There’s no doubt about it – the Fry/Schafer trial started off with a bang.
Only minutes into the proceedings, judge and counsel were already yelling over each other, causing the court reporter to throw up her hands in frustration as she tried to record the heated exchanges. The opening statements were peppered with so many objections that their delivery grew increasingly abundant in drama and scarce in continuity. Topping off the events was the judge’s controversial decision to interrupt the opening statements so that he could instruct the jury to disregard mentions of state medical marijuana laws.
Dale Schafer and Mollie Fry with 2 sons
The temperature began to rise, in fact, before the jury even entered the courtroom. The first matter of the day was to discuss the applicability of Conant v. Walters, a case that ultimately enjoined the government from prosecuting doctors for giving advice and recommendations to their patients. Raising this precedent sparked unanticipated debate in the courtroom, and each side had a slightly different take on its relevance.
In Judge Damrell’s view, the Conant case was only about free speech. “She can talk to her patients about the use of marijuana,” he said about Mollie Fry. “If that’s all she did, then fine. But that’s not the conduct she’s charged with here. Understand what I’m saying?”
Laurence Lichter, the attorney who had made the proffer, ventured a guess. “That she may have crossed the line with her conduct?”
“You might argue that this is a mistake of law,” the judge mused. “For instance, did she think Conant did other things? But Conant is very specific.”
Indeed, the Conant decision does not allow doctors to assist patients in obtaining marijuana, nor does it give legal protections for cultivating or possessing marijuana for patient use. These were details that prosecutor Anne Pings was quick to point out.
“We’re not talking about the ten thousand recommendations for asthma, sore elbows, PMS – that’s not the case here,” the Assistant U.S. Attorney said, the ridicule apparent. “This is only about whether they tried to sell marijuana to the people who came in for recommendations. Period.”
In spite of the verbal punctuation mark, Pings was not quite finished on this subject. “The government has prepared its case based on the charges,” she clarified. “We have not prepared a case to attack the recommendation business. Our witnesses will only testify if they got the recommendation and if they bought marijuana from the defendants.”
At first, defense counsel Tony Serra acted like he would stay out of the debate. Since he was representing a lawyer rather than a doctor, he felt the discussion on Conant didn’t really apply to his client. “”I don’t have a dog in this fight,” he told the judge at the outset.
But the intrepid defense attorney soon changed his mind. He couldn’t stay out of the argument once the prosecutor stated that she did not intend to malign Fry’s practice. “That’s not the charge, but that’s what they want to do – they want to dirty us up!” Not one for morning grogginess, Serra was already infusing his spirited arguments with cartoonish voices well before 9am.
Serra, in fact, had much to say about the prosecutor’s intent. “She will bring up bad acts, and say, ‘These people are running a mill, they’re profiteering, they’re frauds!’ That will be the sub-rosa content of her case at some level. We have to counter that in some way and say, ‘This is altruistic, they were helping people--’”
“I was not intending to ask them about diseases, illnesses, etc.” Pings jumped in to clarify the point. She reiterated that the defendants were not charged with wrongdoing regarding the recommendation business, but quickly indicated her willingness to accommodate such charges. “If [the defense attorneys] want to do that, we can present a very large case about the insincerity of the recommendation practice.”
For Judge Damrell, however, the matter was simple. “She made good faith recommendations,” he summarized regarding Fry. “I won’t get into why she made those recommendations. A physician is entitled to make recommendations under Conant. And we are not going to engage in the sort of discussion that Mr. Serra thought we might.”
The judge then ordered the jury into the room, but was cut off by another request from Pings. Her snippy attitude had vanished, and this time she approached the lectern and spoke into the microphone with great gravity. “Your honor, I am going to ask for a special instruction,” she began. “It would be that, everyday when the jurors come into the courtroom, you look them in the eye and ask them if they were exposed to any media about this case.”
Responding to the judge’s quizzical expression, Pings continued. “The reason I ask is because the defense has scheduled to be on a radio show. Yesterday, one of the things that Dr. Fry said on the air was, when a dismissed juror called in, ‘Everyone here lies to you. They make you think you have to tell the truth, but you don’t.’ This violates the law.”
There was visible dismay in Judge Damrell’s eyes, but Pings wasn’t finished with her report. “And at the end of the show, the host said, ‘Come on, people, just play dumb and vote not guilty no matter what they tell you.’ These are affirmative messages to taint the jury pool,” Pings concluded.
Tony Serra
Tough to beat to the punch, Serra got his statement in before the judge could muster a response. “I vigorously object to this instruction,” he declared before launching into his list of the ways Pings has violated his clients’ civil rights. “She swallowed our defenses, she swallowed our 4th Amendment right, and now she wants to swallow what is our 1st Amendment right--”
“It’s not your right if you’re going to be on the radio telling [the jurors] not to follow my instructions!” the judge snapped. “You’re not going to tamper with this jury under any circumstances.”
“She took great liberty in exaggerating what was said,” Serra noted about the prosecutor’s characterization. About the jurors, he requested the judge have greater faith in their honor. “You told them not to listen, so that should be that. But to interrogate them everyday when they come into the courtroom is a form of intimidation.””
“You’re intimidating this jury, if that’s what you’re saying on the radio!” Judge Damrell bellowed back at Serra, livid at the revelation. “Bring in the jury,” he ordered. “I’m going to ask them.”
Once seated, the jurors were subjected to a full re-run of the previous day’s lecture on media exposure. That concluded, Judge Damrell asked slowly and carefully if any of the jurors had been exposed to any media about the case. He turned in his chair to scrutinize them, looking straight into their eyes as the prosecutor had requested. “I take it by your silence that you have not,” the judge eventually conceded.
The Prosecution Opens
Satisfied with the purity of the jurors, Judge Damrell allowed opening statements to commence. But the courtroom got a quick surprise – though she has been the lead prosecutor on the case for several years, Pings would not be making the opening statement for the government. Instead, the duty would fall to Assistant U.S. Attorney Sean Flynn, who gave the distinct impression of having some wetness behind his ears.
But Flynn is no stranger to Judge Damrell’s courtroom. Just two months earlier, the young attorney helped convict two men for burning a cross in front of a Catholic church run by a Rwandan immigrant. Flynn had railed against racism in that case and he resurrected the passionate rhetoric for the Fry/Schafer trial and transfered his indignation to target “dope dealers.”
In this effort, Flynn employed ample flair. He began with an anecdote about a mortgage appraiser who looked at the Fry/Schafer property in early 2001 and afterwards reported to police that he had discovered marijuana growing in a concrete bunker. “When he looked inside, he saw so many marijuana plants, he was frightened,” Flynn said of the appraiser. “He realized he had come upon the property of drug dealers. This case is about those two drug dealers.”
There was fervor in his tone, which dulled only slightly as he defined a few terms and outlined the elements that would need to be proven for each part of the charges against the defendants. Shortly, afterward, however, Flynn got his momentum going again. “The witnesses will tell you about how [the defendants] sold marijuana and even had a delivery service. They had a captive customer base for selling the marijuana. Dr. Fry and Dale Schafer had a medical and legal office where people would come to her as patients.”
The prosecutor then explained how Paul Maggy, a former employee of Schafer, would testify that the defendants sold marijuana in a fire station parking lot across the street from their offices. According to Flynn, the jurors would also hear evidence from an undercover officer who posed as a patient at Fry’s clinic. “You will hear Dr. Fry describe the volume of her business and her sales pitch,” the prosecutor said, describing the evidence from the officer. “You will hear her encourage him to buy marijuana from her, and you will hear her badmouth her competition by saying another marijuana growing store was staked out by law enforcement.”
Flynn then outlined the testimony of another ex-employee turned key witness, Mike Harvey. According to the prosecutor, Harvey outfitted various areas of the property for the defendants to grow marijuana, then drove the products of these grows to the defendants’ customers in a manner similar to pizza delivery. Harvey was also expected to testify about building kits for growing marijuana and selling them at a price of $400 apiece, a plan he attributed to Schafer’s requests.
The prosecutor informed the jurors that the distribution conspiracy included the defendants’ daughter Heather Schafer, who allegedly put on marketing events known as cloning workshops. Not only did this seminar teach about growing marijuana from rooted plant cuttings, but Flynn also reported that it taught participants how to make Rice Krispie treats from hash oil.
Most notable to the prosecutor, however, was a detail from the law enforcement infiltration of the workshop. According to Flynn, when an undercover officer called Fry’s office to ask if marijuana clones would be sold at the seminar, the agent was told the plants would be available for $5 each. That sale was never to happen, but the prosecutor quickly turned the lack of evidence around to serve his side.
“After the workshop, Heather Schafer said they didn’t have any plants right now, since her family was cleaning out the house because her father was running for District Attorney of El Dorado County,” Flynn summarized. “Well, when the house was later searched by law enforcement, they found out Heather Schafer was telling the truth – the house had been cleaned out.”
Although only a couple dozen plants were found during the raid, the prosecutor assured the jury that officers found other evidence of large-scale cultivation. “They found the grow equipment the witnesses described. They found shopping bags full of processed marijuana in the living room and the bedroom. They found the plants on the hill, and they found Marion Fry’s big ole greenhouse.” The last phrase came across with a whimsical ring, and Flynn decided to end on this note.
But first he brought back the figure of the real estate appraiser, who would also testify that there had been massive marijuana cultivation at the Fry/Schafer residence. “He will tell you that some of the plants were nine feet tall,” Flynn said of the appraiser, “and the plant number was so many that he was forced to call law enforcement.” Although it was unclear what power had compelled the appraiser to make the police report, the prosecutor seemed pleased with his characterization. With this reference, Flynn’s opening statement had come full circle back to its beginning, and he concluded contentedly.
The Defense Opens
Serra, ever dominant, made the first opening statement on the defense’s side. He started out by asking the jurors to grant just one little favor to him and Lichter. “We’re sitting way over there,” Serra said, gesturing in an arc to the other end of the courtroom. “If it was foggy like it is in San Francisco, I wouldn’t even be able to see you.”
The grins from the jury box, however, were bright enough to be visible from across the room. The jurors appeared much beguiled by the fancies of Serra’s illustrative language. Now that he had them smiling, the attorney finished his plea. “Even though the prosecution gets to sit closer and we’re way over there, and even though it will take days before we can start our case, I beseech you to defer judgment.”
It seemed a simple enough favor, but, as usual, Serra laid it on thick, continuing for another few lines by comparing ideal jurors to scientists who function objectively and remain neutral until the work is completed. At the judge’s urging, the attorney finally moved on to the substantive part of his address, but it wasn’t long before the judge was intervening again.
“Dale Schafer is not contending that he did not grow marijuana,” Serra put forth. “But he never conspired to grow more than a hundred plants, and he never grew more than a hundred plants…You’ll hear that he agreed not to grow more than a hundred plants because he believed that was a line –”
After an objection by Pings and an animated sidebar, Serra returned to say, “I can’t say what the reason for his belief was, but he had this belief and he would grow no more than a hundred plants.”
Dale Schafer campaign sign
Serra then backed up a bit, taking the time to give some background on his client’s life and summarize what the character witnesses would say about Schafer. “They will testify that he is honest, credible, believable, trustworthy – in essence, a good person. They will testify that he is a law-abiding person, that he follows the law as he knows it, that he would not knowingly break the law.”
In fact, Serra suggested, Schafer has been law-abiding all his life – not only did he take up the practice of law, but he used his expertise to ensure that his family’s activities were legal. And, as the defense attorney described it, things were harmonious in their household for a while. “They were successful – not enormously so, but their family was intact, and their life was good, and their life was wholesome.”
According to Serra, however, the good times came to an abrupt end with a crisis over Fry’s health. “What happened next was so catastrophic it was overwhelming... Dr. Fry was diagnosed with breast cancer. She had both breasts removed but she was still imperiled. It was around this time that Proposition 215 was—”
The prosecution made an objection mid-sentence, but Serra interrupted the interruption. “We have to have context, your honor,” he asserted to Judge Damrell.
“I object!” Pings insisted, visibly offended. “There is an objection!”
“I’m asking to proceed,” Serra explained, calmly dismissive of the prosecution’s concerns.
The spat resulted in yet another sidebar at the judge’s bench. Upon returning to his podium, Serra apologized to the jurors in his classic affable style. “From time to time, there will be interruptions and sidebars,” he explained. “Forgive me for precipitating them. But I would ask that you—”
“Just proceed,” the judge broke in, his frustration only minimally concealed.
Serra obliged, going on to describe the physical ailments Schafer has suffered from: hemophilia, hepatitis C., polysite arthritis, and chronic pain from these conditions. “They used marijuana to help them in their conditions – hers being severe cancer, and his being the ailments I just described,” Serra said of Fry and Schafer. “When marijuana became legal under state law, my client grew for them…He initially didn’t grow to sell. It was to medicate their own serious illnesses.”
The prosecution voiced its objection, leaving the defense attorney to take another route. He continued by focusing on Schafer’s shortcomings as a grower. “He’s not a farmer – he’s a lawyer,” Serra chuckled about his client. The idea here was to establish that Schafer’s mortality rate was so high that he would need to start off with a large number of clones in order to have some probability of bringing a few plants to fruition. “You’ll hear from marijuana experts about the problems Mr. Schafer had growing. You don’t just throw seeds in the ground and they grow up to the sky. The preferred medicine is from the female and —”
Predictably, Pings made an objection, and Serra responded by shrugging at the judge, “I can’t say ‘medicine’?” A sidebar established that indeed he could not, and from then on Serra was made to say “preferred part” rather than “preferred medicine.” However, his compliance with this rule immediately faltered.
“As time proceeded,” Serra began, “Dr. Fry was issuing recommendations to patients that allowed them under California law to--”
“Counsel!” the judge warned sharply. “I already ruled on that.”
“My client gave up his civil practice. He wanted to help his wife. He joined her office, and what he did was advise her patients to explain, to edify, to make clearer what patients could do with marijuana under state law.” The reference to state law appeared to slide, so Serra went on to further expound. “This was a new thing. The California law was a new phenomenon. People flocked from all over to avail themselves with the medical and legal services—”
Judge Damrell turned to the jurors and told them to disregard the references to the words ‘medical’ and ‘medication.’
But the references were there again, in Serra’s next breath. “There came a time that, out of compassion, my client started to provide patients with what he called medicine – marijuana – because he believed people buying it on the black market were presented with certain dangers. He believed the prices were extraordinary. He believed the quality was poor. It was an act of compassion. He wanted to give it away without making any money.”
The next facet of Serra’s argument was that greedy, selfish individuals took advantage of Schafer’s resources and good will, attempting to turn his activities into a commercial enterprise. The defense attorney alluded to evidence of violated trust and forged checks, both of which were discovered too late to save his client. “What my client will testify, and what he can say conclusively in retrospect, is that his intentions were betrayed by the people surrounding him, including his children. He did not have a firm grasp on the flow of money.”
Serra told the jury that some of those who betrayed Schafer’s intentions did so to receive leniency in their own criminal cases. According to Serra, these witnesses had agreed to testify for the government in exchange for a probable reduction in sentence. In characterizing the evolution of such deals, Serra impersonated an interrogator in heavy, exaggerated voice. “‘We heard you sold lots and lots of plants – if that’s true, we can make a deal—’”
The cartoonish representation may have hit a little too close to home for Pings, who promptly objected. Judge Damrell elected to forego the sidebar, and instead sent the jury from the courtroom. This time, things had gotten serious.
Once the door closed behind the last juror, Pings began explaining that Serra had “falsely mischaracterized” the circumstances of witness immunity. “The statute of limitations has expired,” she told the judge. “These people smoked marijuana at some time in their past, and this interferes with their ability to remember, recall, relate. That’s what the immunity was about.”
Judge Damrell was at a new height of displeasure. “This has gone so far over the line, Mr. Serra – you know that! I have to make a curative instruction. I’ve got to rein you in. I have to cure the wrongs you’ve done.”
“I’ve done no wrongs!” Serra exclaimed. “Now she says the immunity is for smoking pot. That’s not what I understood.”
As more details emerged, it became clear that the prosecution faxed a letter explaining the immunity to Serra’s office in San Francisco on July 31st…precisely the time that he left to come stay in Sacramento for the trial. For a brief moment of resolution afterglow, things seemed to get downright chummy. “I think there was no bad faith here,” Pings said amiably. “I think that’s cleared up.”
But the judge was uncomfortable about something else – the defense’s incessant use of forbidden terms, in spite of objections and warnings from the bench. “I’m going to make a curative instruction. I’m going to talk about the medical purpose of marijuana. I’m going to have to do that before we take evidence.”
A proposed draft of the instruction was read, and the short instruction simply reminded jurors that, in spite of references to patients and medicine, marijuana is illegal under federal law. Serra appeared perplexed by the necessity of these statements. “I never said that federal law does allow it,” he argued.
Judge Damrell was unconvinced. “It’s my duty to make sure the jurors understand the law,” he emphasized. “Right now, I think they have a misimpression of what the law is.”
As the jury was being summoned back into the room, however, the judge was brushed by the feeling of increased benevolence, and he decided to wait until opening statements had concluded to make his instruction about federal marijuana law.
Serra then made one final point before the jury before giving the floor to Lichter. This point was aimed at getting the jury to scrutinize the role of law enforcement in these proceedings. “If you find that law enforcement has a political motive to destroy the state medical marijuana movement, you can take that into consideration when determining their motive for involvement,” Serra said in conclusion. “If you find they have animosity towards state law, then you can take that into account – that taint, that bias – when ascertaining the credibility of those witnesses.”
Laurence Lichter
When Lichter took over, he introduced his client to the jury with pride. “It’s an honor representing a female doctor,” he said with convincing humility. Continuing to sing Fry’s praises, he reached nearly two centuries into her family history and noted with admiration that she came from a line of medical doctors stretching back seven generations. The defense attorney spoke at length about his client’s predecessors and their achievements. Her grandfather Francis Marion Pottinger was a leading expert in the treatment of tuberculosis and was the creator of the charity Easter Seals. And, according to Lichter, there was something more to this forebear. “Mr. Pottinger was a very strange character,” Lichter began, only to be cut off by an objection on grounds of relevance.
“She was born into a community who really cared about sick people,” Lichter responded, justifying the diversion into his client’s ancestry. “That cannot be taken out of it, cannot be considered irrelevant.” But simply saying it did not make it so, and Lichter’s oration on Fry’s family tree was ended before jurors got to hear about the wackier side of Mr. Pottinger.
Instead, Lichter changed gears and told them about something far more sinister. The defense attorney started to explain that Fry had been molested by a neighbor at the age of two, and that she had developed kidney infections as a result. He had barely touched the subject before Pings objected, again questioning the relevance. In spite of the fact that Lichter claimed to have two witnesses who would be testifying on this subject, he was once again restrained after a sidebar discussion.
The defense attorney then made a third try at launching his opening statement. This time, Lichter related how Fry was only ten years old when her mother died of breast cancer, and he got a couple sentences into describing the traumatic effects of this loss before he was again stopped short on a challenge of relevance.
A pattern had been established, with Lichter telling Fry’s life story in tiny intervals broken up by frequent pauses for objections and sidebar conferences. It was a tedious way to tell a story, but the defense attorney took the interruptions good naturedly, and acted as though they were expected.
During his next go at it, Lichter got a good ways into describing Fry’s education and training as a medical doctor, but stalled when he started talking about her philosophy of medicine. “She didn’t like the changes in medicine,” Lichter said of his client’s attitude in the early 1990s. “She was unhappy with the emphasis in profit over care giving.”
“Let’s move along with this,” Judge Damrell sighed. “Say what the evidence will show.”
The judge’s urging made little difference in Lichter’s speech. The defense attorney was soon talking about Fry’s battle with breast cancer, and consequently facing the same objections over state law that Serra handled. “She was put on chemotherapy,” Lichter said gravely about his client. “The powerful drugs didn’t just focus on the cancer cells – they made her so sick she didn’t think it was worth it to go through with the treatment. Now, as you may know, before Proposition 215 was passed—”
Pings interrupted with an ardent objection. Lichter resumed, “Her doctor suggested she try a very powerful anti-emetic, cannabis. It also has an anti-inflammatory effect—”
The prosecutor’s objection was uttered even more emphatically this time.
Judge Damrell was nearing the end of his rope. He gave the jurors a recess and then gave Lichter a piece of his mind after they had left the room. “I am tempted to give an instruction right now, rather than later,” he alerted the attorney.
“I’m trying to follow all of your rulings, your honor,” Lichter said.
“I wish you would!” the judge was exasperated. “And if you don’t, I’m going to stop you and give a jury instruction right in the middle of your opening statement.”
The jury reassembled and Lichter made another start. “Dr. Fry had no way to get this recommended substance. [Schafer] went to the black market. This made her nervous. She wanted to remain a doctor. They tried to learn the law—”
That was the breaking point. Apologizing to the jurors, Judge Damrell quickly sent them out of the room for a five-minute break. But if the judge thought he had five minutes’ worth of outrage, he overestimated. His scolding of Lichter was forcefully uttered but remarkably brief.
“You are repeatedly violating the same topic,” the judge said, leaning slightly over the bench. “I am going to instruct the jury right now. This has gone so far over the line!”
The curative instruction was nothing the jurors hadn’t heard before, but they had no choice but to sit and listen to the lecture. “It is not a defense to federal charges regarding possession, manufacture and distribution of a controlled substance that a person did so for medical purposes,” the judge explained once again. “I will not allow testimony on state law. This is a general intent statute – you don’t have to show that they did it knowing they were breaking the law.”
That done, Lichter simply found the place in Fry’s biography where he had left off and commenced to put forward a few more sentences. “At some point, she felt well enough, and felt that her family was taken care of well enough, and she let it be known that other doctors could refer patients to her for consultation about a certain substance. Now, some witnesses will testify that this is not good medicine—”
After the familiar objection from the prosecution, the judge gave Lichter a harsh stare. “I already ruled there will be none of this testimony.”
It didn’t seem to matter much to Lichter – he was starting to wind down his speech. “My client did nothing beyond being a doctor,” he declared. “She didn’t cultivate, she didn’t distribute. She didn’t water a plant. She didn’t take a bug off a plant.”
All that was left was to re-state the major arguments, and Lichter got through it with no further objections. “She had an interest in getting the patients medicine cheaply, and she had an opinion on the people she thought were taking advantage of the patients…She voiced her criticism, but nothing more than that. Her interest was in publishing research, not dope dealing.”
Once these declarations of Fry’s innocence had been spoken, the opening statements were over. Jurors and courtroom spectators could now look forward to the presentation of witness testimony. But the courtroom’s combative, restrictive atmosphere continued to spread to the audience area as well, with marshals hassling spectators about such innocuous stuff as bobbing their heads or possessing a water bottle in the courtroom.
For her part, radio host Christine Craft was shocked to learn about the way her on-air comments had been portrayed in court at the beginning of the day. On her next broadcast, she made an address about the matter. “If you’re listening out there at the federal courthouse, I’m a lawyer and I would never tell anyone to disobey a judge.” That disclaimer sufficiently issued, she addressed the other side of the issue, “But there’s also a thing called jury nullification. If for any reason you think this law isn’t right, if you think this law is ridiculous, you can say ‘not guilty.’”
Craft’s appeal had enough passion and potency to impress Serra himself, her revered on-air guest for the day. “We need you doing our closing argument,” he joked.
But the conclusion of the trial is still a long way away, with a wide expanse of witness testimony to cross first…and if the evidentiary portion of the trial is half as contentious as the opening, the entire courtroom will be in for a long and wild ride.
Comments (2)
Only registered users can write comments. Please login or register.
Court Reports 
Comments (2)
