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Sunday, 12 August 2007 18:00 |
Central to the story of Mollie Fry and Dale Schafer is the claim of entrapment by local police officers. According to the defendants, they were visited at their home many times by officers who observed their plants and assured them that their cultivation was legal. These visits lulled Fry and Schafer into a false sense of security, just as the deceptively friendly officers were cooperating with a federal investigation of the couple.
Robert “Bobby” Ashworth of the El Dorado Sheriff’s Department was vital to this operation, and when the unassuming sergeant took the stand to testify, observers saw a hollow-looking man. Ashworth looked as bland as the gray suit he was wearing, his dark hair starting to fade to white and his solemn face punctuated only by small round eyes. He answered questions with calm disengagement, as though speaking from a distance, but when the prosecutor played an audio tape of his undercover phone calls to Fry and Schafer’s office, the courtroom heard a whole different personality from Ashworth. The seemingly reserved man became suddenly upbeat and gregarious on tape, a transformation that finally gave some insight into how the defendants could be so easily fooled by his confident assurances.
 Sergeant Bobby Ashworth - sketch by Dr. Care
The receptionist was clearly in a rush, but Ashworth wanted one more thing, and it was hard to deny such a charming fellow. Daniels politely answered his question about prices, telling him that clones would be sold for $5 apiece. The short conversation concluded with Ashworth’s jovial gratitude and a pleasant goodbye from Daniels, and that was the end of the undercover phone recording.
The courtroom then turned its attention back to the sergeant himself, and the difference between live and Memorex couldn’t have been more striking. During his direct examination with Assistant U.S. Attorney Anne Pings, Ashworth seemed dreary and dull. It was a night-and-day contrast with what was heard on the tape.
The sergeant testified to visiting the defendants’ home on two occasions, along with his partner, Detective McNulty. Ashworth described being shown around the property by a groundskeeper on July 25th, 1999, at which time he observed 21 marijuana plants growing. An additional visit was made on August 17th, 2000, when he reportedly saw 43 marijuana plants and was escorted through the grounds by one of the defendants. Under questioning, Ashworth maintained that he was not shown the bunker, the garage grow room or the drying room during these visits.
At some point that was not crisp in the sergeant’s memory, he began cooperating with the federal investigation of the defendants. It was clear, however, that he got to participate in flyover surveillance of the property on September 26th, 2001, and he remembered that experience distinctly. After all, it must have been a lot more fun for Ashworth to be flying around in a plane and taking aerial photographs than to act in the capacity of a sergeant. As a local cop, all he got to do was trod around to take a gander at a couple dozen plants before meekly leaving. Of course, the aerial photos didn’t show much other than the top of the house and garage, and an undefined view of a fenced-in garden area. Still, Ashworth was involved in something bigger when he joined up with the feds, and he followed it through to the raid itself.
Pings began her questioning on a shaky foot. “On September 28th, 2000, did you participate with the DEA in the execution of a search warrant at [the defendants’ home] in Greenwood, California?”
“Yes,” Ashworth said confidently.
“Oops – I meant September 28th, 2001,” Pings corrected herself.
“Yes,” the sergeant replied again, his answer unchanged.
Ashworth then verified that he was in charge of outdoor seizures during this operation, and he detailed the marijuana plants that were found in each location. His testimony on each seizure was guided and complemented by photos Pings displayed on the courtroom projector. First, the sergeant described to the jury seizing two marijuana plants from the greenhouse, which had been irrigated with hoses that drew from a nearby creek. According to Ashworth, both of these plants were approximately nine feet tall.
On the hill, where the fenced-in garden area was located, the sergeant reported finding a total of ten plants. All of them, he said, were flowering. Of these, seven were in the ground, measuring about six feet high, and another three smaller plants were contained in pots.
Several members of the audience, most notably Sacramento Bee reporter Denny Walsh, had been lulled to sleep by the soft tones of the witness’s voice and the low lighting necessary for the projected photographs. Walsh’s comically loud snoring made an impressive play on the acoustics of the courtroom, and at its height seemed to create a surround sound phenomenon. Judge Damrell appeared mystified by the noise, twice looking up and around the room at all sides to determine its source. But in spite of Walsh’s snorts and sputtering, the curious judge never solved the mystery. While embarking on her next question, Pings delivered a sudden, explosive sneeze directly into the microphone, and the jarring burst of sound rocked the courtroom to full alertness. Alternating apologies with helpless giggles, the prosecutor finally managed to move on to her intended inquiries, and when she did, she had the full attention of everyone in attendance. It was, however, just more documentation of the search operation at the defendants’ home.
The final seizures took place behind the trailer where handyman Michael Harvey formerly lived. There, Ashworth claimed, agents found 22 marijuana plants measuring between one and three feet in height, all contained in buckets. These plants were rooted, according to the sergeant, who proudly pointed out a photo that displayed 22 small plants lying on their sides with their rootballs all exposed in unison. After making these seizures, Ashworth testified, he met with DEA Special Agent Brian Keefe so that he could take samples of the plants for lab testing. The final photo displayed during direct examination was a pick-up truck whose bed appeared to be loaded with marijuana, ready to be driven over to Keefe.
Defense attorney Tony Serra began his cross-examination by asking the sergeant about the genesis of his relationship with the defendants. Ashworth described making his first visit to the Greenwood residence in response to a phone call Mollie Fry made to the sheriff’s office in 1999. According to the witness, Fry had been “calling to tell us she was growing marijuana.” Serra, quite predictably, asked Ashworth if he knew at that time that the defendants had doctors’ recommendations for marijuana. The sergeant replied in the negative, and the defense attorney asked if he ever became aware that the defendants had recommendations. A quick objection from Pings killed the line of questioning before Ashworth could respond.
When Serra asked if Ashworth had been cross-deputized as a federal agent prior to Mollie’s phone call in 1999, Pings made another objection and halted the questioning again. The prosecutor wanted to discuss the issue at a sidebar, but she couldn’t lure Serra over to the judge’s bench this time. Instead, the defense attorney voluntarily abandoned the subject, saying he would rather forfeit the question than spend ten minutes at sidebar only to be denied. “It’s not worth it to me,” he said simply, and proceeded instead to establish the extent of the witness’s encounters with the defendant.
Ashworth had, according to his testimony, visited with the defendants at their home, been to their office, and spoken to them on the phone, all on multiple occasions. He agreed that the visits had been friendly and cordial, but disagreed when Serra described the defendants’ attitude as “candid, open, honest and unguarded.” Nonetheless, he had gotten friendly enough with the defendants that he still referred to them as “Dale and Mollie,” and had to be reminded on the stand to call them “Mr. Schafer and Dr. Fry.” But calling them by their first names was such an ingrained habit that Ashworth ended up slipping multiple times during his testimony.
In return, Serra confirmed, the defendants often addressed Ashworth casually, referring to him as “Bobby.” Ashworth claimed that he did not make the visits in an undercover capacity – though he was casually dressed in jeans and a t-shirt when he came to the Fry/Schafer home, he insisted that he represented himself as a law enforcement officer. By contrast, Ashworth did consider himself to be acting in an undercover role when he made the recorded phone call to talk about the grow seminar. When Serra asked what misrepresentations were made during that call, Ashworth shrugged and resorted to the hypothetical. “If I was asked for a name, I would have given a false one,” he speculated.
Serra focused on the point that Ashworth did not make it known during the call that the conversation was being recorded. At the same time, the defense attorney emphasized the fact that law enforcement officers are permitted to perform such acts of deception. When Serra asked Ashworth if he knew the penalties private citizens would face if they performed similar actions, an objection from Pings cut him short. Serra surrendered the subject without hesitation, moving on instead to a more important question: when the word “certificate” was used during the recorded conversation, did that refer to a recommendation for medical marijuana issued by a licensed physician? Ashworth admitted that it did.
An official tally was taken of all the marijuana plants observed during each visit to the home, but Ashworth couldn’t remember whether he had done the plant count or whether it was done by his partner, Detective McNulty. This was Ashworth’s excuse for not being able to independently recollect how many plants were observed in the greenhouse and how many were observed in the vegetable garden. He also could not recall whether it was him or McNulty who went into the greenhouse, and although he admitted to seeing dwarf citrus trees inside that structure, he could not estimate what percentage of the space they took up. Serra’s questioning about the greenhouse appeared to be going nowhere, but the defense attorney had a trick up his sleeve. If Ashworth saw the greenhouse, he would have seen the medical use documentation that hung at its entrance, and Serra was determined to get this tidbit across to the jury.
 Sacramento Bee reporter Denny Walsh - sketch by Dr. Care
Judge Damrell accepted the sidebar, and it appeared to go favorably for the defense. Directly afterwards, one of the prosecutor’s assistants was instructed to help Serra with the enlargement task, and the pair finally got the desired section of the picture selected. But the demonstration was a disappointment – blown up to the size of the projection screen, the image of the signs by the door of the greenhouse had blurred out hopelessly. At this point, Pings again announced to Judge Damrell that she objected to the content. Another, more lengthy sidebar followed, after which Serra dropped the subject and continued the cross-examination with other questions.
The defense attorney established that Ashworth did not recall the size of the plants he observed during his visits to the defendants’ home in 1999 and 2000, and that no measurements had been taken of those plants. Serra then began to ask another question about Ashworth’s knowledge during those visits, “Were you advised that the defendants were caregivers for—”
Pings chimed in, her voice full of outrage and urgency. “Objection, your honor!”
“I was just going to say, ‘approximately 40 people,’” Serra said to Judge Damrell, slipping in the rest of his question as a barely-disguised explanation. This tactic did not impress the judge, who firmly sustained the objection and then instructed the jury to disregard the question altogether.
Next, Serra moved on to address the search operation on September 28th, 2001. Ashworth testified that at least ten officers participated, both male and female, and that Pings herself was also present. The prosecutor shifted her weight as she listened intently to the questioning, ready to jump to her feet for an objection. It was an action she could manage in a split-second, since she seemed to never fully sit down during the cross-examination. Instead, she appeared to hover expectantly over her chair while Serra spoke, perpetually prepared to make an objection. This time, however, the defense attorney’s questioning departed from the usual sly theatrics and swerved into bizarre and irresistible humor.
While discussing the two 9-foot tall plants agents reportedly found in the greenhouse, Serra drove home the point that, no matter what their height, these were only two plants and legally counted as such. He also established that, during the seizure, Ashworth did not check any of the plants for signs of infestation. The sergeant readily admitted that he did not use microscopic or other means to examine the leaves, stalks, or stems. As Serra suggested, the witness had instead been fixated on another part of the plant.
“Based on your photos, you were intrigued by rootballs,” the defense attorney observed.
Ashworth was hesitant, unable to detect the motive for the questioning. “That’s how you tell if it’s a plant,” he said cautiously.
“On a clone, maybe…but on a 9-foot plant you know very well it has roots,” Serra told the witness.
Ashworth was caught off guard, and managed only to convey a vague affirmation. But if he thought this answer would satisfy Serra on this topic, he was quite mistaken. The defense attorney had much more to say on the subject of rootballs, confusing Ashworth even further. “You’ve probably never had rootball soup, have you?”
“No,” the sergeant replied, uttering the word slowly.
“So your fascination does not extend to that menu item?” Serra continued.
“No,” Ashworth appeared conflicted here, as if unsure whether his answer validated the idea that he did indeed have a rootball fetish.
“Well, if you have asthma, it will help you,” Serra inserted the comment glibly, bringing Pings to her feet once again.
Responding to the prosecutor’s objection, Judge Damrell looked squarely down at the defense attorney. “Counsel, don’t give medical advice,” he cautioned.
Serra threw up his hands in an apologetic gesture, surrendering the subject of rootballs. Instead, he began ridiculing the size of the police operation that was used to seize a mere three dozen plants from the defendants on September 28th, 2001. “Here we have twelve grown up police officers raiding the big marijuana garden, and ‘oh boy, we’ve got 36 plants—’”
Pings issued another objection, appearing increasingly exasperated. “Your honor, this is badgering,” she claimed.
“I wonder if that’s what my kids thought all these years,” Serra mused with an impish smile. He then turned back to Ashworth and asked if the raid had been an “insulting, disappointing waste of resources.” After the witness replied in the negative, Serra gave the floor to defense attorney Laurence Lichter.
Though Lichter’s cross-examination was relatively short, it was not without its many points of controversy. It appeared that the defense attorney’s primary interest was trying to reveal when and how Ashworth had presented his reports on the defendants to federal investigators. Lichter eventually got Ashworth to reveal that feds had approached him to gain information on Fry and Schafer in 2001, and that the first contact had occurred in relation to an investigation about “marijuana sent through the mail.” Ashworth also denied that he was formally deputized as a DEA agent, but all of these admissions were hard-won. The cross-examination inspired ten objections from Pings in a span of less than five minutes of testimony.
“Did you ever take the information to prosecutors and see if there were grounds for charges?” Lichter asked.
Pings objected, claiming that the defense attorney was making an improper inquiry about state prosecutions. “I was talking about all prosecutors,” Lichter insisted. “She’s objecting to half the question.”
This comment made fertile ground for puns, given the fact that a medical condition had been impeding Lichter’s speech and causing him to repeatedly excuse himself by saying, “I’m sorry your honor, but I can only talk with half a mouth.”
But Pings saw no humor in Lichter’s response, and insisted on the objection. “There’s a door opening here.”
After a sidebar, Lichter refined his questioning, asking if Ashworth had taken information to federal prosecutors. He responded that he had done so, and the defense attorney began a series of guesses about when this collaboration began. Finally, the sergeant revealed that he started sharing information with federal agents about a year and a half after meeting Fry and Schafer, which gave him the opportunity to observe two grow cycles at the defendants’ home.
 Tony Serra and Laurence Lichter - photo by Vanessa Nelson
“Pretty much,” was Ashworth’s casual response.
Lichter then mentioned phone calls that were made between Schafer and Ashworth at this time. “And you had many conversations with Mr. Schafer – you were told many times that he was keeping his wife out of this because she was just a doctor?”
“Objection, your honor!” Pings broke in. “This is self-serving hearsay.”
The judge agreed, forcing Lichter to try another issue. “Did you suggest to them that they were endangering life and liberty by breaking federal law?”
Pings was suddenly standing again. “Objection! Relevance, your honor. This goes to the court’s ruling.”
Lichter tried to explain to the judge that he was asking about federal law, when the ruling the prosecutor referenced was against mentioning state law. Judge Damrell didn’t accept the defense’s rationale, and Lichter tried a different question…only to be met with the very same consequences.
“Are you familiar with the concept of entrapment—” he began, eliciting a familiar response from Pings.
“Objection, your honor!” the prosecutor interrupted, looking at the judge for support. Her voice conveyed a sense of disbelief, as though she couldn’t quite reconcile her expectations with the reality of the questions she was hearing.
Judge Damrell also appeared incredulous, astounded that the defense attorney would go so far. “I’ve ruled on that,” he said, echoing his previous warnings.
But Lichter just ruffled the judge’s feathers even more. “I’m not sure you did, your honor,” he said. It was calm, polite defiance, but it was defiance nonetheless. The defense attorney was suddenly doing more than questioning the witness – he was questioning authority, and the judge was overtly displeased.
“Oh yes I did!” Judge Damrell boomed down at Lichter. “I did. Go back and read your notes, and you’ll see I did!”
Lichter turned back to the witness, but only got out nine words before he was stopped again, “Did you seek out the DEA or federal prosecutors—”
Pings objected, but Lichter successfully argued that his question was relevant. “It’s about motive,” he stressed. Permitted this time, he asked his question in full. “Did you seek them out to get Dr. Fry and Mr. Schafer in trouble?”
“No, sir,” Ashworth denied the characterization with emphasis. He made more definitive denials when asked if he had been formally cross-designated as a DEA agent, and also in response to a suggestion that he had initiated the contact with the federal government about this case. After accepting all of these responses, Lichter once again started inquiring about the conversations between Ashworth and the defendants.
“Did you and Mr. Schafer discuss ways physical safety could be ensured for people growing marijuana?” the defense attorney probed.
“Objection, your honor,” Pings said, cutting in. “The answer calls for self-serving hearsay.”
“Did you suggest he grow indoors?” Lichter ventured, asking the witness about his conversations with Schafer.
“Objection,” Pings said, her eyes widening with exasperation. “Relevance, your honor.”
The judge’s patience had long been waning as well, but he continued to endure the near-constant stream of objections. “Sustained,” he announced. “It’s not relevant.”
Lichter wrapped up his questioning rather abruptly, handing the witness back to Pings. On redirect, the prosecutor had just a couple points to cover with the sergeant.
“Did you have a role in whether there was a prosecution or not?” Pings asked, only to be met by a quick objection from the defense.
“It’s beyond the scope,” Serra declared. “It’s not in evidence.”
Lichter also chimed in, challenging the relevance of the inquiry and its answer.
Pings blamed the defense attorneys, indicating they had opened the door with their own questions on the subject. “They asked about it,” she said of Serra and Lichter.
A sidebar conference ensued, after which Pings returned and rephrased her question just a touch. “Did you have any role in decision-making about whether the defendants would be arrested or not?”
 Dale Schafer and Mollie Fry - photo by Vanessa Nelson
It was an odd soliloquy, especially given his previous testimony that he had acted in an undercover capacity for part of the investigation in this case. Nevertheless, Pings accepted the speech and confidently continued her redirect. After an over-ruled objection from the defense, the prosecutor once again extracted testimony from Ashworth that he was never shown the bunker, the garage, or the drying room during his pre-raid visits to the property.
“That’s all,” she said. “No further questions.”
Ashworth was then dismissed from the witness stand and made his way across the courtroom to the exit. Many El Dorado County residents had seated themselves in the gallery to watch, and their eyes had been on the witness unceasingly during his testimony. This scrutiny continued up until the moment of his exit, ending only when the court’s double doors shut fully behind Sergeant Bobby Ashworth.
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Last Updated on Friday, 05 September 2008 01:40 |
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