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Saturday, 11 August 2007 19:00 |
After three days of watching the questioning of Paul Maggy, court observers in the Fry/Schafer trial were ready for something different. What they got, however, was another witness whose testimony spanned multiple days in a prolonged effort to incriminate the defendants in every way permitted…and even some that weren’t permitted. But the revelations of this next witness lacked much of the clarity and consistency of his predecessor, pushing the rhetoric to the brink of humor and to the boundaries of tolerance.
Even before cross-examination began, Mike Harvey had already shown himself to be utterly unreliable in his testimony. And by the end of his two-day stretch on the stand, it was doubtful that he added anything to the case but headaches, tense laughter, and agonized confusion.
Harvey presented as a gaunt, dark-haired man of middle age, and had a decidedly haggard look about him. He appeared to have attempted to clean himself up, but his dress shirt was wrinkled and hung awkwardly loose on his frame. His movements betrayed discomfort, not the least of which was shown in his constant fidgeting.
Perhaps to explain this conspicuous nervousness, prosecutor Anne Pings started out the direct questioning of Harvey by establishing that he didn’t want to be there on the stand. She proceeded with attempts to reduce his anxiety, explaining that immunity had been granted for his testimony. In spite of her efforts, Pings didn’t get very far at putting her witness at ease, so she turned instead to testimony about the background of his involvement with the case.
Harvey’s story started out in the army, where he worked at a missile site. He was honorably discharged from service twice, and went on to a foundry in Ohio as well as to landscaping work. Ultimately, he was introduced to Mollie Fry and Dale Schafer through his niece, who was an employee of the defendants. When he first arrived at the Fry/Schafer home, he lived inside the house with the family, but eventually he moved into a trailer that sat on their property. He worked for the defendants while living with them, doing handyman tasks, feeding the animals, driving the children around to their extra-curricular activities, and helping to grow marijuana.
Once she got to the subject, Pings had plenty of questions about marijuana. According to Harvey, he didn’t use marijuana when he arrived at the Fry/Schafer home, but began smoking it within three weeks of moving in. He said he saw both defendants smoke marijuana daily, and that both defendants asked him to do tasks related to marijuana cultivation. He started out with twenty plants grown from seed within his own living quarters, then later transferred these to the greenhouse on the Fry/Schafer property.
In spite of the tone of his rhetoric, it came out during cross-examination that Harvey was much more familiar with marijuana than he initially suggested on the stand. By saying that he didn’t use marijuana when he arrived at the defendants’ home, Harvey was referring only to a short period of abstinence. The statement was phrased in such a way, however, that it could easily be interpreted as meaning that Harvey did not initiate marijuana use until he came to live with Fry and Schafer. Though his words had been technically true, they were misleading and had an undercurrent that hinted that the defendants had been some kind of corrupting influence. In fact, defense attorney Tony Serra later got Harvey to admit that he had been smoking marijuana for 25 years prior to meeting Fry and Schafer. But even before that admission was made, it was clear that Harvey was no novice. All during the course of the direct examination, he claimed that he didn’t need any instruction on how to grow marijuana plants.
Pings asked Harvey about one of his first tasks in setting up the grow room – covering the walls in reflective foil. According to the witness, both defendants had told him to do this job, but he insisted that he didn’t need the reason for it explained to him. “I knew what the purpose was,” he responded snidely.
Harvey made the same claims about the other tasks he performed in the grow room – watering the plants, giving them nutrients, installing lights and taking measures to ensure climate control. According to his testimony, he didn’t even need to be instructed about the use of the timer or how to dry the harvested plants. Of course, he wasn’t terribly good at describing these processes, and often made blundering mistakes when talking about the tasks and equipment. At times it seemed he couldn’t get the right words out of his mouth to save his life.
The failures of communication began subtly, such as when Harvey repeatedly referred to the defendants’ “drying room” in a way that sounded to Pings as though he was saying “drawing room.” After a few encounters with this language, the prosecutor decided to straighten out the matter for good. “Some old-fashioned people on the east coast use the term ‘drawing room’ to refer to their living room,” she explained. “That’s not what we’re talking about, is it?”
While Harvey appeared oblivious to the concept of a ‘drawing room,’ he eventually came to understand the distinction he was being asked to make. Obligingly, he described a room where marijuana was dried after harvest, as “whole plants were hung from the ceiling to let the THC drain down to the buds.”
Most of the misunderstandings that occurred while Harvey was on the stand were minor and somewhat humorous. They were the type of shaky communication that people might have immediately upon meeting, while getting used to the particularities of each other’s conversational style. But the difficulties never quite worked themselves out, and it was as though an impenetrable wall of verbal opacity hung between the prosecutor and her witness.
When Pings asked Harvey about the size of the lights in the grow room, he repeatedly insisted they were twelve feet long. He said it so many times, and with such assurance, that the prosecutor seemed unsure about how to coach him to a more appropriate answer. Finally, Pings got her witness to approximate the size of the lights in comparison to a normal household object. “Like a good loaf of bread,” he responded, appearing weary of the subject. “Twelve feet long.” He held up his hands and approximated a one-foot space between them.
“Okay, a loaf of bread is not twelve feet long,” Pings clarified, eliciting smiles and giggles from the audience.
“Oh, I meant twelve inches,” Harvey said after a scrunching his face into a moment of thought.
As the courtroom of spectators watched, they let out a collective sigh. This was going to be a lengthy witness, and likely a frustrating one too. He was obstinate with the prosecutor, often using a condescending tone to insist on wildly inaccurate and inconsistent statements. But Pings stuck with it – no matter how agitated and difficult he seemed, Harvey was, after all, her witness.
The prosecutor tried again to get down to specifics. “What was the most plants you saw growing on the hill when you were working for the defendants?”
“Approximately 150,” Harvey responded.
The prosecutor’s reaction suggested that the answer was not quite what she had expected, and she pressed, “Does that include plants in the ground and in buckets?”
“Yes,” Harvey said plainly.
Pings tried again to elicit a more specific response before ditching the subject altogether, “And when did you see 150 plants?”
But Harvey stuck to his answer. “At harvest time.”
When asked about the intended recipients for the plants, Harvey said with assurance that he was growing “for the patients.” Later, he clarified that this term referred to people with doctor’s recommendations. And for these people, Harvey said, he was instructed by the defendants to make home deliveries of marijuana. The prosecution had already promised that their witness would describe this process as being similar to pizza delivery, but on the stand, Harvey drew a blank on the analogy. Pings had to try twice before finally coaxing it out of him, using questions like, “But didn’t you say it was similar to something?” and, “Didn’t you say it was just like something else?”
Pings then addressed the duration and the frequency of the deliveries. “How long did you make deliveries?” she asked the witness.
“Three months,” was his simple response.
But the prosecutor had reached a limit with Harvey’s inconsistencies, and she couldn’t bear to let another one slip by. “Didn’t you tell the grand jury that it was for a year?”
Serra knew when his territory was being infringed upon, and he interrupted with a tone of disbelief. “Objection,” he called out to the judge. “She’s impeaching her own witness!”
Judge Damrell barely looked up at the exchange. “Overruled,” he mumbled.
Harvey struggled to rectify his response. “It was intensive for three months, and slow the rest of the time.”
“How often did you make deliveries during the intensive period?” Pings asked.
Harvey contorted his face, as though the process of invoking memory was a physically painful one. “Five or six times a day, for 10 hours a day,” he finally answered. He also told the prosecutor that he made deliveries within a wide range of geographical areas, between Vallejo and the south shore of Lake Tahoe, based on orders that came down through Dr. Fry’s office.
At some point, however, Harvey got tired of all the driving and opted to take an ill-fated shortcut. He went to the United Parcel Service and mailed the packages of marijuana from there. It was these packages that later alerted the suspicions of UPS employees and were turned over to federal agents, prompting the investigation that quickly led back to Fry and Schafer. But, on the stand, Harvey’s recall about the packages was predictably flawed.
At first he told Pings that he only sent five of these parcels, but when evidence was presented of seven seized packages, Harvey changed his answer. One thing he consistently maintained, however, was that the defendants were the ones that provided the marijuana and the orders to deliver it.
“Who gave you the marijuana to send?” Pings asked her witness.
“Mrs. Schafer,” Harvey responded.
Pings clarified, “Do you mean Dr. Fry?”
“Yeah,” Harvey agreed.
“And who would weigh out the marijuana?” the prosecutor ventured.
“Dr. Fry would do it,” Harvey answered, “in her bedroom.”
Pings pressed, “What did she use to weigh it?”
Harvey’s response was quick, confident. “A triple-beam scale.”
Pings was on her first roll with her witness, every answer coming back as expected. The prosecutor pushed her luck. “What is a triple-beam scale?”
“It’s like the scales of justice,” Harvey answered.
Pings took a half-step backwards, suppressing a sigh of disappointment. “Doesn’t that technically have two beams?”
Things weren’t getting much better for the prosecutor, so she advanced her questioning to address the end of Harvey’s relationship with Fry and Schafer. “Did there come a time when you had spider mite problems with the plants?”
Harvey admitted that this was true, telling Pings that the infected plants had consisted of between twenty and thirty mature plants and two to three trays of clones.
“Did someone hold you responsible for that?” the prosecutor queried.
“They didn’t say that, but they had someone else take care of the plants after that,” Harvey answered. “I left right after that.”
“When did you leave?” Pings asked.
Harvey didn’t hesitate in his answer. “November 2001.”
Pings paused, giving Harvey a chance to catch his own mistake. But, like every other time this scene played out, Harvey was either unaware or unconcerned about the errors in his testimony. “Are you sure about that?” Pings finally gave in and asked the question outright. “Were you there for the serving of the search warrant on September 28th, 2001?”
“No,” Harvey answered Pings with a tone of annoyance, as though she had failed to do her own arithmetic. “I had been gone for two months,” he added, acting like the answer should be obvious. This put Harvey’s month of departure at July 2001, but this estimate didn’t even last for the rest of his direct examination. After discussing the seized UPS packages one more time, he decided that he had actually left in February 2001 and amended his statement. By the time the judge sent the jury off to a break, things in his courtroom had become quite confused and confusing.
But there were other matters to sort out, one of which involved a question that had been sent to the judge by one of the jurors. Paper in hand, Judge Damrell frowned down at the handwritten inquiry before reading it out loud to the parties in the courtroom, “‘When was the bunker built? Who built the bunker?’”
It appeared that at least one juror was considering the significance of whether the defendants constructed the safe-house on their property, and, presumably, whether they had done so with the ulterior motive of using it to stealthily grow marijuana. Judge Damrell suggested that the witnesses ought to be questioned more thoroughly on the issue, but defense attorney Laurence Lichter was confident that the matter would be fully elucidated without additional focus. “I think it will become clear that the bunker was a fallout shelter and was built before the defendants arrived,” Lichter said with assurance.
Sighing, the judge decided he would inform the jurors that their questions would go unanswered, at least for now. His instruction would be for them to let the trial take its course, and to ask questions only after hearing all the witness testimony. It was a simple enough solution, but resolving this issue left the parties facing another, more complicated matter. While continuing to question Harvey, the prosecutor was preparing to present to the jury a series of photographs that the defense did not want shown.
These pictures depicted Fry and Schafer’s young children playing and posing in the midst of marijuana plants, ostensibly while a reporter from High Times magazine covered a harvest on the defendants’ property. The images were later published on a website, which is where federal investigators found them, but it was unclear whether Fry and Schafer objected to the presence of the photos on the internet. “They didn’t give permission, but they also didn’t take action to have it taken down,” the prosecutor said of the defendants.
Whatever attitude Fry and Schafer had taken about the pictures being online, they felt strongly about the idea of the prosecution presenting these images to the jury. The defense attorneys had successfully prevented this from happening, forcing Pings to withdraw the photos initially. But the prosecutor changed her mind at the last minute and decided she wanted to use the pictures after all. “I don’t mean to take back what I graciously offered before,” she said, justifying her sudden change of plans. “But I think that’s what I’d like to do.”
This announcement stunned the defense, but Serra was quick to oppose the move. “Each of these photos shows minors, and that will potentially inflame the jury. It will do irrevocable damage,” he declared. “Children next to marijuana plants, children touching marijuana plants, children seemingly frolicking in a marijuana area…[the prosecutors] want it because it shows marijuana and it shows some big buds.”
Pings didn’t argue with this claim. Instead, she referenced a photo of the defendants’ daughter Caroline, who was nine years old at the time, holding what the prosecutor described as “a large and quite fruitful cola.” The size was the important thing to convey here, according to Pings. “This contradicts the defense’s assertion that they were not very good at growing,” she concluded. The other photos, she explained, were important because they showed the number of plants in buckets on the defendants’ property.
For Serra, these points certainly didn’t justify the use of the photographs. “None of the reasons for producing these photos require the presence of the children,” he maintained. “They are surplusage. They can be masked, covered up, marked over, etcetera, to keep out the inflammatory nature of having children there at a marijuana harvest.”
But showing that there were children at the harvest was precisely what Pings wanted, and she made no apologies for her intentions. “This shows that he’s handling his kids in such a cavalier way,” the prosecutor said about Schafer. “This goes against the contention that he ran only a strictly professional, responsible business based on charity.”
Serra turned to the judge, suggesting that Pings was being greedy on this issue. “She wants her cake and to eat it too,” he said of the prosecutor. “These pictures were there because the defendants believed one hundred percent that what they were doing was legal. But, we can’t say that to the jury. And the jury could be so prejudiced by these photos that there could be no prospect of us raising reasonable doubt.”
Judge Damrell, however, was not about to let the photographs be seen by the jury without first having the images of the children removed. He listened carefully to Serra’s speech, after which the parties began debating how and what to redact from the pictures. The defense insisted on bodies as well as faces being blurred out, but consented when the judge decided to leave in arms.
When the images were finally returned by the prosecution, they looked quite odd. Bright white glows stood in place of the children in the photographs, giving an eerie, paranormal quality to the figures. These ‘ghosts’ fenced with branches from marijuana plants, held up large buds, and sat on a pickup truck loaded with marijuana, waving indistinctly at the camera. It was a strange sight indeed, but both the defense and the prosecution approved the alterations, and the judge proceeded to set down the rules regarding their use. Harvey would be allowed to see the unaltered images, privately from a binder on the witness stand, but he was instructed not to refer to any of the identities of the blurred-out persons. The jury, of course, would only be permitted to see the photos in their altered form.
Harvey resumed the stand once the jurors were back in the box, and Pings had full use of all the redacted pictures. But Harvey’s memory problems only continued to increase, making him a difficult witness even for the basic task of identifying items in photographs. He was unwilling to estimate when the photos had been taken, saying only that harvest was done “when the plants were ready to harvest.” It was just one of the many redundancies in Harvey’s speech.
In the picture with plants in buckets, Harvey gave his count as a mere eight plants, which hardly sounded like a condemnation. But Pings used the photo series to get as close as she could to suggesting that the defendants’ minor children had helped with the cultivation and distribution of marijuana. In Exhibit 167, she displayed a photo of Schafer and Harvey in the living room of the defendants’ home, trimming marijuana plants. “The individuals in this redacted area, are they participating in this activity?” Pings asked, pointing to the blurry, whited-out figures in the picture.
Harvey glanced between the courtroom projector screen and the binder on the witness stand. “Yes,” he answered, unambiguously.
Other answers were harder to summon, however. There were many times in the remainder of the direct examination when he would be unable to remember any details at all, like what the letters in Fry and Schafer’s “HHHR” organization stood for. “I don’t know what they all meant,” he snapped at the prosecutor, appearing to resent that the question was asked.
He was equally indignant when he failed to recall the names of Fry and Schafer’s kids, the very children whose care he had undertaken. “I’m just really nervous at this time,” he said in a huff, glaring over the microphone on the witness stand.
A lack of memory was one thing, of course, but inconsistent recall was another matter entirely, and sorting out Harvey’s varying answers ate up a significant amount of time during both the direct questioning and the cross-examination. The process seemed unending – Harvey would insist devotedly on an answer that would later be shown to be factually incorrect, at which time he would simply give a new answer and insist upon it with similar devotion. It was a maddening cycle indeed, inspiring expressions of deep frustration on the faces of the jurors.
When Serra finally began his cross-examination, there was ample material for attack. As his first major inquiry, the defense attorney chose to focus on the issue of when Harvey stopped residing at the defendants’ home. “Was it November 2001 or February 2001?” Serra asked simply. “When did you leave? You answered both ways.”
“November 2001,” Harvey replied without hesitation.
Serra challenged the witness. “So you were present for the search warrant?”
“No – you have me really upset,” Harvey sneered. “No, I wasn’t present.”
Serra persisted, “Isn’t November after September?” When Harvey admitted that this was true, the defense attorney hit him with the next logical question. “So you would be there?”
“Yes,” Harvey said, beginning to look seriously pained.
“But you weren’t, were you?” Serra asked, prodding.
Harvey hit his limit at that moment, his temper boiling over in a hiss. “I just don’t remember everything,” he insisted, his small eyes blazing. “You have me rattled. You’re good. That’s my story and I’m sticking to it.”
Of course, claiming difficulty with his memory didn’t let Harvey off the hook – it just gave Serra a new hook to put him on. “You testified for the grand jury that you weren’t good with dates,” the defense attorney reminded the witness.
“I may forget things, but I don’t fill in the blanks,” Harvey said, attempting to defend himself. “Everyone forgets things.”
Serra got to the point. “Do you forget things?”
Harvey shot the question right back, adding a tone of irritation. “Do you forget things?”
Judge Damrell broke in, instructing the witness to answer rather than argue, and Serra asked his question once again. “Do you forget things?”
“Yes,” Harvey admitted.
Finally gaining ground, Serra pressed for more. “Is there any infirmity to your memory?”
Harvey acquiesced. “Yes.”
“Your recommendation says that you’re disabled, that you have memory loss, headaches, alcohol abuse,” Serra said, listing off the conditions.
But Harvey became stubborn again. “Just headaches,” he said firmly.
Serra insisted, “You have a bad memory caused by 30 years of alcoholism – is that true?”
“No,” Harvey said, denying the description flatly.
Serra was buoyant. “Did you say that to Dr. Fry during your evaluation?”
“I don’t remember saying that,” Harvey was muttering now, almost like a gruff whisper to himself.
“Do you want to see it?” Serra asked, offering to show the document.
Harvey refused, narrowing his eyes. “If it’s there, it’s there,” he conceded.
Serra continued, “On the form, you said you were fired from two jobs because of emotional problems and poor memory.”
“I don’t recall that,” Harvey said obstinately.
Pings objected to the line of questioning, and after a relatively brief sidebar, Serra restated his inquiry. “I referred to a diagnosis,” he clarified to the witness. “Were you aware you were diagnosed by Dr. Fry as—”
The prosecutor broke in again, objecting frantically this time and calling Serra’s claims hearsay. “It’s foundational,” the defense attorney assured the judge before turning back to the witness. “When you came to Dr. Fry and Dale’s Schafer’s premises, do you recall saying you needed time to dry out?”
As he did with all the other suggestions of alcoholism, Harvey resisted this characterization. “I don’t recall,” he said plainly.
Judge Damrell was skeptical. “Is this foundational?” he asked before allowing the defense attorney to continue.
Serra explained, his signature confidence shining. “It’s about memory loss,” he told the judge matter-of-factly, then returned to the witness. “Do alcoholics have gaps in memory?”
“Everybody has gaps in memory,” Harvey said vaguely. It was evident that the witness felt more comfortable with generalizations than with inquiries about himself.
But Serra insisted on keeping it personal and specific. “Do you?”
“Yes,” Harvey said, then echoed his last answer. “Everybody does.”
Serra began extending now. “Delirium tremens?” he asked. Harvey denied it.
“Blackouts?” the defense attorney queried. The witness wouldn’t even acknowledge the possibility.
Blocked, Serra went back to the discussion of impaired memory. “How long did you suffer from memory loss before arriving at my client’s premises?”
But instead of answering, Harvey balked at the barrage of questions. “Am I on trial, sir?” he demanded of the defense attorney.
Serra just gave back a kindly smile and repeated his efforts. “How long did you suffer from memory loss before arriving at my client’s premises?”
“I don’t know,” Harvey said grudgingly.
“Longer than 10 years?” Serra nudged the witness.
“I don’t know,” Harvey repeated, starting to steam up again.
“Why not?” the defense attorney pressed.
“I just said I didn’t know!” Harvey exclaimed, nearing a full yelling tone.
Serra took full advantage of the emotional intensity initiated by the witness, and began laying into him with a tone of righteousness. “The defendants took you into their family…they gave you a place to sleep…you sat at the family table…they paid you a salary, gave you room and board…you went with them to church every Sunday…they gave you presents on Christmas, and you got healthy and strong under their care…” Serra’s voice rose with each description, like a sermon approaching a climax of glory. He paced, looking around the courtroom as he made a list of the intimacies between Harvey and the defendants. Then, in a snap, he turned back to the witness to hurl the accusation, “And then you went and became an informant behind their backs!”
Pings issued a resounding objection to Serra’s terminology, but it was a problem that was not so easily fixed. The parties tried out terms like “cooperating witness” and “testifier” before they finally settled in agreement on an acceptable term, but the witness already had the idea of what was meant.
“I was approached by the DEA,” Harvey admitted to Serra.
“Were you scared?” the defense attorney asked.
“No, I was happy,” Harvey’s voice was drenched in sarcasm.
Pings objected, claiming that Serra was badgering the witness. “Yes, you are,” Judge Damrell agreed frankly, asking the defense attorney to move on.
Serra kept the fire-and-brimstone vibe as he moved on with the witness. “Isn’t it true that Dr. Fry and Mr. Schafer paid you a social visit six months ago and they asked you if you were testifying, and you lied to them?!” He made heavy eye contact with Harvey as he concluded. “These good people took you in and you looked in their face and lied to them!”
Harvey swallowed. “I am looking you in the face right now and telling you the truth,” was the response he managed.
Serra smirked. “You understand your status as you sit there, don’t you?”
“Status?” Harvey asked, perplexed.
Serra shot the answer back fast and loud. “You’re a RAT!”
Judge Damrell was aghast. “Oh, counsel…this dramatization…oh,” he floundered, caught in a state of shock and dismay before finally ordering the jury to recess. Once all jurors had left the courtroom, the judge turned back to the defense attorney and addressed him with equal parts of pleading and outrage. “Mr. Serra, calling a witness a rat is going way too far. I know you love the dramatics and the theatrics, but there are rules of the courtroom to abide by. You’re going way over the edge this time. I don’t know how your clients are helped by your conduct.”
Serra shrugged, at first standing by his call, “That is his milieu, your honor.” Pressed, however, the defense attorney relented, “Okay, I won’t use the term again.”
In a move that left watchers flabbergasted, Judge Damrell simply stood up and exited the courtroom. His body language spoke loud and clear –proceedings had concluded for the day, and there would be hell to pay tomorrow.
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Last Updated on Friday, 05 September 2008 01:40 |
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