As the time for jury instructions drew near, Judge Mason took a deep sigh and turned to the attorneys. It was time to come clean to what courtroom observers had long suspected -- he had been conducting the case on a surprisingly small amount of knowledge about medical marijuana laws.
“I must express some concern about my ignorance,” the judge leveled with the attorneys. “I’ve been out of California since 1991. I missed everything that happened in the late 1990s. I’m a little out to sea on possible theories of defense and how to instruct the jury.”
He asked the attorneys if he should adopt the instructions from the Urziceanu trial, but he struggled to pronounce the case name and ended up having to simply call it the ‘U’ case. “Is this good law, or has it been modified?” the judge asked counsel. “It says that a patient’s primary caregiver is a person to whom sanction should not apply, but this language lends no support to the idea that patients can come together to create a stockpile of marijuana for redistribution, meaning a commercial enterprise that sells marijuana is not legal under state law.”
In the end, however, it was decided that vagueness was easier than specificity. The judge resolved that he would advise the jurors that there may be a defense to the marijuana charges, and then place printed copies of Proposition 215 and Senate Bill 420 in the deliberation room for their perusal. The implied message was this: surely the jury, under time pressure and with limited resources, would be able to accurately make the determinations that the judge had been unable to reach without these hindrances. Like so many other decisions made during the trial, this one strained common sense.
Once the jury was reassembled and seated, the judge admitted to the haphazard method of preparing instructions for deliberation. “We’ve done this so hurriedly that we don’t even have it in a smooth form yet,” he told the jurors, apologizing for the fact that he would be going back and forth between sources as he read.
He explained that, for a finding of guilt on the booby trap charge, it would have to be shown that John Berchielli assembled, maintained or placed a hidden device that would cause great bodily injury if set off. This concept of great bodily injury echoed in the child endangerment charge, which appeared to be intimately connected to the other charges. For a guilty verdict on this count, the judge told the jurors, it would have to be proven that Berchielli knowingly put his daughter in a situation where a reasonable person would know there was a risk of great bodily harm. The concept of this ‘reasonable person’ was not further explained, and one would be hard pressed to say it was adequately exemplified during the proceedings.
When Judge Mason came to the marijuana charges, he detailed the elements of the crime that had to be proven in order for the defendants to be found guilty. He then added, “There is a defense that these activities are not unlawful if the defendant has a doctor’s recommendation or if he’s a caregiver who provides assistance to a patient, but the amount possessed must be ‘reasonable for use.’ ”
Without looking up, the judge switched sources and continued, “A person may not possess more than 8 ounces of marijuana per qualified patient, and 6 mature or 12 immature plants.” It was a markedly flawed interpretation of the minimum limits set forth in Senate Bill 420, but the judge’s reading of the laws about collectives was more accommodating, “Patients can associate to collectively or cooperatively cultivate marijuana.” He followed up with the warning, “This does not condone the diversion of marijuana for non-medical purposes.”
This hodge-podge of marijuana laws now thrown together, Judge Mason went on to make another declaration. “The general rule is that the burden of proof is on the prosecutor to prove guilt beyond a reasonable doubt,” he explained. “However, when a defendant claims exemption, then the burden of proof shifts to the defendant.”
Oddly enough, in such situations where the burdens shift from the prosecution to the defendant, the advantages fail to shift accordingly. The defense remained seated farthest away from the jury, for instance, and was still permitted only one closing statement, sandwiched between the prosecution’s two opportunities to conclude in front of the jury. None of these concerns, however, appeared to gain any attention from the judge, who continued a standard reading of instructions that ended with the typical statement, “You must follow my instructions on the law, even if you don’t agree with the law.”
It seemed like his speech was over, but there was a final surprise up Judge Mason’s sleeve. And just like the other times when he deviated from the standard, his words aroused shock to the sensibilities of the listeners.
“One last thing,” the judge began. “I’m not going to allow any of the marijuana evidence to be in the jury room with you while you deliberate.” His tone conveyed the gravity of the danger.
Several jurors’ eyes widened, mouths agape at the suggestion. Others appeared amused by the fear that the jury room might come to resemble the set of a Cheech & Chong movie, should thirteen people be permitted unsupervised access to several ounces of overly-aged buds and a few bags of diseased clones.
The dangers were unequivocal in Judge Mason’s eyes, however, and he was quick to compare unfettered access to marijuana to the perils of having a loaded firearm. “I do not let a gun and the ammunition that goes with the gun to be in the jury room,” he explained. “Sometimes there’s an ex-Marine who wants to show how fast he can get it loaded, and we can see where that’s going.”
A savvy juror might have countered that, by this analogy, access to marijuana could be permitted in the absence of paraphernalia. However, jurors were forced to remember the very first thing they were told when they assembled for the case -- the judge did not welcome their questions or comments.
“I wouldn’t want to send in those bags and have you sniffing and tasting and maybe even smoking,” the judge continued, on a roll with his fantasy. “With all that sitting around and tempting you, we cannot have those bags in the jury room.”
He concluded with the declaration, “You will have to make other arrangements if you want to know what that green, leafy substance is like.”
It was the last thing the jurors heard as they slipped out of the courtroom to begin deliberation.
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