On August 13th, 2007, the defense of Mollie Fry and Dale Schafer kicked off with a series of character witnesses. Supporters of the embattled couple marked the occasion with a demonstration in front of the federal courthouse, displaying signs to motorists and passersby for over an hour before the proceedings began. Inside the courtroom, however, it soon became clear that the event had put the marshals on guard, and what ensued was a typical post-protest crackdown on gallery etiquette.
This pattern had become noticeable during the trial, with the marshals giving an increased frequency and severity of reprimands to courtroom observers directly following street protests. At these times, the glorified security guards threatened to kick out observers and cite them for behavior as trivial as bobbing their heads. On this day, however, the marshals made the mistake of depriving a water bottle to the wrong guy.
After observer Ryan Landers was ordered to part with his water, the intrepid activist sought the intervention of the defense team and convinced Tony Serra to champion his cause. Promptly taking the matter before Judge Damrell, the defense attorney argued that Landers had a medical condition that required frequent hydration and requested that the water bottle be allowed back into the courtroom.
The judge appeared perplexed by this plea, processing the information by spitting it back out as questions. “He has a medical condition? What medical condition does he have? He has to have water at all times?” Judge Damrell asked, not pausing for answers before he went on to his next question. “What kind of bottle is this?”
Landers fetched the banned bottle for presentation, and upon visual inspection, the judge could find no reason to prohibit it. Seeming perturbed by the undue amount of attention paid to the presence of a nondescript water bottle, Judge Damrell decided hastily, “I’ll allow that.”
Another consequence of the demonstration was that Assistant U.S. Attorney Anne Pings used it to bolster her daily request for a poll on the jury’s media exposure.
“There were a number of people outside the court today, at exactly the time the jurors would be arriving, and they had signs and they were – well, the word ‘protest’ seems a little strong, but there were demonstrators,” Pings said with consternation. In her plea to the judge, she also noted her alarm about a headline on the defendants’ website that read “Cool Couple Hopes for Jury Nullification.”
Judge Damrell listened to the prosecutor’s worries, but didn’t do much to address them. Later, when the jurors entered the courtroom, he took care to ask them whether they had been exposed to any information or conversations about the case. However, the judge was not particularly anxious about the influence the demonstration may have had on the jurors. He acknowledged that they may have seen some signs while coming to the courtroom, but his concern was whether anything happened beyond the viewing of banner messages. The jury collectively indicated that nothing had occurred, an assurance that satisfied the judge and the prosecutor…for the time being.
Protestors at Fry-Schafer medical marijuana trial in Sacramento
Before the day of witnesses could get underway, however, there were some other matters to be discussed outside the presence of the jury. First off, the prosecution was concerned about the responses that would be given when character witnesses were asked questions about the defendants’ level of honesty and tendency to obey laws. Although she left her sidekick prosecutor Sean Flynn to argue this topic in front of the judge, Pings prefaced the matter by alleging that the defense intended to use character witnesses for the purpose of sneaking in references to medical marijuana. The defense attorneys, she claimed, were “trying to do through the backdoor what they cannot do through the front door.”
The innuendo in this comment, though seemingly unintentional, inspired a few derisive titters from the audience. The marshals, however, let the laughter slide with just flash of sour looks as the sole punishment. Following the water bottle incident, they were nursing the loss of some authority.
Serra stepped forward, speaking for the defense. “I guarantee I won’t ask anything improper of the character witnesses,” he said, palms upturned in a display of honor. “But law abidingness is a character trait.”
Flynn clarified the government’s requests. “It should be about law abidingness generally, not about the medical marijuana law in particular,” the young prosecutor argued. “With regard to any kind of state law, there is no good faith defense. Your honor has ruled on this. References to a defendant’s charitableness, or whether the defendant is a good mother or a good father, is not appropriate…and in drug cases especially, it’s just not proper.”
Judge Damrell referenced an excerpt from a book of codes. “‘…When a trait is an essential element of a charge, it can be raised,’” he read. “That’s not the case here.”
Serra had a broad interpretation of the statement. “The generic trait of law-abidingness is relevant to every case,” he asserted.
Flynn, of course, had a different take. He claimed that, in order to have witnesses testify about a defendant’s law-abidingness, that defendant must have had his credibility attacked on the stand or in out-of-court statements. The judge took a short recess to consider this claim, ultimately deciding that the prosecutor’s assessment did not apply. “The defendants have every right to character witnesses to testify to honesty, veracity, and law abidingness,” Judge Damrell declared upon his return.
It may have sounded like a victory for the defense, but first sentences are often deceiving. The judge was not quite yet finished. “Having said that,” he continued, “under these particular circumstances, it’s not admissible to ask for the basis for their opinion. This invites discussion of specific instances.”
“But an opinion without foundation is worthless,” Serra declared, only to be met with condescending laughter from the judge.
Sensing the debate was getting too abstract, Pings jumped back in to provide some concrete examples. “Mr. Serra typically asks the witnesses the basis for their opinion on the defendant. Some replies would be ‘I’ve known them all my life’ or ‘we’ve been friends for decades.’ What I want to prevent are answers like ‘I know them from the medical marijuana movement’ or ‘they helped me with my illness’ or other statements the court has ruled inadmissible.”
Judge Damrell agreed wholeheartedly. “Yes, those would be getting into specific instances, and I’m precluding that,” he explained. “With the issue regarding medical marijuana laws and the conduct relating to this, it’s simply not admissible.”
And with that castration, the defense moved on to address its individual witnesses.
Chris Conrad
Chris Conrad
Author and court-qualified expert witness Chris Conrad traveled some 80 miles from the San Francisco Bay Area to testify for the defense, but never made it the final 30 feet up to the witness stand. Regarding Conrad, the prosecutors claimed that the defense did not give proper notice of the proposed testimony.
Flynn argued that the proffer was received too late. “We didn’t know about Mr. Conrad until Thursday afternoon, when we rested our case,” he told the judge. Furthermore, he argued, the proffer was inadequate. “We got a one sentence email from the defense about what the testimony would be,” the prosecutor complained.
Serra explained that he didn’t realize they would need Conrad’s testimony until a government witness testified about spider mites on the plants seized from the defendants’ home. At that point, the defense attorney claimed, Conrad’s expert testimony on the effects of spider mite infestation became suddenly necessary. “Their expert precipitated our argument,” Serra claimed, and given that the government rested its case ahead of schedule, there was not much time for advance notice.
The judge wasn’t buying it. “You gave no proper notice, the prosecution had already rested, and now you’re saying spider mites is an issue?” Judge Damrell asked skeptically. “You said from the beginning this wasn’t an issue to you. This is not a surprise.”
The defense attorney began to explain that he had informed Pings verbally in court about the expert witness, but Judge Damrell would hear none of it. “That’s not enough,” he roared, cutting Serra off mid-sentence to read aloud the rules for submitting proposed witnesses. “That’s the rule, and it applies to you just like it applies to everyone else in this courtroom,” he shouted at Serra.
“Well,” the defense attorney said casually, “Conrad will be here.”
“What?!” the judge demanded, fuming. Given his tone, it seemed he had interpreted the comment as a challenge to his authority.
“He’s on his way,” Serra clarified, shrugging. “He’ll be here later this afternoon.”
The judge eased a bit. “Well, it’s way too late,” he summarized. “You can’t bring a witness after the government has rested. The bell has rung. The bus has left the station – the train’s out of the station. It’s too late.”
And, for Conrad, that was that. He was left to enjoy an idle summer afternoon in the state capital.
Joel Bingham
Joel Bingham
A friend of Schafer’s since grammar school, Joel Bingham successfully used his time on the stand to present a squeaky clean image of both himself and his lifelong pal. The small-town postmaster got in several inspiring statements about the defendants, interrupted by only a single objection from the prosecutor.
That objection came as the witness was describing how he and Schafer joined the navy together, only for Bingham to get injured while in service. According to the witness, that was around the time that Schafer helped him out a great deal. “After I was injured, he would take me out and feed me –”
“Objection,” Pings broke in, asking the judge to refer to his ruling on this matter. Apparently, this testimony reminded the prosecutor of the statements she had earlier asked the judge to prohibit: specifically, the one she characterized as ‘they helped me with my illness.’
Serra was vexed by the interruption. “It’s a tactic,” he claimed, “to object to every trivial thing, to break the cadence.”
The judge was unmoved by the defense attorney’s concerns, and sustained the objection without comment.
Amazingly, however, the remainder of Bingham’s testimony was given without interruption. When asked about Schafer’s law-abidingness, the witness gave a compelling representation. “As long as I’ve known him, I don’t think he’s ever been arrested. I don’t think he’s ever broken a law. I don’t even know if he’s gotten a speeding ticket before.”
But it was the assessment of his friend’s veracity that was the most touching. “Mr. Schafer is probably one of the most honest and trustworthy people I know,” Bingham said with palpable emotion. “I believe his integrity is impeccable, and I love him to death.”
In response to a short questioning by defense attorney Laurence Lichter, Bingham gave a similarly glowing assessment of Fry’s honesty. “Dr. Fry is a very upstanding citizen. She’s a very good friend of the family. I do believe she’s a very, very good person.”
To round it off, the witness also gave Fry strong support with regard to her law-abidingness. “I don’t know that she has ever broken the law,” he said sincerely.
The prosecution opted not to cross-examine Bingham, so, with a smile and a sense of goodwill; he climbed down from the stand almost as soon as he climbed into it.
Jacob DuCharme
Jacob DuCharme
When Jacob DuCharme took the stand, it appeared that the court was going to get another unambiguously feel-good witness. The well-dressed young man carried himself like an Eagle Scout on an important job interview, looking clean-cut and upright from every angle. Serra even did his part to get things started off on the right foot, joking as he struggled to grasp the unusual surname, “Sometimes I mispronounce my own children’s names.” But no amount of pleasantness could steer the testimony away from the inevitable pitfalls, which began with the prosecution’s objections during direct examination.
After DuCharme explained that he and his wife were briefly employed at the defendants’ office in early 2000, he was asked about Schafer’s reputation in the community. “People held him in the highest regard,” DuCharme asserted. “He participated in community events. He’s a family man –”
Pings objection, which was quickly sustained by the judge. Courtroom observers looked puzzled for a few moments, before remembering what had been said about testimony regarding the parental skills of the defendants. DuCharme was left to amend his sentence, which seemed rather generic in its new state, “Everyone I know has a very high opinion of Mr. Schafer with respect to law-abidingness.”
When asked about why he and his wife left Schafer’s employment, DuCharme referenced difficulties with Paul Maggy and Traci Coggins, the couple who trained him for his job there. “The problem wasn’t Dr. Fry and Mr. Schafer – we love Dale and Mollie. It was Paul Maggy and Traci Coggins – we felt them to be of poor character –”
Pings immediately objected. Paul Maggy, after all, had been her lead witness, and her case had a lot riding on his credibility. In response to her concern, Judge Damrell turned to the jury and instructed them to disregard the last comment made by the witness.
In spite of the objections, DuCharme did manage to get some positive statements on the record…and keep them there. First and foremost, he testified that, while at the office, he never saw Fry or Schafer give marijuana to anyone.
About Schafer’s law-abidingness, he said solidly, “He was not the maverick individual. He followed the letter of the law, and encouraged others to follow the letter of the law.”
Similarly, the witness described Fry as an “absolutely honest, upstanding, vigorous character,” and had even more to say about the defendants as a couple. “They both have excellent standing in the community in which they reside, with regard to honesty, veracity and trustworthiness.”
This glow of amity was shattered once Pings began her cross examination. She was intent on destroying the credibility of the man who badmouthed her lead witness’s character and reliability, and she went right for the throat.
DuCharme had estimated the duration of his employment with the defendants to be approximately five months, but Pings quickly demonstrated that the actual length was a mere three weeks. DuCharme, admitting the error, attributed his poor memory of the timeline to the fact that the events occurred more than seven years prior.
The prosecutor, however, had another theory for the memory glitch. “When you were working for the defendants, was your ability to perceive what was going on affected by the fact that you were using cocaine?”
The witness, not concealing his surprise at the question, denied the accusation. Pings, predictably, pursued the matter. “Is there a reason why not?” she asked sharply.
“Yes, because I only used cocaine once in my life,” DuCharme said with emphasis.
The prosecutor continued, “But weren’t you on probation for drug use?”
“No, I was on probation for reckless driving,” the witness clarified.
“But isn’t it true that when you were on probation, you were given diversion for drug use?” Pings was relentless.
“Yes,” DuCharme admitted.
The prosecutor asked the next question with flourish, as though celebrating the cornering of her opponent. “And did you tell Dr. Fry you were on probation for cocaine?”
“I was not on probation for cocaine. I was on probation for wet and reckless driving. I told Dr. Fry about it for full disclosure, that when I was arrested in South Lake Tahoe they found a minute amount of cocaine, that was so minute I wasn’t even charged for it.”
Pings responded by simply reading off the code for charge of possession of a narcotic controlled substance, as though from a record, but was interrupted by an objection from the defense. “This is not proper impeachment!” Serra declared, and in response, Judge Damrell summoned the attorneys to his bench for a sidebar. At the conclusion of that conference, Pings got DuCharme’s paperwork from Dr. Fry admitted as evidence. She then marched the document over to the witness stand and declared she had no further questions.
On re-direct, Serra had another idea about what to do with the paper that was just dumped in his witness’s lap. “On the bottom of that document, it says, ‘Marijuana is still illegal under federal law,’” he began. “In working for the defendant, did you have a belief you were violating the law?”
Pings objected, but the defense attorney quickly countered, saying to the judge, “She opened the door!” Judge Damrell ignored his claim, sustaining the objection instead.
But Serra wasn’t done. He turned to the witness again, asking, “Did you ever hear Mr. Schafer explain that statement to anyone?”
An objection came from Pings right away, and the judge was just as quick to sustain it.
The defense attorney kept going. “Did you have an understanding of federal law, or of federal policy, with regard to marijuana?”
Yet again, Pings objected, exasperated. Her objection met its predictable fate and was sustained by the equally exasperated judge.
Serra was persistent. “Did you ever see any crimes?”
Pings objected, right on cue, with Judge Damrell ruling immediately to sustain the objection. They were on a roll now, but the defense attorney cut it off.
“Nothing further,” Serra said, taking his seat in order to give re-direct over to Lichter.
Serra didn’t stay in his seat long, though. In response to Lichter’s first question to the witness, DuCharme explained that he was told in court that he only had to disclose his diversion if he was seeking to become a federal agent or something similar. Hearing this, the attendees at the prosecution’s table couldn’t help themselves, breaking out in grins and giggles. Serra wasn’t going to take that sitting down, and in an instant he was back on his feet, pointing across the courtroom and accusing the prosecutors of “grimacing and laughing.” Especially given their close proximity to the jury box, he maintained, this was unacceptable behavior. “The jury sees it!” he declared. “It’s very unprofessional!”
The judge, however, had not seen it, but he issued a warning against such reactions in the future.
Elvy Musikka
Elvy Musikka
The final witness of the day was Elvy Musikka, a glaucoma patient who is part of the federal government’s Compassionate Investigational New Drug program. Although closed to new entrants since 1991, this program still provides its surviving participants with marijuana that was grown for research purposes at the University of Mississippi. Every month, Musikka is allotted a cylindrical tin of pre-rolled marijuana cigarettes, and to the prosecution’s dismay, she arrived at the courtroom to testify with this very same container cradled in her arms.
According to Musikka, the marshals were reluctant to let her pass when they spied the tin. Even when presented with the claim that this was federally legal marijuana, they investigated it suspiciously. Since the marijuana provided by the federal government is often over a decade old, and the manufacture date stamped on the carton had long since passed, the marshals reached the conclusion that the tin was invalid because it had “expired.” With much persuasion, however, the witness was finally permitted to escort her marijuana through the courtroom entrance…but she didn’t get much further.
Pings was appalled by the thought of Musikka carrying her bounty up to the witness stand, and judge soon heard all about it. “I understand this next witness is carrying with her a demonstrable object, presumably to show the jury,” the prosecutor told Judge Damrell shortly before the jurors returned from their afternoon break. Pings then heightened her tone of urgency to describe what she believed to be contained in the so-called demonstrable object. “I understand she’s carrying with her her supply of marijuana that she got from the federal government.”
The judge was quick in his decision. “I will not permit her to bring a prop in front of the jury.” He ordered the defense to assist Musikka in stashing her tin in the hallway, and then reassured the prosecutor that there would be no discussion of medical marijuana, glaucoma, or the federal program. This established, the jurors were let back into the room to sit in the jury box and await the next witness. Finally, stripped of her tin – and, to some degree, her desired testimony – the nearly-blind Musikka was led up to the stand.
But this witness didn’t give up so easily. Right as she was taking her seat, she cut off the court clerk who was attempting to administer her oath. “Wait, wait,” she said, “what I want to do is ask if I can tell the whole truth –”
The judge interrupted and told the witness just to take the oath, but Musikka just continued to speak her piece. “…because I don’t want to commit perjury,” she concluded.
“You’re not going to cross that line,” was the comment she received in reply.
Firmly urged once again to take the oath, Musikka relented and swore to tell the truth, the whole truth, and nothing but the truth, so help her God. And, to her credit, the courageous 68 year-old did so to the extent that she was allowed…and a little bit more too.
When Lichter asked her if she was aware of Fry’s reputation for trustworthiness, Musikka replied, “She is dearly loved by all of us, and admired, and we feel that she has never done anything wrong in caring for her patients.”
Pings was quick to register her opposition to this comment, but, to the amazement of the audience, Judge Damrell decided to overrule the objection. “I’ll allow the answer to stand,” the judge said, in a rare move favoring the defense.
The witness did not fare so well on other lines of questioning, however. In establishing the background of her friendship with Fry, she twice described attending medical conferences together, but both times an objection from Pings left her with an instruction forbidding the use of the word ‘medical.’ Musikka was able to do little more to detail her history with Fry, and ended up speaking instead about holidays and weekends spent at the doctor’s home.
The witness did, however, get some favorable ideas conveyed to the jury. She repeatedly reinforced Fry’s status as a trusted and beloved doctor in her community. Answering about law-abidingness, Musikka said that she believes Fry has never committed a crime. But the witness’s most poignant statement came in response to a question about Fry’s honesty. “I think she would go to jail before she’d tell a lie,” Musikka said with conviction. “I do believe that.”
It was a powerful statement to end the day with, especially given that Fry was on trial for crimes that could easily land her in jail for decades. As the last witness, Musikka’s words provided the heartiest fodder for the evening’s reflection, and she delivered this parting message with feeling and impact. She left the stand with a gracious “thank you,” and the court went in recess directly afterwards.
Even more gracious, however, was defense attorney Laurence Lichter. As the audience members rose to file out of the courtroom, he gave them a warm verbal salute. “To everyone who came here today – or at least everyone who wasn’t paid to come here today – thank you. That is the finest character evidence anyone could have given.”
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