the law did not soothe Judge Mason’s doubts. “You’re not trying to get from him the idea that 1363 plants was reasonable in this case?” the judge asked about the doctor’s proposed testimony.
The prosecutor was quick to jump in and provide the answer. “[The doctor] would say, ‘There are no guidelines - they don’t apply,’ ” Maureen O’Connor predicted, confirming the judge’s fears. “He would just say, ‘I recommend [Berchielli] use as much pot as he wants to use.’ ”
“I think it’s beyond his authority to make that statement,” the judge concluded about Dr. Sullivan. “I’ll stop him if he says something about the meaning of a statute.”
And, true to his word, Judge Mason became a vigilant watch-dog of semantics once Dr. Sullivan was finally cleared to take the stand. As the soft-spoken, bookish doctor bent to accommodate the judge’s demands, his testimony began to seem like a linguistic struggle. In particular, Judge Mason objected to the doctor’s use of the word “can.”
As Dr. Sullivan was answering a question about the ways that medical marijuana is administered, he began with a simple list, “It can be ingested in solid and liquid form, in tinctures and --”
Judge Mason cut him off, laying down the first of the doctor’s vocabulary restrictions. “I will ask you to not use words like ‘can’ or ‘may,’ ” the judge demanded. “You are not the one to say what is legal or what is permitted under the law.”
“Oh, I see,” Dr. Sullivan said thoughtfully. Perhaps the reasoning for this rule was clear to the doctor, but to observers it seemed unnecessary and out of place. In the audience, foreheads crinkled in confusion.
Nonetheless, Dr. Sullivan got his own opportunity to make corrections on language use. While referring to the dried marijuana found at Berchielli’s home, the judge repeatedly over-stated the amount as 332 ounces. He only changed his statements once the doctor reminded him that the amount was far less - 332 grams, which is equivalent to less than 12 pounds. And Dr. Sullivan followed up his correction by affirming that this was indeed a reasonable amount for Berchielli to have in his possession.
Beyond this assertion, Dr. Sullivan was asked little that pertained to Berchielli specifically. In fact, the overwhelming majority of the questions in cross-examination were regarding marijuana in general. It was important to the prosecutor to extract testimony about the reasons that marijuana cannot be prescribed, which she followed up with a series of questions suggesting Marinol to be a solution to the needs of medical marijuana patients.
Dr. Sullivan, however, drew a clear distinction between the plant and the pharmaceutical drug. “Chemically, Marinol is not like the plant - it just has THC,” the doctor explained. “Marinol is not a fitting alternative to the plant. I don’t recommend Marinol.”
Maureen O’Connor then turned to an earlier part of the doctor’s testimony, when he had declared that marijuana is not physiologically addictive. “But isn’t it addictive in other ways?” the prosecutor asked leadingly.
The doctor explained that people who stop using marijuana do not go through withdrawal symptoms similar to those suffered by people who quit physiologically addictive drugs. He did point out, however, that people who use marijuana become accustomed to it. “It’s like your cappuccino on the way to work - you get used to it,” Dr. Sullivan said, glancing around at the Starbucks cups that were ubiquitous in the courtroom during the trial. “And if something helps you, most of us would say you needed it.”
The doctor had cleverly fashioned an analogy that appeared to resonate with those who were listening, and he did it in his gentle, soft-spoken manner. If courtroom observers were expecting a more vigorously outspoken witness, they didn’t receive him until Chris Conrad took the stand. It was then that the jury and the audience saw an entirely different approach to an invasively probing cross-examination.
Predictably, Conrad spent the first several minutes of his testimony laying out his qualifications and establishing his expertise with the yields and dosages of cannabis plants. He detailed the scientific aspects of his work, including international research on marijuana gardens, and also his political involvement in advising John Vasconcellos on state legislation regarding medical marijuana. As an expert witness in over 130 cases in state court alone, Conrad clearly had the experience necessary for the task ahead of him. His familiarity with the witness stand came through in his confident bearing and his forethought in spelling out obscure terms for the court reporter, but there was something else that was different about Conrad -- he addressed the jury when he spoke. The majority of witnesses look at the examining attorney when they answer questions, but Conrad directed his words towards the jury, along with his charming smile.
Quickly, however, Conrad’s testimony was directed towards the nitty-gritty - explaining the purpose of a 1363-plant garden. “A thousand plants sounds like a lot,” Conrad prefaced. “He could be selling the plants on the black market. Or he might be sharing them with other patients. Or it could be that he’s doing research. Or another explanation would be that he’s having problems growing.”
To reinforce this last point, Conrad had an enlarged photograph of Berchielli’s plants put on display and pointed out the visibly damaged sections of the garden. “If it’s going badly, some people just try to grow more, but diseases often jump from plant to plant.” Conrad then gestured across the photo, showing how the unhealthy reddish-brown and yellow colors appeared to be in the process of moving across the span of the garden. “Mold moves by air patterns,” he told the jury, “and with the boxed-in area, the wet cubes and the heat from the lamps, this was the perfect environment for mold.”
Conrad’s contention? That the high plant numbers in Berchielli’s garden may not have been motivated by commercial greed, but by an attempt to generate just a few healthy plants by continuously adding to a sick and dying garden. It was an interesting theory, and not altogether implausible when considering the desperate tricks of logic that occur when the human brain is faced with the dismay of personal failure. Denial has a reasoning of its own, after all.
“This garden is the opposite of commercial,” Conrad said. He drove this point home by stating that Berchielli’s operation contained numerous varieties and that his plants were not flowering. “Since it was February, you could still get them to flower, but that doesn’t appear to be what he’s doing at all.”
Even if Berchielli had intended to bring his plants to a flowering stage, Conrad noted, it’s unlikely that they would have made it to maturity. “Half of them look like they would be lucky to survive,” he said, giving the photograph an intense visual scan. “If the problem goes on, it could knock many of them out.”
The prosecutor, predictably, was more skeptical of this claim. “Could a master gardener address problems in a grow?” Maureen O’Connor questioned the witness, undoubtedly implying that Berchielli could have used his green thumb to revive the garden and bring 1363 plants to maturity. After all, Berchielli's résumé boasted over a thousand hours of experience as a master gardener certified by the University of California.
“Yes,” Conrad said frankly.
“So if someone has a trained eye and is focused, they could catch the problem and salvage the garden?” the prosecutor asked slyly.
But Conrad was not so willing to go along with that contention. “It depends on the problem and the severity,” he told her simply.
Blocked, she sighed, shuffled a few papers at her podium, and looked up brightly. “Would you say you have more experience with indoor or outdoor gardens?”
Conrad paused for a moment, his gaze going towards the ceiling while he pondered. “Probably indoors,” he decided. “Indoor growing has really taken off in this state.”
“Yes, it has,” the prosecutor echoed with emphasis and a tone of exasperation. She paced for a moment, hesitating before making her pounce. “Are you a card-carrying member of NORML?”
Conrad admitted that he was, but he emphasized his modifications of the prosecutor’s description. The group, he insisted, did seek to legalize marijuana for all purposes, but only for adults 18 years of age and older. He also admitted to receiving an award for citizen activism from NORML in 2004.
Satisfied on this point, the prosecutor shifted tactics. “And weren’t you involved in attempting to create a religion based on marijuana?” she inquired.
“I coined the term ‘Cantheism,’ ” Conrad explained. “It was based on research I had done on human religions - Hinduism, Buddhism, etc. - that involved the mystical use of marijuana.”
“But you were promoting this religion?” the prosecutor suggested.
“I wouldn’t say promoting - I was not proselytizing,” Conrad clarified. “I wanted to create an article explaining this religious use.”
Maureen O’Connor shook her heavily-highlighted tresses. “But aren’t you the founder?” she asked.
“I wrote the academic paper,” Conrad reiterated, refusing the title of founder.
The prosecutor then read aloud a printed version of the Cantheist oath. “‘I believe that Cannabis Sativa L. is the useful cane and the true hemp,’” Maureen O’Connor spoke with a show of faux reverence.
“I took the Catholic creed and adapted it,” Conrad said at a pause in the prosecutor’s recitation.
“‘The cultivation and dissemination of cannabis are honorable professions,’” Maureen O’Connor continued reading, her voice full of grave sarcasm. “‘I vow to protect the Cantheist community and its values.’”
Conrad suddenly turned towards the bench, his concern evident. “Your honor, I believe we are running afoul of Evidence Code 789,” he submitted, only to be met by a blank expression from the judge. “That a person’s religious beliefs or lack thereof are not relevant to a witness’s credibility,” Conrad continued, attempting to explain the code to a clearly confused Judge Mason.
After he sent the jury out of the room, the judge appeared perturbed. “I must say that it’s unusual to have objections coming from the witness seat,” he muttered as he began to thumb through a thick, hardbound book to look up Evidence Code 789.
The prosecutor also seemed to be irked by Conrad’s behavior, especially at the presumption that he would be permitted to object to testimony. “I’m sorry - I don’t know who the attorney is here,” she said snippily, “but I am using this evidence. If the witness has a bias, I think it’s important this be brought out.” Turning to Conrad, she made her conclusion, “And I don’t think your ‘religious beliefs’ are privileged under Evidence Code 789.”
The judge finally located the proper passage from within his unwieldy volume, and suddenly discovered that he was the foremost champion of the code which he had completely forgotten only a moment before. “I will take second place to no one in this county for my profound belief in 789,” he declared self-righteously, “but I am not convinced that this claim is elevated to the level of a 789. Who is to say it’s a religion or just a belief?”
It was then that the judge employed a shocking and incongruous analogy in an attempt to illustrate his position. “Can one come up here and say 'I’m a pedophile and I believe it should be legal, and I feel so strongly about it that this makes it a religion’?” the judge said rhetorically, effectively comparing Conrad to a proponent of sexual abuse. “He said he wrote a creed to argue for the legalization of marijuana. I don’t believe a creed can be elevated to the level of a religion. I think this is a fair cross-examination of a man who has taken a position.”
Joni O’Connor made a single effort at swaying the judge. “But this is not a relevance issue, your honor,” the defense attorney attempted. “The evidence code says that raising a religious issue to attack credibility is not admissible.” It was all she could get out before her concerns were swept away in the swift current of the judge’s ruling.
“I don’t think Evidence Code 789 precludes [the prosecutor] from a vigorous cross-examination of the expert witness in this case,” Judge Mason said firmly, before criticizing Conrad for raising the issue. “I don’t think he’s in the position to tell the court what’s legal and what’s not. Legal objections should come from counsel.”
After the jury was summoned and in place, defense attorney Arturo Reyes took over the questioning. “Does Cantheism promote perjury in court,” he asked pertly.
“No, it does not,” Conrad confirmed.
“Have you ever lied on the stand?” Reyes inquired.
“No, I have not,” Conrad said with visible pride.
This established, Reyes switched to the subject of plant yields. “If only one plant had buds, what would the weight of usable marijuana from that plant be?”
“There were no buds,” Conrad claimed, putting a photo of Berchielli’s grow site on display to demonstrate his point. “None is mature,” he said of the plants. “None is budding.”
Judge Mason interrupted, again perplexed. “You said a plant is not mature unless it has buds,” he began. “Isn’t that like saying that a woman is not a mature woman unless she has children?”
“No, that would be seeds, your honor,” Conrad corrected, his face folded in a placid smile.
As to the theory that Berchielli was attempting to get his plants to bud, Conrad was doubtful. “Growing outside in February is not a good idea,” he told the defense attorney. “The sunlight at that time sends two conflicting messages to the plants.”
Joni O’Connor then initiated a line of questioning directed towards getting Conrad to admit that he had previously encountered gardens that he considered to be for the purposes of sale, and that Berchielli’s grow was not one of these. Conrad mentioned the absence of cash at the location, as well as the fact that people were not calling or dropping by to make purchases during the time of the bust. Both of these factors, he testified, were aspects of other situations that he had judged to be sales cases. As for the fact that scales were found in Berchielli’s home, Conrad was not ready to admit this was evidence of distribution. “I don’t consider a scale to be strong indicia for sales,” he said in summary.
Maureen O’Connor had a brief follow-up. Approaching Conrad again, the prosecutor asked, “So if you can’t work the amount into something that fits into medical marijuana, then you won’t take the case?”
“That’s a factor,” Conrad replied.
“Nothing further, your honor,” the prosecutor said smugly, returning to her seat.
And with that, the defense’s case concluded. The jury had heard from a couple of likable expert witnesses, but little else was presented. There was no testimony from the doctor Berchielli had at the time of his arrest, nor were there any witnesses to satisfactorily show that Berchielli had indeed been growing for a collective. Those deficiencies, already conspicuous, were to become an essential part of the prosecutor’s argument during closing statements. For the time being, however, the defense rested on the weight of its experts, and hoped this would prove to be enough for acquittal.
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