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SACRAMENTO, CA -- Six hours of deliberation yesterday wasn’t enough time for the jury to reach a verdict in the trial of Matthew Zugsberger, a medical marijuana patient being prosecuted for having poundage at the Sacramento International Airport. The outcome will now remain in suspense for several days, at least until jurors reconvene in Sacramento Superior Court on Monday morning to continue deliberating.
The reason for the hold up is anybody’s guess, but the formal requests and questions that have come from the deliberation room indicate some expected difficulties. This trial marks one of the first “test cases” in the six weeks since the California Supreme Court threw out legislated quantity limits for medical marijuana. Perhaps a result, the jurors appear to be having trouble finding a steady frame of reference on the appropriate size of personal stashes. During the trial, that frame seemed to change scope depending on which side was talking at the time, and early deliberations were blurry enough to prompt the jury to request the actual language of California’s medical marijuana laws.
Confusion over quantities could be the result of People v. Kelly, the aforementioned recent California Supreme Court decision that invalidated medical marijuana quantity limitations established through the Legislature. In medical marijuana cases tried previously in Sacramento County Superior Court, prosecutors have used the exact plant and weight numbers from the now-discarded legislative limits. This meant telling the jury that the legal boundary for a patient’s personal possession was 12 marijuana plants and eight ounces of dried marijuana. Now, however, it’s clear that the numbers can’t be portrayed as being so hard and fast. This situation has left the Zugsberger jurors to draw conclusions about how much marijuana the defendant can legally possess, based on factors like his method of ingestion and the amounts indicated in a generalized letter from the recommending doctor.
Law enforcement agents seized approximately three pounds of marijuana from Zugsberger’s person and luggage during the airport search back in December 2008. Zugsberger testified at trial that the marijuana was for his personal medical use, saying he intended to take the poundage to his ex-wife in Louisiana so that she could use her master chef training to cook it into food for his consumption. As case evidence has revealed, Zugsberger uses marijuana edibles to ease the pain and nausea from an injury he sustained while working as an undersea diver for an oil company.
Deputy District Attorney Satnam Rattu, however, said the defendant intended to sell the marijuana and that he was headed for Louisiana because he could fetch a higher street price for his product there. Although Rattu zealously pursued this theory, he was on shaky ground because there were no indicia of sales and therefore no solid pieces of evidence supporting his claim. Still, the prosecutor did an impressive job of trying to pull loose threads of circumstantial evidence together tightly enough to sometimes resemble a solid weave. And when holes showed through, Rattu attempted to cover them with colorful swaths of argument. His cartoon-enhanced PowerPoint closing statements, for example, were lively and thorough enough to earn defense attorney Grant Pegg’s sincere compliments.
When the defense attorney made his own closing arguments yesterday, he acknowledged to the jury that he had no “fancy-dancy” PowerPoint presentation. And it appears that he might not need one. At this point in the game, Pegg’s advantage is really not about what he has. It’s much more about what the other side doesn’t have, such as evidence compelling enough to convince twelve jurors of Zugsberger’s guilt beyond a reasonable doubt.
Appropriately, Pegg emphasized this point during his closing arguments yesterday. “I think the easiest way to describe this case is: what’s missing?” the defense attorney told the jury, focusing in on the fact that the prosecution had no evidence to indicate Zugsberger intended to sell his marijuana in Louisiana. From Pegg’s view, there was a crucial reason why the prosecutor lacked this evidence: it simply didn’t exist.
That’s not necessarily to say Pegg thought highly of his client’s elaborate plan for getting custom-made marijuana food products. After all, there is a great deal of work, time and risk in transporting marijuana across the country and then transporting the prepared foods back across the country. And, of course, the whole plan didn’t end up working very well at all. “Was it the brightest idea to do it the way he did it?” Pegg asked rhetorically, referring to his client. “No.” But Zugsberger’s plans hadn’t been criminal, his attorney posited.
Pegg also pointed out that the jurors hadn’t heard anything indicating that his client’s medical need for marijuana wasn’t legitimate. Of course, jurors would recall a contentious line of questioning in which the prosecutor suggested that Zugsberger didn’t actually have a cancer diagnosis unless he’d confirmed his oncologist’s opinion by getting a biopsy. This implied that Zugsberger didn’t have cancer, but Pegg scoffed at such a suggestion. “You don’t go to an oncologist for kicks,” he told the jury. Besides, he reminded them, Zugsberger’s medical marijuana recommendation wasn’t for cancer – it was for back pain, and the prosecution wasn’t contesting its validity. Therefore, Pegg reasoned, “The only question left is: did he have too much?”
During trial, the prosecution had challenged a letter from Zugsberger’s doctor saying that he recommended five pounds of marijuana to his patients yearly. That challenge was based on the fact that it was a general statement that didn’t address Zugsberger and his needs personally. Still, the defense attorney pointed out, the prosecution presented no evidence that five pounds was an unreasonable amount for Zugsberger’s personal medical use. Perhaps if Dr. Hopkins had been able to testify about his patient’s condition and medical needs, there would be a clearer understanding on the issue. Instead, the attorneys were left with the opinions of their expert witnesses regarding reasonable amounts for possession.
Predictably, expert testimony on this matter was split cleanly down the middle, and Pegg acknowledged that. Chris Conrad, the defense’s expert witness, had testified that Zugsberger’s quantities were consistent with his personal use needs. On the other hand, Detective Lannom had testified for the prosecution that three pounds of marijuana was in excess of what Zugsberger could reasonably consume in one year. This variance of opinion was no surprise to Pegg, since each side selectively uses the witnesses that support its view of the case.
The defense attorney was similarly unflustered by all the talk about Conrad being biased because he was paid for his testimony. Although the prosecutor had tried to paint Conrad as “the defense’s whore,” as Pegg put it, the truth was less sensational and far more commonplace. “We all get paid to do our jobs,” the defense attorney pointed out.
Furthermore, Pegg asserted that Conrad was the more relevant of the two expert witnesses who testified at trial, since he had vastly more experience than Lannom in evaluating cases of legal marijuana possession. The defense attorney suggested that, with only four hours of formalized training that touched on medical marijuana, Lannom might be slanted towards a finding of illegal possession.
Also, Pegg asserted, Lannom’s calculations about quantities and dosing weren’t relevant because they ignored evidence in the case – the detective had determined that it would take Zugsberger one and a half years to smoke three pounds of marijuana if he rolled it into 0.2 gram joints and smoked a joint every two hours. But, as Pegg reminded the jury, Zugsberger didn’t prefer to smoke marijuana – instead, he ate it, a method of ingestion that both expert witnesses said requires larger quantities of pot than smoking does.
“Mr. Rattu said the case is about excess,” Pegg recalled, giving the jurors a gaze of gravity. “It’s your job to determine that.”
The guiding metaphor in Pegg’s closing arguments had been a fork in the road that the jurors were now approaching. If one diverging path led to a reasonable inference of guilt and the other led to a reasonable inference of innocence, the defense attorney said, then the jurors must take the path towards innocence.
It was precisely this imagery that the prosecutor co-opted moments later in his rebuttal argument. “There’s no fork in the road,” Rattu said. “It’s a one-way street to guilty.”
As the prosecutor saw it, this journey towards guilt was inevitable, and jurors may have first recognized they were on it when they heard Zugsberger testify about what he planned to do with the three pounds of marijuana he was trying to take to Louisiana. Rattu didn’t buy Zugsberger’s explanation about the planned production and transport of edibles. “The defendant made up a story,” the prosecutor declared.
For instance, Rattu asked the jury, how could Zugsberger possibly have expected to fly back to Sacramento with a cooler full of medicated ice cream so easily? “It’s hard enough to travel with a three-ounce bottle of shampoo,” the prosecutor said, referencing restrictions on liquids and gels for commercial air travel passengers.
According to Rattu, Zugsberger’s story about the edibles was just a fiction he concocted to get himself out of trouble. It was the same thing with Zugsberger and his claims of having cancer, Rattu said, except that the prosecutor found untruths about having cancer to be morally reprehensible. “You don’t throw around saying you’re terminally ill with cancer,” Rattu scolded.
As it turned out, the prosecutor didn’t just doubt that Zugsberger had cancer. He was also highly skeptical that Zugsberger treated his nausea with marijuana-infused edibles. “If you have nausea, you need to treat it right away. You need to nip it in the bud, so to speak,” Rattu said, seemingly cognizant of his pun. “You don’t want to eat a bunch of pasta and ice cream and wait for it to digest and go through your system.”
Rattu made it clear that he was not questioning the validity of Zugsberger’s medical marijuana recommendation. Rather, the prosecutor simply doubted that Zugsberger used marijuana the way he claimed and therefore that he needed such large quantities. “Three pounds of marijuana at one time isn’t appropriate for any condition,” he maintained.
The prosecutor then tried to convey his point to the jury in terms of familiar dosages by setting up a rhetorical parallel between marijuana and the pharmaceutical painkiller Vicodin. A dose of marijuana was a 0.2 gram joint, in this comparison, and a dose of Vicodin was a single tablet. Rattu then retraced his expert witness’s calculations, by which three pounds of marijuana breaks down into 6850 joints.
Although the drug comparison seemed to stretch the bounds of relevance, the point of the exercise was clearly to envision how strange it would be for someone to carry around nearly seven thousand doses of a medicine that was purely for their own personal use. “That’s 6850 tablets of Vicodin,” Rattu emphasized. “That’s what a pharmacy has, not an individual… That’s what the defendant was doing here – he was going to be a pharmacy in Louisiana.”
As Rattu put it, Pegg’s analogy about diverging paths presupposed that there were two separate sets of reasonable assumptions for jurors to make. “There are no reasonable inferences in this case,” the prosecutor concluded. “They all lead down that one-way street to guilt.”
For now, there are only theories and predictions… but in a matter of days, the Zugsberger jurors will reveal which road they’ve been on and exactly where it leads.
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