SAN FRANCISCO, CA -- Thursday was a dramatic day in the federal trial of Charles “Eddy” Lepp, a medical marijuana advocate and Rasta minister who’s charged with growing 25,000 marijuana plants on his property in Upper Lake, California. The morning started with a barrage of questions from the jury, progressed with the government using Lepp’s MySpace site against him, and finished with a gripping speech by the defendant himself. All in all, it was a whirlwind of a day in court.
So far, Lepp’s defense has been that he did not possess or cultivate any marijuana – instead, he allowed his church-members to cultivate marijuana on his land for religious use, and he also opened his land to cultivation for medical marijuana patients. In California, these patients and their care providers are protected by a voter-enacted state law, but still vulnerable under the continuing federal prohibition on marijuana. When agents for the U.S. government raided Lepp’s property on August 18th, 2004, they uprooted the largest garden of its kind in the world.
Lepp believed he would have protection from federal prosecution under the Religious Freedoms Restoration Act, but a ruling from the judge shortly before trial shattered this expectation. Despite the necessary finding of Lepp’s sincerity of belief, Judge Marilyn Patel decided that there was a special risk of diversion due to the large quantity of marijuana involved in the case. It’s an unconventional application of RFRA law, which the judge referred to as “evolving,” and it left Lepp to proceed to trial.
The case has been going slowly over the past four years, but it progressed with astonishing speed ever since jury selection concluded Tuesday afternoon. The government’s witnesses absolutely whisked by on Wednesday, leaving one juror so bewildered that she sent a lengthy list of questions to the judge Thursday morning. Reading over the series of inquiries, Judge Patel commented about the curious juror, “I don’t know whether she’s doing a research project…”
In the end, however, it turned out that the questions would go unanswered. They were largely about matters of evidence, and Judge Patel had to advise the jury that if a piece of evidence wasn’t addressed in a case, it wasn’t relevant for consideration. That matter aside, it was time for the defense to call its first witness, Smiley J. Harris.
Smiley J. Harris photo by Vanessa Nelson
“Is that the witness’s real name?” asked Assistant U.S. Attorney David Hall, only to be assured that it was not a nickname. But if courtroom observers had anticipated that this witness would live up to his moniker with a perfect smile, all expectations were dashed once he took the stand.
The gaps between Harris’s teeth were multiple and conspicuous, as well as somewhat endearing. Aside from this feature, Harris showed himself to be a tall black man with a self-assured demeanor, a large gold ring, a scruffy goatee and a headful of long braids. When he spoke, he was precise with his words, taking a kind of craftsman’s care in their selection and articulation. As defense attorney Michael Hinckley began the direct examination, it soon became clear that Harris liked to call the shots.
His first action on the stand was to refuse the administered oath, instead swearing, “I affirm that my words will be true.” It’s a substitute statement often made by those uncomfortable with the religious overtones in the court’s standard oath, but Harris quickly demonstrated that it wasn’t just for atheists. Early on in his testimony, Harris told Hinckley that he was a reverend for the Church of Greater Faith and Redemption. He went on to say that his church believes marijuana to be the Tree of Life, but at this point the prosecutor interrupted and asked that the comments be stricken from the record due to relevance.
Hinckley didn’t put up a fierce fight on this point. He was, it seemed, more interested in getting to the key question: whether there had been an arrangement for the Church of Greater Faith and Redemption to cultivate marijuana on Lepp’s land in 2004. Harris readily admitted that there was such an understanding.
Hinkley’s next question got only partway asked. “How many plants did–”
The interruption came from the witness, who quickly answered, “250.”
Judge Patel shot a suspicious glance towards the stand. “Wait until he’s done asking questions,” she told the witness.
Harris continued by affirming that Lepp had done nothing to further this agreement, aside from providing the land on which the marijuana was cultivated. At this point, Hinckley approached the stand with a poster-sized blow-up of an aerial view of Lepp’s property and had the witness identify the area his church had been permitted to use. As Hinckley went to put the display down, however, Harris showed some consternation and wanted to know whether the defense attorney was going to ask about the waterway. When prompted as such, Harris gladly responded that the reason he remembered his church’s cultivation area was because it was right along the water supply.
Although it was a perfectly reasonable answer, the way it came about looked overly practiced. That wouldn’t be a problem during cross-examination, however. Once the prosecutor took over the questioning, spontaneity was the name of the game.
Hall started out with a bang. After stepping forward, he stood with his arms crossed in a posture of stern disapproval. “Where have you been?” he demanded of the witness. The question was uttered with an implied air of accusation, the way it might be flung at a truant pupil or a tardy spouse.
Harris appeared serene. “What do you mean?”
“It’s been four years,” Hall noted. “Have you gone to anyone and said, ‘Those are my plants’?”
It was a question that brought a mess of an answer. Harris first responded by confidently saying he had told Judge Vaughn Walker, whose courtroom is in the very same building. On further questioning from Hall, though, it was revealed that Harris had not been allowed into the courthouse on the day that he was supposed to deliver these statements. It was also revealed that Harris considered Judge Walker responsible for barring him from entry. “He arranged for me not to be able to come into this building,” Harris said.
That accusation appeared to perplex Hall, and the prosecutor kept digging at the matter. It did little good at first. The witness just rephrased. “Judge Walker decided that I should not be allowed in,” he declared.
Hall had to get very specific with his questions before he was able to reach an understanding that the witness had been denied entry due to a lack of identification. After establishing that Judge Walker hadn’t actually told Harris that he wasn’t allowed inside, Hall asked, “Wasn’t it because you didn’t have ID?”
“No,” Harris answered simply. When he was pressed, however, he finally admitted, “They said I didn’t have valid government identification.” It was one of many responses that came off as evasive.
This explanation still didn’t elucidate why Judge Walker was being blamed, and Hall seemed determined to find out. In response, Harris said he held Judge Walker responsible because he knew Harris had business there, but on that day, Harris wasn’t signed in the way he usually was. “I know there’s a procedure because I’m here now,” he asserted. “The procedure was used over and over again and then it was different.”
Those circumstances may have been enough to convince Harris of the judge’s sinister motives, but it may not have been adequate proof for the jury. If this was indeed the case, Harris would appear paranoid to the jurors and thus less credible. Things were turning tough for the witness.
Hall switched his questioning to address whether, on the day of Lepp’s raid, Harris had claimed his share of the plants. “I told them some were my plants,” Harris said of the law enforcement agents at the scene that day. Then he added, “I also told them I was gonna sue them.”
When Hall asked whether he knew which plants were his, Harris replied, “I couldn’t tell you that one, that one, that one.” Explaining the arrangement once more, he said, “We had a generalized area.”
It didn’t satisfy the prosecutor, who broke into an accusatory tone again. “Would it be fair to say that you didn’t have 250 plants – that you just wanted 250 out of it?” he needled.
“No,” Harris said, staying firm. “The position I served for the church was more administrative. I don’t have the duty of doing the actual cultivation.”
Smiley J. Harris tried to explain. Photo by Vanessa Nelson.
Asked whether he had ever been on the fields before the day of the raid, Harris testified that he had walked the canals and saw the planting. “But I didn’t do the actual planting,” he insisted yet again. “I tried to tell you that.”
Hall’s pursuit of the topic was relentless. “So you don’t know if there was string or a tag that said: Church of Greater Faith and Redemption?” he pushed.
Harris was about to launch into yet another incarnation of his previous statement, but Judge Patel intervened to break the cycle. “But you understood there was a certain area with your plants,” she suggested, “like the back ten feet, or twenty feet, or whatever you call it.”
Harris accepted that characterization. “Yes,” he answered readily.
Seizing on this moment of accord, Hall suddenly requested the names of the members of the Church of Greater Faith and Redemption. Harris was not so obliging. He hesitated, hemming until Hall got pointed. “Is it you don’t know or you don’t want to tell me?” the prosecutor asked.
“I don’t want to tell you,” Harris shot back.
Hall then pushed for the witness to specify which person in his church made a deal with which person in Lepp’s church. Harris repeated his previous statement, saying that his church had been permitted by Lepp to cultivate on the land, but Hall wanted more. “A church is not an amorphous body,” he explained. “It doesn’t have a presence in a room.”
Harris persisted in saying that he didn’t understand, so Hall tried to be more direct. “Were you there when an agreement was made with Mr. Lepp to use his land to grow marijuana?”
“Yes,” Harris replied.
“Who else?” Hall queried.
The witness was vague. “I don’t know.” When the prosecutor persisted, Harris continued. “I had the understanding we had this land to grow on,” he said. “The agreement is ‘Ok, Smiley, your church has land over there –”
Hall broke in. “Who said that?” he demanded.
“I don’t recall,” Harris said, resisting.
It was then that federal agent Brandon Burkhart, who was assisting Hall, entered the room in a hustle and brought a document directly to the prosecutor. Hall paused to scan the paper briefly, then hit with his zinger and asked Harris if he had ever been convicted of a felony.
The question appeared to hit the witness off guard. “Explain that again,” he ordered back.
After clarifying with Harris that he knew what a felony was, Hall asked the key question again. “Have you ever been convicted of a felony?” he pressed.
Harris responded by issuing another command. “Give me a time frame.”
All too happy to oblige, Hall took Harris back to the 80s. “In 1984, were you convicted of burglary and auto theft?” Amid the bustle that followed, Hall continued, “Weren’t you sentenced to eight years in prison in Contra Costa County?”
Confronted with these details, Harris was still reluctant to give a yes or a no. “When a certificate of rehabilitation is issued, it’s not supposed to be addressed.”
Hall began announcing other alleged convictions of Harris’s, including another one for burglary and one for receiving stolen property. “Isn’t that right?”
“I’m confused,” Harris offered.
Judge Patel broke in. “Answer the question,” she instructed. “Were you convicted and did you serve the sentence?”
“That’s not the question,” Harris dodged.
“Just answer,” the judge insisted.
“Yes, I was,” Harris admitted, then went back to trying to direct the proceedings. “Let’s move on.”
But in the next moment, as soon as he was put back into Hinckley’s hands for re-direct, the witness wanted to go backward rather than forward. “Can I say something about what he said?” Harris asked the defense attorney.
“I don’t think you can,” Hinckley said affably. He then prompted Harris to talk about the agreement for his church to cultivate marijuana on Lepp’s land. “Now, you had an agreement with someone to have plants there?”
Harris readily agreed. But, no matter how many ways Hinckley asked, the witness gave only blanks when asked who made that agreement with him. Eventually, the defense attorney gave up and yielded the floor to the prosecutor for re-cross. It would be the last phase of Harris’s testimony, since Judge Patel made it clear from the outset that each attorney would be permitted only two rounds of questioning for each witness.
Hall picked up the same thread of inquiry that Hinckley had abandoned, but this time Harris responded that he had just remembered the answer. “Linda might have had something to do with it,” he said. “I don’t know.”
Hall left it at that. “No further questions,” he announced, turning back to her seat.
Harris’s revelation was left hanging there, without any clarification or explanation, and as he began to rise, there was a small hubbub in the courtroom. “Who’s Linda?” was uttered twice, audibly and urgently. Linda was the name of Lepp’s deceased wife, but it hadn’t been confirmed that this was the Linda indicated by the witness.
Hurriedly, Hinckley appealed to Judge Patel. “Can I ask just one more question?”
The judge had meant it when she put limits on questioning, and she refused the defense’s request for a re-re-direct examination of the witness. She would not leave the matter unattended, however, and turned to face Harris to ask the hot question herself. “Who is Linda?”
Harris looked pensive. “I think she had something to do with the church.” Judge Patel inquired more deeply, wanting to know if this Linda had any relation to Lepp aside from her membership in the church, but Harris said he didn’t know and just gave the same answer over again. The judge then relinquished him, and he stepped down from the witness stand.
As the first of Lepp’s witnesses, Harris bore most of the burdens of first impressions for the defense. As such, he had been a mixed bag. In a sleeveless t-shirt and dingy, baggy jeans, he escaped any accusation of being obsequious in his attire. And while he gave the appearance of being grounded and thoughtful in direct examination, the way he eluded the prosecutor may have sent a signal to the jurors that this witness is hiding something. Harris’s refusal to disclose his church membership was the most honorable form of his evasiveness, but he may have hit a low point with the jury when his criminal record was finally exposed. A single felony burglary conviction could possibly have been overlooked, especially given the witness’s claims about his certificate of rehabilitation, but Harris’s long list of convictions on theft crimes left him with a huge handicap as far as winning the jurors’ confidence.
On the more substantive level, Harris did provide important testimony to back up Lepp’s defense that he had opened his fields for cultivation by religious groups who used marijuana as a sacrament. However, Harris gave the appearance of being rehearsed when it came to the questions on that crucial subject, and woefully unprepared when it came to topics introduced by the prosecution. In addition, his continual attempts to direct the proceedings put him in strong contrast to the witnesses who preceded him, and this may have made him seem too aggressive in the jurors’ eyes. Without doubt, many of them shifted uncomfortably throughout Harris’s testimony.
Nevertheless, the most crucial of the defense witnesses still remained – the defendant himself was determined to take the stand, and he was sworn in as soon as Harris finished testifying. Lepp presented with his usual demeanor, conveying an aura of being centered in the present moment. His deep voice was calm and solid as he answered questions, creating a sound that was nearly hypnotic at times.
Like the witness before him, Lepp established his religious status promptly. He described himself as the minister for Eddy’s Medicinal Gardens and Multi-Denominational Chapel of Cannabis and Rastafari, a wordy organization whose name is printed on a sign at the foot of his gated driveway. Lepp called it a blend of Christianity and Rasta religion…which made sense, he noted, since Rasta is Christian. When Hinckley asked about rituals, Lepp replied that his church observed all the Christian holidays. He then explained that what set them apart from other Christian religions was the use of ganja, or sacramental marijuana.
Lepp testified that he had been using sacramental marijuana ever since 1996, when California passed Proposition 215 to allow the medicinal use of marijuana. His testimony suggested a blending, or at least a close balancing, of the concepts of religious and medical uses of marijuana. This was nothing new for Lepp – these ideas have long intertwined in his approach, and are reflected in how the garden was set up in 2004. “Not every church member grew marijuana there, but everyone who did had to have a valid medical marijuana card,” he clarified.
Answering questions from his attorney, Lepp told the jurors all about his attempts to notify elected officials about the garden. He said a letter was sent out to his local district attorney, county counsel, board of supervisors and sheriff’s office, as well as the governor and state attorney general. In it, according to Lepp, he declared that his group was growing marijuana for medical and sacramental use, and that anyone who had a problem with that could contact him or his two attorneys.
The defendant then addressed the incident that was the focus of the government’s witness testimony: the uninvited visit the sheriffs made to Lepp’s property on August 9th, 2004, a little over a week before the raid. He testified that he had been in his house when other people started telling him that armed thugs were trying to steal the crop. When Lepp looked through his binoculars, however, he recognized David Garzoli and realized it was law enforcement that had come onto his field.
Hinckley asked his client how he knew Garzoli, which was one of the topics that had been on the unrequited list of juror questions from that morning. “I was the first person tried and acquitted under Prop. 215 in 1996,” Lepp elucidated. “He was the investigator in that case, and he and I had a standing understanding that he could come in and look at anything, day or night, if he just called me from the bottom of the driveway.”
Regarding the infamous ‘rolling in it’ statement, Lepp went into detail.
“I meant I was rolling it – literally rolling. I meant there was enough marijuana here to keep us rolling forever.” After making some joint-rolling gestures, he expanded. “Rolling is synonymous with us with using or smoking or partaking in it.”
The court appeared to be tolerating all of the defendant’s monologues.
Hinckley went on. “There was testimony that you were the boss of the field,” he reminded Lepp. “Were you the boss of the field?”
In response, Lepp gave a gentle smile and said, “Everyone who knows anything knows that, if there was a boss of the field, it was my wife.”
Hinckley then made a quick set of inquiries necessary for the defense, starting with, “Did you own any of that marijuana?”
“No,” Lepp replied.
“Did you plant or harvest any of it?” the defense attorney asked.
Lepp hesitated. “I joked with a detective once that I planted the whole field,” he said, before explaining the reasons why he was physically incapable of such a task. “I have seventeen different medical conditions that alone would qualify me for medical marijuana.” He rattled off a quick list: fractured vertebrae, diverticulitis and post-traumatic stress disorder, as well as what he termed ‘a small erectile dysfunction.’
After detailing his illnesses, Lepp returned to the question of whether he planted or harvested marijuana. “No,” he stated, “but I did feel responsible for all of the plants, as a leader of the church.”
Hinckley continued with his queries. “Did you ever direct anyone to grow marijuana?”
“No,” the defendant said simply.
“Did you ever induce anyone to grow marijuana?” Hinckley asked.
Once again, Lepp answered that he had made his field available to church members. “I was proud to have them use it,” he said, his voice strong. “My wife Linda had a very fierce commitment to patients and it was her dream that we have a garden that fulfilled Proposition 215 – safe and affordable access for patients.”
Signs at the entrance to Eddys' Medicinal Gardens & Chapel. Photo by Vanessa Nelson.
At that, the direct examination concluded, and Hall stepped up to begin the cross. The prosecutor chose to start his questioning on the topic of Lepp’s activism, calling him a “worldwide activist for the legalization of marijuana” and asking him when his fight had begun. Lepp explained that he had grown marijuana in 1994 and 1995 because of his wife’s illness. After that, the tone of the exchange between prosecutor and defendant got a bit touchy.
“But in 1994, you weren’t a worldwide activist,” Hall said, scoffing enough for the comment to adopt the tones of a question.
“No,” Lepp said, a sneer in his voice. “I was a little baby activist.”
Hall kept it up. “You weren’t on the internet. No films were being made about you.” The prosecutor put forth his theory, “Isn’t it fair to say that the arrest in 1997 is what propelled you?”
To Lepp, it certainly wasn’t fair. “No,” he said with passion. “My wife propelled me.” Then, he acknowledged, “But, the arrest got my name out there. People got my number and started calling me.” And that, Lepp eventually agreed, was the start of his celebrity and when the spotlight started shining on him.
Hall’s rhetoric had come across like envy during its build up, but suddenly his motivations were clear. “Isn’t it true that you wanted to push the boundaries of what you could do with marijuana?”
“What I wanted was my rights under the law and the Constitution,” Lepp fired back. “That’s all I asked for.”
“But you did push,” Hall said, the zeal in his voice still rising. “Isn’t it true that you beat it in ’97 and decided to get bigger?”
When the defendant flatly denied this, Hall brought up a 2002 raid on Lepp’s property. The plant count for this raid was more than twice that of the 1997 bust, and even though five people were arrested, no charges were ever filed. It did, however, leave Lepp with a mess of “ammo and beer cans” that the agents had discarded.
Lepp was doing a good job of remaining steady so far, surfing the waves that came at him. Undeterred, Hall continued building his argument and boldly suggested that being Rasta was a plan the defendant had devised just to help him grow more marijuana. Lepp simply denied this accusation.
“Did you go to priest school or seminary to learn about marijuana?” the prosecutor asked with a flourish in his tone.
Lepp wasn’t the only one in the courtroom who looked confused. “To learn about marijuana?” he asked back.
“Did I say marijuana?” Hall murmured, looking blank for a split-second. “I meant, Rastafarianism.”
After the giggles in the courtroom died down, Lepp readily divulged that he hadn’t gone to school to become a minister. To clarify, Hall suggested, Lepp had merely sent in some money to the Universal Life Church. It was a characterization the defendant accepted, although he did mention that he was a minister at two other churches as well. The prosecutor didn’t follow up – he was ready to move on to another topic.
Hall was particularly interested in the conversation in which Lepp made the joke to law enforcement that he had planted the whole field himself in 2004. “Do you recall that you said the fields were yours – it was all yours?”
“I don’t recall that at all, Dave,” Lepp said, getting verbally informal with his prosecutor. “I recall saying I felt responsible, and I explained the volunteer arrangement.”
“How were the officers supposed to know you were joking?” Hall queried.
“I don’t know if they knew I was joking,” Lepp replied. “I don’t know what’s in another man’s mind.” Still, he was moved to argue that it would be completely unreasonable for the officers to believe that he had been serious. “It was twenty-five acres. How could I have planted it myself? I was standing there in my house slippers. I can’t even lift ten pounds. They know everything about me.”
The addition of ‘Dave’ to the end of Lepp’s mesmeric sentences had begun to inspire references to the robot HAL in Stanley Kubrick’s 2001: A Space Odyssey. The comparison was not without merit. But the real question was not whether the two voices had similar sounds. It was whether, like HAL, Lepp’s tone of reasonable calm belied the panic of impending destruction.
Oddly enough, Hall went high-tech with his next maneuver and had videos from the defendant’s MySpace site introduced into evidence. Lepp didn’t appear to take the move very seriously, saying that he wasn’t directly responsible for what was on any of his websites. He couldn’t even turn it on, he said, and also noted, “There are places out there that use my name that I have nothing to do with.”
As Hall soon disclosed, however, the evidence didn’t hinge on whether Lepp was tech-savvy or not. The website was simply the medium through which Hall had obtained two speeches made by Lepp, both recorded in the spring of 2004. The first, a clip from Tears to Trichomes, showed the defendant standing in his field at the beginning of planting season. Right before Hall played it for the jury, he asked Lepp one more time about his level of involvement with the cultivation, emphasizing that one of the videos quoted him as saying that he planted 25,000 plants in his field.
“I feel responsible, but I did not physically plant them, nor direct and instruct anyone to,” Lepp maintained, echoing his previous assertions. “I’m proud of it, but I didn’t crawl around on my hands and knees.”
At that point, Hall was ready to let the recordings speak for themselves. The courtroom’s video monitors flickered, and after the clerk got the ones in the jury box fixed, all eyes were on Lepp as depicted outside on his land during a lovely spring day. The government played the following portion of his monologue:
“In this back field here, I think we’re going to end up with about eight or nine thousand plants. Maybe ten, I don’t know. Then over in the other field, we’ll just start planting next week and we’ll just keep planting until it’s too late to plant. So, we may theoretically end up with as many as fifteen thousand, twenty thousand plants, which is really a good thing because I feel that once the word gets out as to what we’re doing and people become aware of it – we do things like this, it causes people to notice – hopefully, they’ll realize that by me being able to do it, that it can be done by others. And, consequently, hopefully things will grow from this…and I don’t mean just the plants – I mean the dreams. I just figure that if you give people an opportunity to rise up, that, as a rule, they will. It doesn’t mean they always do, but it does mean that sometimes you can instill in them the desire to rise up, and that really is what this is all about. It’s about revolution. It’s about changing the world…and I don’t mean with guns and sticks – I mean with philosophical outlook.”
Stopping the video there, Hall questioned the defendant on his comment about revolution. Was he asking everyone to rise up, not just members of his church? Lepp gave the prosecutor a look of compassion, benevolently explaining, “You don’t have to be Rasta to want the world to be a better place. That’s what it’s all about.”
Hall had no response to that statement, except to indicate that he was showing the second video. But when he walked away from the player, something unusual happened. Instead of the anticipated speech, music blared out loud over the speakers. And it wasn’t just any music – it was the beginning of a song called Free Eddy Lepp, and two full lines of precisely those lyrics flooded the courtroom before Hall and his assistant pounced on the player to hit stop. It was too late, of course – the suggestion had already been planted – but at least the prosecutor got a valuable lesson in the potential pitfalls of gleaning evidence from a MySpace site. Explaining that he had meant to play a different video, he started up the intended one.
This second selection showed Lepp and a microphone in an extreme close-up as he delivered a speech. However, much less of this video was offered, and this was essentially all the government presented: “I will finish by telling you a little story that I often get asked to tell, and I don’t mind telling at all. It’s about how I got to be who I am and how I got to where I had the courage to plant twenty thousand plants in the middle of northern California, with Highway 20 literally cutting my farm in half.”
Once he shut the recording off, Hall predictably took back the floor and re-read the quote from the speech. “‘How I got to be who I am and how I got to where I had the courage to plant twenty thousand plants…’” Approaching the witness stand, he asked, “Is that what you said? I?”
Lepp was abundantly polite and accommodating. “Yes, sir, you’re right,” he replied serenely. “I did.”
The defendant was holding up well, staying clear-headed and focused in spite of the dizzying semantic circles. It seemed that he had been through all the expected questions on the admissible evidence, but then he got thrown a curveball. During a jury break, Hall requested that he be permitted to question Lepp about a rather bumbling sales sting.
The sting was put into motion not long after the 2004 bust, and it evolved into a bumbling operation. As the story goes, a professional informant decided to use Lepp for his next gig, cooking up a scheme with federal agents to hook him on a charge of selling a pound of marijuana to someone who didn’t mention religious or medical use. What was mentioned, however, was that the informant had photographs that could help Lepp prove that there was government misconduct in his case and therefore help him beat the charges on his 2004 bust. The catch was that the guy with the photos was requesting that the defendant supply him with a pound of marijuana. In the interaction that followed, Lepp extracted himself considerably, and even though a pound of marijuana eventually made it into the hands of an undercover agent, Lepp had much less to do with the transaction than the Drug Enforcement Administration had intended.
Beyond the failings in the script, the sting had bigger structural problems. During an evidentiary hearing earlier this year, defense attorneys made a showing that Lepp’s 6th Amendment rights were violated because the undercover agent for the sting engaged him regarding his open case. In ruling on the matter, Judge Patel ordered that the count related to the sting be severed and that the subject be inadmissible for questioning during the trial on the 2004 charges. That could change, she warned, if the defendant opened the door by saying something on the stand that clearly contradicted the evidence from the sting operation. And, according to the prosecutor and the judge, Lepp had done just that.
The offending testimony was when he said that the marijuana on his property was for medicinal and religious use. “The clear inference is that’s the only thing it’s being used for,” Hall reasoned, concluding that this contradicts evidence from the sting.
Judge Patel easily agreed, quipping, “When one doth protest, then one has to be prepared to respond to what one is protesting.” In more simple terms, she clarified, “He opened the door. I’m allowing it.”
When the jury was once again assembled and attentive, Hall went forward with the new subject matter. “Among your uses of marijuana is the sale of marijuana, isn’t that right?” he posed.
Eddy Lepp takes a break from the trial. Photo by Vanessa Nelson.
Lepp began to explain, disputing the characterization, but the government pounced anyway. Hall asked the defendant plainly about his involvement with the sale of a pound of marijuana to an undercover officer, and this time, Lepp objected even more vigorously to the language. “Alleged sale,” he insisted. “I didn’t sell anything until it’s proven that I did.”
Judge Patel found Lepp to be unresponsive. “Answer the question,” she instructed from her bench.
“Then don’t say I was selling,” Lepp said, the intensity of his mannerisms heightening.
Hall did change his language at this point, rephrasing the accusation from saying Lepp had ‘sold a pound of marijuana’ to saying Lepp ‘met a man and gave him a pound of marijuana for which he would receive $2500.’ The linguistic tweaks did little to satisfy the defendant. If the jurors were going to have to hear about this, he would make sure that he told them his side.
Lepp acknowledged that he had met a man who was looking to get a pound of marijuana from him, but revealed that it wasn’t just any man. “I met a man who said he had evidence of government misconduct that could free me in my case. But I didn’t have anything to give him – the DEA took it all. I said I would introduce him to someone who could help him out, and in return I might get some marijuana for my dying wife.”
The prosecutor acted as though it was as good as a straight confession. “So you agreed to sell him a pound of marijuana?”
“I did not agree to sell him anything, Dave,” Lepp insisted.
Hall next tried to establish that no medical or religious reason was given for the sale of the pound, but the defendant was quick to the draw. “I do remember the three-time convicted meth felon you sent into my house, and that he said he had a medical marijuana card,” Lepp shot back.
It wasn’t enough for Judge Patel, who ruled his answer irrelevant and pressed him to be more direct. In response, Lepp admitted to discussing the general prices of marijuana, but denied making a deal. He was adamant that he never got any money from anyone, never gave a pound to anyone, and never got a pound from anyone.
“Did you direct a pound?” Hall asked.
“I had no marijuana, sir,” Lepp replied.
The prosecutor was dogged. “Did you?”
“No!” Lepp said emphatically. “The DEA got every bit, every pinch. They went through my house with a vacuum cleaner.”
His words had gotten more heated, and coming from the deep, dark caverns of Lepp’s voice, you never knew what you were going to get.
“Isn’t it true that part of your activism is fighting your case?” Hall queried.
“I am fighting this case because I am wrongly and unjustly accused of a crime I didn’t commit,” Lepp delivered the declaration strong and level.
The prosecutor fired back quickly. He and Lepp were now sparring with competing levels of intensity, but at times it seemed that they weren’t involved in the same conversation. “Isn’t it true that you have asked this court to give you a defense of medical marijuana and religious marijuana, both of which were denied by this court, and now you’re using the only defense left for you – it wasn’t me?” It seemed ridiculous to imagine any defendant answering this question in the affirmative.
Lepp didn’t waste his time with a direct reply. Instead, he declared, “What I’ve tried to do is get the truth of it out in front of the jury so that they could make an informed decision.”
With some dissatisfaction, Hall referenced a letter Lepp had described earlier in his testimony. It was the one declaring his marijuana cultivation, which he testified to sending annually to a wide range of elected officials for years. “But you didn’t tell them you were going to grow 25,000 plants, did you?” the prosecutor blasted at Lepp.
“I tell them I’m gonna drive, but I don’t tell them I’m gonna drive 70,” was the defendant’s pert response. When Hall compelled more from him, Lepp adopted a tone of incredulity. “My God, I had Highway 20 running through the middle of it! I wasn’t trying to hide it!”
Spectators got a break from the antagonism when Lepp was finally handed back to his attorney for re-direct. Immediately, Hinckley asked permission to show the government’s second MySpace video selection in its entirety, saying that it ought to be viewed “in context.” His request was granted, and soon the courtroom was watching a re-run of Lepp delivering his statement about the courage to plant twenty thousand marijuana plants. But then he continued, going on to say so much more:
“I will finish by telling you a little story that I often get asked to tell, and I don’t mind telling at all. It’s about how I got to be who I am and how I got to where I had the courage to plant twenty thousand plants in the middle of northern California, with Highway 20 literally cutting my farm in half. About thirty years ago, I went to this little country in southeast Asia, and it kinda fucked up my head for a while. And after about twenty years of being strung out on every substance known to man, I had a moment of clarity and I got sober. And during this time, I met and fell in love with a very lovely woman who still to this day is still my wife, and I set off on a quest of rediscovering who the man in me really was, the man who had been formed prior to Vietnam. And as I headed down this road of discovery, my wife came down with thyroid cancer, and they went in and cut her throat from ear to ear and took out half her thyroid. And I went out and planted a 132-plant garden because, being on a fixed income I knew that we didn’t have the money to buy what she would need to survive. Her weight had gone from about ninety pounds to – well, she hates this part of it – but over two hundred, and back down to eighty-some pounds in a fourteen-month period. And I went out and I put in this garden, and one day, I was under this big pine tree taking my sacrament and I asked the Most High if he would give her strength. I didn’t ask for any miracles or special favors, just that he would give her strength and help her, and he did. Three months later, they cut her open from ear to ear again, and took out the other half of her thyroid, and to this day so far, it’s in full remission and it hasn’t come back. However, it was around this time that I got arrested and we fought two years of legal battles before I was acquitted, and during that two years, because I was in the newspaper so much, my phone started ringing all the time and people wanted to know about Proposition 215, where they could find doctors, where they could find lawyers, and a bunch of questions I didn’t have the answers to. I had known Dennis Peron for several years at that time, and Dennis helped me. I met lovely men like Mr. McPike, Ryan, Jack and many others that have helped me. And we were able to put together an information network. My wife and I, like I said earlier, we had clinics in our home as an official site for the Million Marijuana March, or the May Day J-Day, every year for five years, where we helped over four thousand patients get their recommendations. And through the course of all of this, we started growing for patients. It started off originally for four patients, then went to twelve, and then to seventy. Now, it’s several thousand. And it just keeps getting bigger and bigger. High Times is doing another feature article on us, I believe, this week when I go home, and we have an internet site, eddysmedicinalgardens.com, where you can get quite a bit of information. There’s a lot of links there to help you to a lot of other sites that will give you tons of information. I’d like to thank you for having me here. (Applause and excited shouting in background.) And I would like you all to, please, get off your ass, get involved. Your vote does count. Thank you. (More applause and cheering.)”
As soon as the video ended, Hinckley turned to his client and asked what turned out to be the million-dollar question. “When you talk about the courage to plant twenty thousand plants, what does that mean?”
Lepp was quiet for a second, and when he spoke, his words came out fast, fiercely passionate, and tearful. “I was Mick Jagger. She was Keith Richards. Nobody knew she was there. She spent the first eleven years of her life in a body cast –”
The court reporter stopped the defendant there – she was having trouble hearing and keeping up with his speech. As expected, the break disrupted Lepp’s cadence and flow, but he picked back up again quickly. “She learned to walk when she was thirteen. She got the woman cancer when she was twenty-three, and they pumped her so full of radiation that her intestines collapsed. When I made love to her, she would shit the bed – not just once, but for twenty years.” Lepp went on to describe how he would always clean the bed so that his wife didn’t have to handle the accidents, and the jury looked appropriately stricken by the description of this situation.
“She stood by me and begged me not to let people suffer the way she did,” Lepp explained before he hit the stride in his monologue. “Did we plant the field, Dave? Yes we did, and we were damn proud of it!”
Lepp finished, bringing his answer back to the question. “My wife Linda was in charge of the field… That’s the courage. That’s the strength. It always was.”
There was little to be said after that…and fittingly so. Hinckley established on re-direct that Rasta ministers are not trained in seminaries, and actually not even called ‘ministers,’ for the most part. Lepp got a few more opportunities to comment that he should have been protected under RFRA. But, essentially, nothing could really be said after the defendant’s dramatic address. It was a showstopper, delivered with the emotion and command seldom seen in real life courtrooms. More accurately, since it fit the popular expectation of what happens during a trial, it could be called a hyperreal experience. Growing up in a culture with a ready abundance of theatrical court dramas, it is the real courtroom (the one that isn’t a hotbed of Oscar moments) that feels strange to people who lack litigation experience.
The real question, though, goes a step ahead in its speculation. How much will these things mean to the jurors? Comparatively speaking, Lepp’s jury has been far less sheltered than the juries for most other medical marijuana defendants in federal court. Judge Patel has been notably permissive about the speech allowed in her courtroom, and the freedom certainly hasn’t been limited to mentions of the medical uses of marijuana. By and large, Lepp’s hope of ‘getting the truth out in front of the jury so that they could make an informed decision’ is very close to fulfillment. It appears that the jurors have heard most everything relating to his case, in some form or another – they have listened to him speak his mind about sacramental marijuana, watched him counter the accusations from the sales sting with his own side of the story, and even heard some of his thoughts on revolution. In the end, however, it is still a rare jury that takes conscience into account when reaching its verdicts. No matter what they have heard said on the witness stand, Lepp’s jurors will feel tightly restricted as soon as they hear the judge’s instructions for deliberation. And that will be the moment of fate in this trial.
Eddy Lepp’s trial took the day off on Friday, August 29th, due to festivities surrounding the prosecutor’s college football team reunion. (“We went to a bowl game,” David Hall told the judge with emphasis, conveying the magnitude of his plea for the vacation.) The trial resumes at 8:30am on September 2nd, 2008, in the courtroom of Judge Marilyn Patel, on the 18th Floor of 450 Golden Gate Avenue in San Francisco, CA. Rebuttal witnesses and closing statements are expected to be heard on this day.
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