Shortly before jury selection began in the trial of Mollie Fry and Dale Schafer, dozens of medical marijuana activists gathered in front of the Sacramento federal courthouse to protest the proceedings. They carried signs that read “Medical Marijuana Legal in Calif. Since 1996,” “Uphold the Will of California Voters,” and “Educate, Not Incarcerate.”
Protestors at Fry-Schafer trial
In front of various news cameras, Fry made a case for the uniqueness of her trial. “I am the only doctor who has come to federal court,” she emphasized into the microphones. “And there are at least 40 to 50 doctors I know who recommend marijuana.”
In the courtroom, Judge Frank C. Damrell Jr. assembled the prospective jurors and began the selection process by acknowledging the crowd that was clamoring outside. “There were folks outside with signs…you may or may not have noticed that,” he said cautiously.
He received only blank stares in return. Clearing his throat, the judge edged closer to his point. “Were you approached by anyone as you came to the courthouse, about the use of marijuana or about your service as a juror?” he asked the group.
A timid “no” emanated from the back of the jury box, but the judge instructed responses to be given in the affirmative by raising a numbered sign. It was closely akin to the process of a silent auction…only no one was bidding on this particular lot. The prospective jurors made no indication that they had been approached.
Tony Serra
Seeking to offer a small measure of clarification for his question, Judge Damrell started to explain. “Let me tell you a little about this case,” he began. “Defendant Dale Schafer is an attorney.” Schafer smiled at the jury from across the room, where he sat next to his lawyer, J. Tony Serra.
“His wife Mollie Fry is a physician in Cool, California,” the judge continued. Fry beamed serenely as well, attorney Laurence Lichter at her side and rosary beads clasped in her hands.
It all seemed pleasant and straightforward enough, but Judge Damrell’s next statement was an egregious bumble. “They claim they were selling marijuana for medical purposes,” he summarized mistakenly.
It took Serra a split-second to speak out against this characterization, and the objection led to the first of what would be a great many sidebar conferences at the judge’s bench. The courtroom was washed out in white noise as the judge and attorneys conferred, and finally Judge Damrell turned again to address the would-be jurors. “It is my understanding that the defendants claim they did not sell marijuana,” he amended. “I said that they sold it for medical purposes. Do you understand that – is it clear?”
He then asked the group to raise their numbered cards if, based on the description of the case, they felt they could not be fair when considering these issues. One number went up. The woman who raised her card turned out to have a son who had recently received a DUI for driving under the influence of marijuana. “He’s had a problem for a long time now, and I’m not real thrilled about that,” she related with a grimace. “So, I don’t know whether I could be impartial.”
The admission stirred another confession from within the group. Another mother spoke passionately about her son’s drug addiction, describing him as being in and out of jail as well as rehab. When asked about which drug her son was addicted to, however, the woman drew a blank. “I’m not sure,” she told the judge. “I think it’s that one they make – crank or whatever.”
“Do you mean meth?” Judge Damrell guessed.
“Yeah, that’s it,” she affirmed.
The two concerned moms were later dismissed from the case, but first the judge tightened up the specificity of his questions. “Does anyone in your family have a prescription for medical marijuana?” he asked the jurors. No one moved a muscle.
Perhaps the use of the term ‘prescription’ threw the panel off. Under state law, medical marijuana is recommended in written or oral form by licensed physicians, but prescriptions are not issued. Whether it was a problem with terminology or with bashfulness, there was one woman who held back on sharing her personal experience with medical marijuana until later in the questioning.
This woman, a resident of the same county as the defendants, did not open up until she was asked if she had heard or seen any media coverage of the case. She described the story of Fry and Schafer as being “all over the Mountain Democrat,” the local newspaper for El Dorado County. When the judge inquired if she had formed any opinions from the coverage, she replied with a hint. “No, not as a result of the articles,” she said suggestively.
When prompted to explain what factors had influenced her opinions on the issues, she became suddenly grave. “I’m sorry – I’m going to get emotional here,” she apologized as she began her revelation. “I had a niece die of breast cancer, and I watched her die. She did take marijuana so that she could eat, and it was just pitiful to watch her go.”
Tearfully, the woman declared herself to be incapable of impartiality in a case related to medical marijuana, and the judge softly praised her honesty before moving on with his questioning.
A series of other inquiries followed, aimed at identifying various types of bias. There were a couple cards thrust up when asked about substance abuse amongst family members, and a slightly larger number of cards lifted to affirm that a close friend or relative had been convicted of a crime. There was a flurry of raisings, however, when the group was asked whether any friends or family had been employed by law enforcement. During individual questioning, it turned out that most of these 10 card-raisers had several close family members employed in corrections.
The challenge for Judge Damrell was to figure out if the prospective jurors would be influenced by their intimacy with officers, and thereby give greater weight to law enforcement testimony than to the testimony of other witnesses presented during the trial. In response to this question, only one woman responded affirmatively. She turned out to have a retired CHP officer for a husband, two stepsons in corrections, a daughter who works as a police dispatcher, and a son-in-law employed as a patrolman.
“Would you favor the testimony of law enforcement during trial?” the judge inquired.
The woman took a moment of thought. “Maybe if two witnesses were saying the exact opposite thing about the same circumstances…yeah, I’d probably believe the officer.” She answered confidently at first, and then quickly hedged at the end. “I don’t know.”
The judge talked through some of the finer details of her situation, and then chose to put the deciding question in the hypothetical. “If you were the defendant, would you like 12 jurors of your frame of mind serving on your case?” he asked.
“No, I wouldn’t,” the juror answered frankly. She was thanked for her candor and soon thereafter released from service.
This response had inspired a lengthy round of applause from the audience, where every available seat had been packed with onlookers. Most of the attendees were supporters of the defendants, but the crowd also had a light sprinkling of law student interns from the U.S. Attorney’s office. As the clapping erupted, the marshals grew frantic, threatening the enthusiasts with expulsion. Joined with an admonishment from the judge, the threats served to quickly, and permanently, quiet the audience.
Once the issue of law enforcement influence was put to rest, the defense expressed its concern about identifying another kind of jury bias – a prejudice against lawyers. After taking a minute to thank the potential jurors for their time, Serra presented his argument. “I know, because I am a lawyer, that there is a lot of bias out there against lawyers,” he began. “Some people just don’t like lawyers…and for good reason.”
There was some tittering in reaction to the self-effacing humor, and Serra used the pause to ask the group if any of them had negative experiences with attorneys that could bias them against his client, or against any of the attorneys arguing the case. One woman spoke up, detailing a situation in which she felt she had been scammed. “I had an attorney put down on my credit card quite a lot of money,” she explained. “Then I just found out in July that she’s no longer an attorney and no one knows where she is.”
Serra was appropriately sympathetic. “You had a bad experience,” he said affably. “You got ripped off. You’re angry, and you should be.” Then, becoming more fanciful in his language, he announced, “When there’s a revolution, they’re going the kill all the attorneys first.”
It seemed that most of the prospective jurors weren’t quite sure what to make of Serra. Charismatic, engaging, and chronically whimsical, he was a different breed from the other attorneys present. Soon, however, he had the entire audience engrossed.
Dale Schafer
“Look at my guy over there – Dale Schafer,” Serra commanded, gesturing towards his client. Schafer promptly stood and submitted to visual appraisals from the jury pool. “Do you think that, because of this experience, you would be less than objective, less than utterly impartial about him?”
The jilted juror seemed to respond to the drama of Serra’s approach, and soon admitted to reacting with disdain when watching lawyers on TV. She then added with zeal, “And when I see them walking around here, I think, ‘I wonder who they’re going to rip off next?’”
Giggles abounded, and the attorney appeared confident that he had made a demonstration of juror prejudice on this subject. “If you look at them like you want to bite them, that’s bias,” he concluded.
Serra then moved on to address the key issue of the case. After admitting that federal law prevented him from mounting a medical defense, he stated that the presentation of case evidence would inevitably bring up the medicinal nature of the marijuana. “The context of the case – and you can’t strip it down naked to nothing – is that the defendants were involved in medical marijuana, both of them.”
The words precipitated an objection from Assistant U.S. Attorney Anne Pings, and another sidebar was called. Upon returning, Serra abandoned the soliloquy and went straight into his question for the future jurors. “How many of you know that you can get permission on the state level to use marijuana?” he asked. The inquiry resulted in Pings accusing Serra of testifying rather than examining, but after yet another sidebar, the question was allowed to go through. It seemed not to matter, however, because no one was answering.
The group sat silent. “Anyone?” Serra prompted, only to be met with quiet stares and fidgeting from the potential jurors. “No one knows about Proposition 215?” he hinted in vain. Finally, he threw in a provocative query, “How many of you vote?”
That seemed to break the dam of reservations, and slowly a few opinionated individuals came out of the woodwork. One woman in particular gave a brief overview of the general facts of Proposition 215, correctly identifying the year of its passage and recapping its success in the polls. Serra acted surprised when this sudden outburst of knowledge broke the silence. No one else in the group, he noted, seemed to remember anything about California’s medical marijuana law.
“Or they were afraid to mention it,” the woman said pointedly, hitting the nail squarely on the head.
Further questioning revealed that this prospective juror had voted for Proposition 215. “I voted the way I thought was right,” she said plainly. When asked whether this would affect her ability to be objective in the case, however, she threw the defense for a loop. “No,” she answered thoughtfully, “because I believe there’s a lot more involved here than just the medical marijuana. I don’t know – I haven’t read or seen anything – but I believe there’s more to this case.”
Her cynicism was based on mysterious grounds that were never fully discovered by her questioners, but she held fast and tight to her beliefs. The vagueness of her answers was at odds with the suspicion in her voice, and listeners were perplexed. Nonetheless, the tone had been set. From there, the accounts of personal medical marijuana experiences continued to increase in their ambiguity.
Next, an elderly woman, who identified herself as a widow with nine children, proudly declared that none of her children has abused substances. “I always say I did something right,” she said with satisfaction about her offspring. “I have no drug dealers, no dope addicts, no alcoholics…and they all work for a living.”
She did, however, have a grandson who used medical marijuana. “He got cancer when he was five years old,” she related. “They gave him – they put the patch on him that has THC, which is, I understand, what they get from marijuana.” If listeners were expecting to hear a conclusion in support of medical marijuana, however, they were soon disappointed. “If it’s available other ways, then I just don’t see why it has to be smoked,” insisted the aged lady.
Following this outpouring of personal stories, Serra inquired whether any of the potential jurors were affronted by marijuana, or, for that matter, medical marijuana.
One woman spoke up, saying that she voted ‘no’ on Proposition 215, and that she felt that “an illegal drug is an illegal drug.” The prosecutor’s eyes widened with delight at the possibility of seating such a juror, but Serra had another idea entirely. He was intent on keeping this woman off the jury, and he pursued his plan with repeated questioning about the possibility of bias. As it appeared, this tactic worked perfectly. “I thought I could be positive about whether I could be impartial, but then you keep going on and on, and I just don’t know,” the woman finally admitted in distress.
“Well, how’s your Pavlovian response?” Serra asked her, starting to get warmed up to full theatrics. “When you smell marijuana, do you get angry and want to destroy it and say, ‘Where is it? I’ll step on it!’”
By the end of his musing, Serra was shouting and gesturing wildly. The woman he was addressing, however, couldn’t have been more placid in her response. “To be honest with you, I don’t know that I’ve smelled marijuana,” she said simply.
“Come to San Francisco, any day,” Serra suggested in a lighthearted quip, before continuing to probe her about bias.
Finally, she gave in, agreeing to the defense attorney’s characterization. “I just don’t think there’s a good medical use,” she added, speaking about marijuana.
The defense wrapped up the examination, and the would-be jurors were sent out of the courtroom so that final decisions could be made. Serra had an air of victory about him, even beyond his usual glow of triumphant confidence, and quickly requested to strike the woman he had just questioned.
Pings, however, was outraged by his treatment of this potential juror. “Mr. Serra, in all his skill, has convinced her that if she voted ‘no’ on the proposition, then that’s equated with fairness,” the prosecutor told the judge. “Just because she believes that medical marijuana should not be allowed, doesn’t make her unfair. In fact, that’s exactly the law the jury will be asked to follow in this case.”
Serra was quick to counter. “She agonized over the question, and ultimately pronounced herself to be unfair,” he claimed. “I didn’t lead her. It was because of her position on marijuana that she answered as she did.”
After referring to Proposition 215 as the “so-called California medical marijuana law,” Judge Damrell granted Serra’s request and dismissed the woman who had voted ‘no’ on the initiative. A long period of quiet negotiating then commenced, with notes passed back and forth, and pensive frowns on both sides. The afternoon dragged by, and onlookers watched the clock apprehensively, wondering if the jury would be finalized in time for recess.
Nearing the end of the day, however, the process concluded and the jury was successfully seated. In the end, most of those who expressed opinions had been cut, and a rather homogenous group remained. The finalized jurors are overwhelmingly white and mostly middle-aged, with a sex ratio of seven females to five males. After all of the pointed rhetoric about bias regarding attorneys, it was surprising to find a lawyer sitting on the jury. Also seated was a woman who has worked for years at a plant nursery, a notable detail in a case where cultivation is charged.
Standing apart from the rest, however, is the juror who retained spot #1 throughout the selection process and into the confirmation. A 51 year-old black woman who works for the public defender, this juror might have expected the prosecution to dismiss her immediately due to her job, but she was spared every time there was a cut. She stayed firmly in her place in spite of her description of her daughter’s felony drug conviction and, more amazingly, regardless of her revelation that her uncle had been the warden at Attica Correctional Facility during the violent inmate riots there.
Although not starkly revealing, the biographical information on some of the jurors presents a few gems of curiosity. There was not much time for the audience to assess them, however – as soon as the jury was seated, court was recessed until the next morning. At that time, the judge promised, opening arguments would begin and the trial would go into full swing.
Laurence Lichter
After the jury left the courtroom for the day, defense attorney Laurence Lichter addressed the judge about a proffer relying on Conant vs. Walters. That case resulted in an injunction against prosecuting physicians for making medical recommendations, and Lichter announced that this will be a large part of the defense he presents on behalf of Fry. “She is protected by an injunction from being prosecuted for criminal conduct,” Lichter argued about his client. “This ruling shielded doctors’ activities, so that they could make a recommendation – either written or verbally – even if they know the patient will use that recommendation to break federal law.”
Pings did not think highly of this defense strategy. In her view, it didn’t even apply. “The ruling says that the DEA cannot revoke a license to prescribe medicine solely because the doctor had a 1st Amendment protected conversation about use,” Pings was long-winded but adamant. “It’s about DEA registration. It does not say that you can sell little baggies of marijuana hand-to-hand. It doesn’t say you can cultivate marijuana plants or possess large amounts of marijuana…We’re not talking about people getting a recommendation and then going elsewhere to get drugs. [Fry] sold them drugs hand-to-hand! She sold them plants hand-to-hand! She conspired with her employees to sell drugs hand-to-hand!”
Lichter’s response was simple: since the judge would permit his proffer, he would make his proffer…and that was that. Otherwise, he had just one final comment to make about his client. “The defense will be that she acted as a doctor, not as a dope dealer,” he said succinctly.
Dale Schafer and Mollie Fry talk to the press
Fry herself echoed those words outside the courtroom.
“I am not a drug dealer – I didn’t go to medical school for four years to be a drug dealer,” Fry declared to the news reporters. “I consider drug dealers to be on a lower rung. I’m up here,” she said proudly, gesturing slightly above forehead level. The first phase of the trial under her belt, Fry ended the day on a full tank of self-esteem.
Opening statements will begin at 9am on August 2nd, 2007, in Courtroom 2 (15th Floor) of 501 I Street in Sacramento, CA.
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