When Assistant U.S. Attorney Anne Pings addressed the jury for her closing arguments, she did so with something beyond self-assurance. Her tone, her words, and her facial expressions carried with them a sentiment that was akin to annoyance. This attitude clearly conveyed the message that the whole case was so brain-numbingly simple that its further consideration wasted the time and energy of a whole courtroom of participants. To a jury that had been looking increasingly restless, a pledge that this case was open-and-shut was like music to their ears.
The prosecutor put it quite simply, telling the jury, “You’ve already heard from the most important person you’ll need to hear from to make your decision: Dr. Marion Fry, talking to what she thought was a customer.”
Pings then played a tape that had become all too familiar to the jury – the recording introduced during the testimony of DEA Special Agent Brian Keefe, which detailed a conversation between Fry and an undercover agent posing as a patient. The courtroom lights were dimmed so that listeners could read along with a screen showing a transcript, since the tape was garbled with audio hiss in some spots and occasionally unintelligible. The strange part about the arrangement was that the recording itself was an official case exhibit, but the transcript was never admitted into evidence. This was an odd situation, especially given the poor quality of the audio and the dutiful attention the jurors paid to the screen each time the tape was played. They appeared to be relying upon the transcript for comprehension in some places, giving this document a weight that was disproportionate to its actual evidentiary status.
In spite of this, however, Pings maintained her stance that there was nothing further to consider. There was not a hint of ambiguity in her argument, and for this she was rewarded with looks of relief from her audience as she recapped what Fry had said to the undercover agent. “She told him that if he needed clones, she would give them to him,” the prosecutor summarized. “She told him she was growing marijuana at her house. She told him she had a clone room, a mother room, an outside growing area, and a ‘big old greenhouse.’ She said she had someone there to cultivate the plants, but he failed miserably and she ended up losing an entire crop of 45 plants. She said she kept trying to help him take care of the plants.” Pings scanned the jurors’ faces in a moment of pause before telling them precisely what they wanted to hear. “You heard from Mr. Schafer that he grew and distributed marijuana, essentially admitting that he too is guilty. You heard from both defendants from their own mouths that they are guilty of these charges. That’s all you need to make your verdict.”
Pings assured the jurors that they need not worry about the circumstances or history of the defendants’ involvement with marijuana. She emphasized that it was their duty to focus on the charges themselves, which covered a strictly-defined period from August 1999 through September 2001. “What happened between Dale Schafer and his wife in 1998 is not to be considered,” the prosecutor said discreetly, carefully avoiding mention of things like cancer or compassion. “Under the law you are to apply, the possession, distribution and manufacture of marijuana are illegal for any reason.”
The prosecutor acted as though she could have easily concluded at that point, but with an air of generosity went on to list more seemingly straightforward, effortless damnations. Going through the requirements that were to be proven in each part of the conspiracy charge, she resurrected in short mentions the cast of characters that had taken the witness stand.
Assistant U.S. Attorney Anne Pings sketch by Dr. CARE
First off, Pings claimed, both defendants were part of an agreement to sell dried marijuana and marijuana plants. In fact, as she described it, Fry and Schafer did everything together. “Their offices were together, both contributed the source of customers to this conspiracy, jointly owned the house where marijuana was cultivated,” the prosecutor said, attempting to merge the defendants into one unified entity. If she could group Fry and Schafer this way, she could get two guilty verdicts by skillfully playing out a single hand. “What they did, they did together,” Pings emphasized.
The prosecutor reminded the jurors of Sean “Nacho” Cramblett and his account of obtaining marijuana from the defendants. As she recounted, Cramblett had offered glass pipes in exchange for dried marijuana, but it was Dale Schafer who showed up later and made the trade. “That was one transaction where marijuana was distributed, and they were both part of it.” Pings then took the time to inform the jury that the legal definition of distribution includes sales as well as trades or gifts. “They both handed over baggies and had others that did it for them,” the prosecutor said of the two defendants.
Next in the prosecutor’s review was Jeffrey Teshera, who testified that he had received multiple in-home marijuana deliveries from Mike Harvey as well as several deliveries through the United Parcel Service. The products in question, he clarified, were dried marijuana as well as starter marijuana plants. In evidence was a receipt from Harvey’s book to Teshera’s wife, with a memo for “Rx plants and general hydro.” In fact, all of these deliveries were paid for with checks written out to Dale Schafer, one of which was shown to have been endorsed by Fry before deposit. Pings used this example to emphasize the financial connection between the two defendants, but she wasn’t quite finished mining quotes from this witness.
On the stand, Teshera said that Fry had set up a meeting spot and personally sold him marijuana hand-to-hand at that location. Unfortunately for the prosecution, however, the defense attorneys had made a significant showing that the witness gave an erroneous date for this encounter – rather than leaving her office to meet Teshera, Fry had been in a hospital all day long to coach her step-daughter through a complicated childbirth. Pings, quite predictably, did her best to downplay the flawed testimony. “You’ll hear from Mr. Lichter that Mr. Teshera got the date wrong,” the prosecutor acknowledged. “But it’s not the when of this transaction that is important – it’s where this deal happened that’s important.” Pings then described the location of the meeting, portraying it as a sleazy, clandestine drug deal in a vacant parking lot.
After discussing a few cumulative witnesses, Pings turned to the evidence involving Mike Harvey. “He testified that he made intensive deliveries, and it was corroborated by the testimony of other people,” Pings summarized Harvey’s testimony. “He said the defendant gave him marijuana to distribute, and Mr. Schafer essentially admitted this.” The prosecutor reminded the jury that the links between this witness and the defendants were woven with many tight threads. Harvey drove the defendants’ jeep to make these deliveries, and that his receipt book was found in the defendants’ office during the September 2001 raid. And just to make sure to emphasize the idea that Fry was also in on the deal, Pings recalled that the raid had turned up a triple-beam scale in Fry’s bedroom, where Harvey had claimed she weighed out the delivery packages. Even though this revelation did nothing to conclusively demonstrate Harvey’s honesty on this accusation, Pings certainly acted like it did. “You know he’s telling the truth,” the prosecutor said to the jury about Harvey, using a voice of great earnestness.
Having summed up the examples of the conspiracy to distribute marijuana, Pings moved on to discuss another part of the charge: the conspiracy also involved an agreement to cultivate marijuana. And to make this showing, Pings came back to her prized piece of evidence and once again quoted from the undercover tape. She called Fry’s speech a “sales pitch,” but she also wanted these words to have an undue amount of weight and veracity. Oddly enough, the jury was asked to assume that such advertising language is by nature extraordinarily honest and representative of objective reality. It seems to go against common sense, but said in Pings’ no-nonsense tone; it came off as perfectly reasonable. “You can’t get more evidence than a sales pitch to her customer,” Pings declared.
Fry did use fatal language on the undercover tape, but it was not the language of salesmanship – it was the language of connections, of relationships. She repeatedly said “we” when talking about her husband’s business of selling grow kits, and also about the marijuana plants that were being cultivated at the couple’s home. “Her own words tell you what she did,” Pings said of Fry, speaking to the jury. “You knew there were outdoor plants – Sergeant Ashworth said there were 21 plants outdoors in 1999 and 43 plants outdoors in 2000, and then the DEA found 34 plants when they executed the search warrant.”
Pings spoke about indoor cultivation as well, although in her typical fashion, she acted as though this consideration was actually unnecessary. “You saw the plants, and the photos of the search and heard from the defendants’ own mouths – you knew they grew plants,” Pings said to the jurors, implying that the evidence was obvious. But the crucial finding would be whether the number exceeded a hundred plants, and for this charge the figures were a little wobbly. Proving it would require Pings to get the jury to believe in extensive indoor cultivation that was never seen or discovered by law enforcement.
“Dale Schafer said he only had a few plants [indoors], but you know there were rooted clones in there before the DEA arrived,” Pings phrased her speculation as undisputed fact. “Fry said, ‘Just call up – we always have a system to make clones.’ And when the DEA arrives, there was still a roomful of nutrients and equipment for growing indoor plants.”
In this way, the prosecutor was asking the jury to assume there had been more plants than were actually found. After all, a belief in unobserved plants was necessary for tipping the plant count over a hundred. Pings also employed this strategy while discussing the other charge the couple faced: a substantive count for the actual cultivation of marijuana. On this charge, the prosecutor wanted the jury to believe the plant count was higher than the number that was observed and recorded by law enforcement. After all, the police count from the three relevant grow seasons hovered just under a hundred. Officer Robert Ashworth had recorded 21 plants at the defendants’ home in 1999 and 43 plants during his 2000 visit. Adding in the 34 plants that were seized in the 2001 raid, and the count comes in at just 98. To get the total over a hundred, Pings relied heavily on testimony from various witnesses to help conjure up a belief in an undetermined number of indoor plants.
Starting off, the prosecutor aimed high and asked the jury to have confidence that there had been many of these plants. Harvey, she remembered, had said that hundreds of clones were being grown at the defendants’ residence. But Harvey’s ever-shifting testimony was a slippery place for Pings to stand, and she remained there for only a moment. Witness Tod Zimmerman, who had appraised the Fry/Schafer house in February 2001, got a much more lengthy mention from the prosecutor.
Zimmerman had testified that he saw marijuana clones laid out on tables in an indoor grow area, estimating there were three rows containing up to seventy plants per row. That room alone would have held well over a hundred, in the prosecutor’s account, and possibly even more than two hundred plants. And, in her view, Zimmerman’s story was exceptionally credible because she could conceive of no ulterior motive for his testimony. “His testimony is key because he doesn’t know these defendants at all,” Pings asserted about Zimmerman. “He sees many people and many houses, but he was so concerned about seeing these plants that he got worried about his wife being inside the house with Dale Schafer and Mike Harvey.”
Pings didn’t shy away from addressing some of the flaws in Zimmerman’s account. Sure, he may have gotten a few tiny things wrong during his testimony, like recalling the number of greenhouses on the property, but the prosecutor stressed that these events happened a long time ago and that it was natural for some details to be hazy in his memory. That’s precisely why the prosecutor encouraged the jurors to pay attention to Zimmerman’s actions rather than the minor errors in his account, and to make logical conclusions about the meaning of his behavior at the time. “He saw so many plants that he ran to call the sheriff about it,” Pings said of the witness. “His actions that day speak louder than his words here in the courtroom seven years later.”
The prosecutor then attempted to cast doubt on Schafer’s earlier testimony that he had only grown six clones at a time, and that he had done so with great misfortune. If that had been the case, Pings concluded, then Zimmerman would never have been so alarmed. “There’s no way he rushed out of that house to call the sheriff if all he saw were six spider mite-ridden clones,” Pings speculated about the real estate appraiser. Besides, she said, logic dictates that Schafer would have made better use of the grow room after going to such lengths to set it up. “Surely he paid a carpenter to put in a wall, and to put in electricity, and to install lighting, for something more than a few clones.”
After several sardonic comments, the prosecutor again spoke of Cramblett. This time, she referenced his testimony that the defendants gave him forty marijuana clones and a loan to buy equipment for the cultivation of these plants. Pings put a point on the fact that Cramblett was only 22 years old when he got involved in business deals with the defendants, saying the word “twenty-two years old” with such heavy emphasis that it made it sound like this was itself a criminal charge of some kind. With increasingly vivid language, the prosecutor jogged the jurors’ memories about Cramblett and his story on the stand. “Remember the brunch where they went upstairs and all smoked pot, and Dale Schafer asked him, ‘Hey, you want some morphine?’” Pings recounted for the jury, trying somewhat comically to deepen her voice to deliver Schafer’s line. “After this bizarre interlude, they went on tour outside and he saw plants in the bunker. Mr. Schafer handed him trays of forty clones, and he said this forty was just a small dent in the number of plants that were there.”
The prosecutor also made sure that the jurors understood that Cramblett had good reason for having a sharp memory and keen recall about those particular clones. “He remembers those plants well,” Pings said of her witness. “Those are the plants he got arrested for. And Dr. Fry came to court and said, ‘Those are my plants!’”
Speaking of Fry’s words, the prosecutor was all too happy to direct the jurors’ attention back to the undercover tape one last time. On the recording, Pings pointed out; Fry makes the comment that she lost all 45 plants of her plants while someone else was taking care of her crop. “Flip that on its head, and that means that there were 45 plants alive at one time,” Pings ventured. She continued to urge the jury to follow her reasoning that there must have been many marijuana plants on the property shortly before the raid. This allegation was supported not only by logic, but also by Fry’s description of having 45 plants and Heather Schafer’s comment about cleaning out the house in preparation for her father’s campaign for District Attorney. The cleaning comment, according to Pings, was what had motivated the police to get the search warrant as soon as possible. But, as the prosecutor told the story, it was already too late – the family had been cleaning out the house, just as Heather said, and by the time the officers got the warrant and executed it, there were only 34 plants left to be seized on September 28th, 2001.
As she wrapped up her speech, Pings was left to do her ultimate calculation, and she regained her air of generosity for this task. Regarding the witness accounts about hundreds of marijuana clones, the prosecutor offered to leave them out of the final count. Law enforcement reports had totaled 98 plants, but all it took to break the hundred mark was Schafer’s testimony about cultivating two different sets of six clones. This brought the count to 110, but if the jury needed more convincing, Pings reminded them that they could include the 45 plants that Fry mentioned on the undercover tape. “There’s no requirement that the plants lived forever, that it was a healthy plant or a strong plant,” the prosecutor clarified. “It doesn’t matter if it ever had spider mites, just if it had roots and was alive.”
Giving parting advice to the jury, Pings spoke like a sports coach. “Keep your eye on the ball,” she urged with determination. “Remember the testimony of the witnesses who got marijuana hand-to-hand. Remember Mr. Schafer’s testimony that he grew plants and gave them away. And remember the words of Dr. Fry on the undercover tape.”
For poetic fulfillment, the prosecutor finished with the very same words she had uttered at the beginning of her closing statement. “They grew, they distributed, they’re guilty,” she repeated about the defendants, completing a rhetorical circle with words of simplicity and confidence.
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