The trial of John Berchielli and Sheldon Webber had been exhausting and tumultuous for all involved, and the mood of the courtroom benefited from a collective feeling of relief as the conclusion approached. The time had arrived for counsel to make their last appeals to those seated in the jury box, who would absorb the final pleas of each attorney before disappearing to deliberate.
Since she was arguing for the prosecution, Assistant District Attorney Maureen O’Connor was given the chance to deliver the first and last words heard by the attentive ears of the eight women and four men who comprised the jury. The prim and poised attorney took full advantage of this benefit, merging it with her impressive oratory technique to create a persuasive summary of the case. Her accuracy was slightly off the mark in some areas, and her strategy was cruelly manipulative, but her presentation was compelling and amazingly skillful. By the end of her speech, she appeared to have the jury eating out of the palm of her hand.
The Prosecution Closes
Maureen O’Connor began with a greeting of ‘good morning’ to the jurors, who echoed an answer back in unison. The prosecutor then proceeded to clearly and concretely establish which factors they were to consider when they went to the jury room to deliberate. She placed on the overhead projector a chart that demonstrated what jurors are permitted to look at when coming to a verdict: documents, photos, witness testimony, and the credibility of those witnesses. More to the point, the chart showed what jurors are not supposed to consider: sympathy, sentiment, public opinion, private opinion, prejudice and conjecture, as well as penalty and punishment. In explaining her chart, the prosecuting attorney emphasized her main message. “Feeling has no place in this room,” she said authoritatively, “and it has no place in the jury room.”
As the jurors would soon see, however, the prosecutor was using feeling to her own advantage. As she neared the conclusion of her address, her tone worked up into a fervor of righteous indignation, appealing to the jurors to consider the moral decisions of the defendant, as well as playing on their sympathy for the fate of a helpless child.
But first she addressed the drug-related charges, for which her main focus was convincing the jury to brush aside any thoughts that the defendants’ activities were legal under California’s medical marijuana laws. “Compassionate use can be a defense in this kind of case…it says that it’s not unlawful to cultivate and possess marijuana, as long as it’s a personal amount and it’s recommended by a doctor.” The prosecutor paused to slip a look down at her notes, then raised her head and continued. “The law goes on to say that that amount is 8 ounces of marijuana, typically, and 6 to 12 plants per qualified patient. In this case, there are 332 grams of marijuana. That’s a far cry from 8 ounces. And there are 1363 plants. That’s a far cry from 6 to 12 plants. It’s unbelievable.”
The number of plants was a key point of emphasis for the prosecutor. “Why would someone possess that number of plants for their own personal use? You wouldn’t. Common sense says you wouldn’t.” She then reminded the jury that an officer testifying as an expert witness had given an estimated yield of a half-pound of processed marijuana per plant grown indoors. She speculated that even if disease wiped out half the plants, the remaining crop would yield about 350 pounds of dried marijuana. “What in the world do Mr. Berchielli and Mr. Webber have to do with that much marijuana? They’re selling it.”
Predictably, the prosecutor cut the defendants no slack when it came to the claim that they were providing the plants to other qualified patients. “There’s no evidence that Mr. Berchielli and Mr. Webber were caregivers for anyone else -- taking care of the housing or health needs of anyone else qualified to have marijuana. There’s no evidence of that.”
The prosecuting attorney then reminded the jury, “We didn’t hear from a co-op to show that Mr. Berchielli was providing there for people with marijuana recommendations. Where are the people who say he’s providing for them? These are people you should expect to hear from in this case, but you didn’t.” She appeared unwilling to address the key theory for the lack of such evidence -- that witness testimony would be greatly hindered by the raid of the collective Berchielli had been supplying. The dispensary had been shut down by the action, after which one operator was prosecuted federally and the others were living in fear of arrest. Getting a list of patients had been impossible for Berchielli under such conditions. Nonetheless, the prosecutor continued her attack.
With unfaltering confidence, she asked the jurors to look at what they knew to be true, based on presented evidence. “We know Mr. Berchielli is providing marijuana to Mr. Webber, and we know he’s also providing it to others. Mr. Webber said he believed these people had cards, but he doesn’t know for sure.” It was important to remember, she countered, that the defendants were not qualified to decide who can receive medical marijuana. “Mr. Berchielli can’t decide who gets it. He’s not a doctor. He can’t just give it to whoever he wants.”
Concerning physicians who can decide who qualifies for medical marijuana, the prosecutor declared that there had been no relevant testimony at all. “Where is the doctor who made the recommendation to Mr. Berchielli that he had in February 2006, Dr. Trompeter? We didn’t hear from him.” She gave the words a short moment of silence to let the curiosity settle in a little bit, then put forth her argument. “At the time of Mr. Berchielli’s arrest, that’s what’s relevant -- not what Dr. Sullivan observed six weeks later. The question before you is: was he violating the law? The question is not: would he have been violating the law if he just would have sought out the right doctor?”
The prosecutor then threw her hands in the air in wonderment and continued, “Think about it. Why would you seek out another doctor if you have valid authorization already? I’ll tell you why. He knew his recommendation wasn’t good enough, that it didn’t cover his amount. That shows a consciousness of guilt on Mr. Berchielli’s part.” She then looked the jurors straight in the eyes and said, “This is not about whether marijuana has positive effects. This is about these defendants violating and abusing this law for their own selfish reasons.”
It was an inflammatory statement, but the prosecutor saved her most cutting words for addressing the booby trap and child endangerment charges.
She first referenced the photos she had presented, which displayed the fortifications found in Berchielli’s backyard. “When have you seen fence boards with nails like that?” she asked incredulously. She then reminded the jurors that an officer had testified that you wouldn’t have seen them unless they were pointed out, thereby building up the claim that the boards had been hidden or camouflaged. “These were designed to cause great bodily injury. Now, I’m not condoning trespassing, but these devices…well, you can’t do that. The law says you can’t do that.”
The perils presented by these protective measures, in the prosecution’s view, were evidence in support of a guilty verdict on the child endangerment charge. In fact, according to the prosecutor, the reasons for the security devices were themselves part of the proof that Berchielli had put his daughter in harm’s way.
“Child endangerment involves more than just ordinary carelessness, inattention or mistake in judgment,” the prosecutor said, defining the charge for the jury. “Sergeant Zwolinski said on the stand that [Mr. Berchielli’s daughter] was quiet, distant, non-engaging. She also testified about the condition of the yard. Metal wire, be it razor or barbed wire, is not safe for children. Carpet tack stripping, sharp nails stuck through boards and electrical wires are not safe for children. But what’s also dangerous for this child was the sheer amount of marijuana at the residence. The sheer amount of marijuana puts her in an unhealthy situation.”
Regarding the details of that situation, the prosecuting attorney was happy to explain. “Sergeant Zwolinski testified that marijuana gets into the air, causes fumes. Other officers talked about how drug trafficking brings a whole host of other crimes, such as robbery, assault, burglary. There’s a reason Mr. Berchielli put all that wire and all those nail boards along his fence - he knew what he was doing was dangerous.”
Her voice softened, appealing to the sensibilities of the jurors. “We know there was a bloody shoe. Why would you sleep with a knife under your bed if it’s no big deal, it’s just pot, it’s all good? Because it’s dangerous.” She then listed off the fortifications, describing them one by one. “Mr. Berchielli told officer Felton that he put those things there because people were jumping the fence to get to the marijuana plants. What reasonable person would put a child in such a dangerous situation, where you have to fortify your house this way?”
It was at this moment that the prosecutor delivered her zinger, an accusation she made slowly but with great emphasis, “Mr. Berchielli cared more about his marijuana than he did about his daughter and her safety and welfare.”
The Defense Closes
The prosecutor had hit below the belt, implying that this devoted single father did not sufficiently care about his child, but the defense took the blow with grace. That said, however, it became apparent that the defense attorneys had remarkably little to say in response to the prosecutor’s characterizations.
For Arturo Reyes, Webber’s attorney, brevity was an asset. The smooth lawyer knew how to get a point across with efficient impact, and he could more easily convey his message by using a conspicuously short speech. After all, why would his address be lengthy when there was so little evidence against his client? It was a brilliant approach.
“By now, you’ve all heard the law -- certain individuals are not held accountable for criminal liability for the cultivation and possession of marijuana, and those individuals are qualified patients and caregivers,” Reyes explained. “Mr. Berchielli is a qualified patient. Mr. Webber is his caregiver. He helped water the plants.”
In an elegant set of sentences, the defense attorney had side-stepped the issue of Webber’s expired medical marijuana recommendation and made a strong argument for his innocence on all counts.
Reyes then gave a brief description of Webber’s financial situation, summarizing how his client had struggled for money and independence as he lived on a cot in Berchielli’s garage. “He didn’t go into the house and take marijuana to sell it,” Reyes said of Webber. “He helped Mr. Berchielli tend to his plants, but he didn’t help Mr. Berchielli sell anything. And there was no aiding and abetting, because that would mean knowing the individual was involved with something illegal.”
After just a couple minutes on the floor, Reyes looked level at the jurors and delivered his concluding message. “There is no evidence that Mr. Webber broke any laws,” he told them plainly and sincerely. “Thank you.”
Next to address the jury was public defender Joni O’Connor, attorney for John Berchielli. To say that her style was more subdued would be an understatement -- it was nearly somniferous. She did a bit of mumbling, put forward a few anemic claims, and then awkwardly returned to sit next to her client. She had a look of sheer endurance on her face, as though trying to simply tolerate the remainder of the ordeal.
“The presence of marijuana in the home is not likely to produce great bodily injury,” the defense attorney began, standing motionless before the jury. “A prescription medicine in a home is not likely to cause great bodily injury, so access to marijuana alone is not putting a child in danger.”
It seemed logical enough, but Joni O’Connor would have a more difficult time explaining away the so-called booby traps. “Being uncertain about why the nails were there is not proof of anything,” she told the jury. “Mr. Webber said he touched the electric wire once, and it wasn’t live. And about the boards with nails, officer Zwolinski said she could see them up to 10 feet away, so they were not camouflaged.”
Next, the defense attorney took the bold step of acknowledging the claim that marijuana has a negative impact on society as a whole. “As for the other crimes that are involved with selling marijuana -- robbery, assault, burglary, rip-offs -- those are the things that medical marijuana users have to deal with. Co-ops are there so that they can protect themselves and keep themselves out of that environment.”
It was a risky move -- admitting marijuana was associated with great dangers, in the hope of persuading the jury that dispensaries and collectives minimized those dangers. Or, depending on the attorney’s level of investment in this case, it may have been a casually careless move. In any event, Joni O’Connor appeared nonchalant about the consequences of her speech, and turned to address a list of initials and number entries that was alleged by the prosecution to be a pay/owe sheet for Berchielli’s marijuana sales. This list, the defense attorney sleepily attested, was not a list of individuals who purchased marijuana. Instead, she suggested, it was a list of strain-name abbreviations and the number of plants in Berchielli’s grow that corresponded with each name.
It was a good argument, but the defense attorney presented little to back it up. Yes, she identified some of the initials as specific strain names -- ATF was Alaskan Thunderfuck, WW was White Widow, NYD was New York Diesel. She did also point out that the numbers beside the names were more likely to be plant counts than sales prices, since the numbers did not correspond with typical prices for marijuana purchases -- 13, 9, and 5, respectively.
However, this could have been a much more effective demonstration if she would have projected the so-called pay/owe sheet and gone down the list, identifying every set of initials rather than just picking and choosing a few orally presented examples. Furthermore, the defense attorney would have been well advised to make a chart from the testimony of officer Keith Bays, who gave a run-down on the witness stand for the plant numbers of each strain in Berchielli’s grow.
If there was a part of the trial where a visual aid was conspicuously missing, this was it. Instead of clarity, the jury got a confusing jumbling of letters and numbers and bizarre, unfamiliar names. A side-by-side comparison of the information from Bays’s testimony and the alleged pay/owe sheet would have surely demonstrated a perfect match of initials and numbers. By employing the evidence in such a way, the defense attorney might have easily used the prosecution’s own witness against them, and also made a more compelling case for her client’s innocence on the sales charge. But her attitude was one of resignation, and there was no apparent eagerness to go the extra mile for a client who hadn’t even wanted her in the first place. Joni O’Connor was just going through the motions to wrap up the trial, grinning and bearing what was left before deliberation.
“This is not a cultivation case, this is not a possession case, and this is not a sales case, because of the Compassionate Use Act,” she continued. “State law didn’t answer a lot of questions with the Compassionate Use Act, so there was a separate body of law to try to clarify it. The instructions you will be given are a compilation of Proposition 215 and Senate Bill 420.” The defense attorney was visibly boring the jury by this point, but she pressed on with superficial reinforcements about California law. “Officer Felton testified that the DEA was shutting down dispensaries because they break federal law, not because of state law. Some people don’t like the state law, like the DEA and the federal government. You are only to consider state law.”
The defense attorney then addressed the prosecution’s claim that the amount of marijuana in this case exceeded the protections of state law. Although the prosecuting attorney had said that 332 grams of dried marijuana was ‘a far cry’ from 8 ounces, this claim relied on a purposefully misleading mixture of metric and standard measuring systems. Joni O’Connor used a simple conversion to bridge the gap, showing that 332 grams was actually less than 12 ounces and thus well under the guidelines for the amount that can be legally possessed by two qualified patients.
The number of plants, however, was less easily explained away. There was no quick mathematical exercise to make them disappear, and the defense attorney relied instead on challenging their categorization as actual plants. “The officer testified that these were in pod form,” she reminded the jury. “There was no testimony about whether all of them had roots, and about whether they are really plants. I submit that they are not.”
If the defense attorney had any hopes that this claim would be an adequate defense to the high plant numbers, it all evaporated when the prosecutor took the floor for her rebuttal.
The Prosecution Gets The Last Word
When Maureen O’Connor got her chance to follow up, she was lightning-quick at dismissing the contention that the clones at the growsite were not actually plants. She referenced testimony from one of the officers at the scene, who had collected the evidence from the cultivation area. “He said that most, if not all of them, had roots,” the prosecutor declared. “He’s the one that tore the plants out, and, yes, they are plants.”
That settled, she once again began addressing the jury in her rational, common sense approach. “Now, there’s a lot of evidence in this case, and you’ve heard a lot of testimony,” she said in a tone of empathy. “What you need to do now is consider all of the facts…and look at the totality of what’s going on. That’s what makes the likelihood of harm and shows that Mr. Berchielli is criminally negligent.”
She then asked the jury to consider why Berchielli had to guard against the theft of his plants if he was indeed growing for a cooperative. In her view, this situation just didn’t make sense. “If he’s in a co-op, why would you have people hopping the fence to steal the plants?” she delivered the question with a victorious tone, as though she had in one swoop pulled the mask off of a false claim. “Why wouldn’t a co-op member just go to Mr. Berchielli and ask for plants? It’s because the plants are being stolen by other people. They’re being stolen by the people he’s selling to!”
Maureen O’Connor then asked the jurors to consider the descriptions of the environment in which Berchielli’s daughter was being raised. “She has over 1300 marijuana plants at her house and adults smoking pot there everyday,” the prosecutor said with horror. “To minimize that and make it out like it’s no big deal is unfair to that child.”
The closing argument would not have been complete without the resurrection of the most visceral image in the trial -- the mythical bloody shoe -- and the prosecuting attorney was happy to oblige. “There was a likelihood of great bodily injury,” she insisted with a note of exasperation. “If you have a set-up where there’s a bloody shoe left there, I would think that’s significant injury.”
“There are some people who benefit from marijuana -- fine,” she stated, summing up her final point. “But were the defendants taking advantage of the law to serve their own purposes? Medical marijuana, I’ve said before, is not a free-for-all. There are limits, and Mr. Berchielli and Mr. Webber violated them.” She then left the jurors with a clear vision of her expectations, “I am confident you will return guilty verdicts on all counts, and for both defendants.”
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