Jeff's Blog... 'Schwartz On The Courts'

On July 2, 2011, in Sacramento, California, Humboldt County District Attorney Paul Gallegos attended a fundraising dinner to retire his 2010 campaign debt. The host was the medical marijuana lobbying group, California Cannabis Business League. The lobbying group chose Mr. Gallegos because he has been a strong advocate for the rights of medical marijuana patients and the legalization of marijuana for medical purposes. I am asking Mr. Gallegos to stop the madness of Humboldt County law enforcement raids on the homes of medical marijuana patients.

Gallegos’ candid and public position on medical marijuana is a courageous stand where most of his statewide district attorney colleagues and the Humboldt County law enforcement community feel just about the opposite about medical marijuana. Of course Gallegos’ stand on what he thinks is right despite running into a freight train of engrained Humboldt County backward politics and the fear-of-change that infects this county is one of the few bright spots that remain in Humboldt County politics after the November election. Think the firing of the forward thinking Eureka Police Chief Gar Nielsen by the backward thinking David Tyson.

Getting back to medical marijuana, I do have a criticism of Mr. Gallegos and I hope he considers this writing an open letter to him to right the wrong of Humboldt County law enforcement officers who almost weekly invade the privacy of cancer patients, diabetics, paraplegics and other medical marijuana patients when they bust into their homes in the early morning hours looking for the patients’ medicine without any reasonable cause to suspect the medical marijuana is unlawful.

The media has been reporting on marijuana raids throughout the county and in particular by the newly formed Arcata Police Department’s Special Services Unit – or otherwise known as the “SS Unit.” The reporting on these raids inaccurately state that the raids are on homes where, “illegal marijuana cultivation operations were suspected to be taking place.” In most instances that is not the case. The warrants are served because the Humboldt County law enforcement agencies believe there are marijuana cultivation operations taking place.

The SS Unit and all of the raiding agencies of Humboldt County don’t care if it is lawful medical marijuana or not.  The police will find that out later after a wee-hours bursting into a house with guns drawn rounding up all of the sleeping half-naked residents in the home including children at gun point into the living room face down on the floor.
At least twice last month Arcata’s SS unit raided two homes, and whoops the marijuana grows were lawful. In one case officers forced faced down on the floor with hands cuffed behind their backs an elderly couple, the officers first had to take the oxygen tubes out of the husband’s nose before smashing him into the floor. The Arcata Police Chief Chapman of course said something like, “sorry folks for the inconvenience, we’ll take off your handcuffs and put the tubes back in your nose so you can put on your clothes and you can clean up the mess we made tossing up everything in every corner of your house.”  

This paper and all of the rest of the news reporting agencies should ask the police just what facts they had to suspect whether the cultivation was unlawful as opposed to a lawful medical grow. Most of the time there are no facts to distinguish a lawful grow from an unlawful grow before the battering ram is pressed into service.  

Most importantly Mr. Gallegos should be asking that question before the warrant is even issued. Mr. Gallegos can fix the problem with the stroke of his pen, or should I say, withholding the stroke of his pen. Before a judge signs a search warrant, the judge requires that the DA sign off on the warrant with a statement that the DA believes there is probable cause to issue the warrant. Mr. Gallegos should not sign off on these warrants unless and until the law enforcement agent answers Mr. Gallegos’ simple question: “what facts do you have that suggest the suspected marijuana is an unlawful grow.”  

Jeffrey Schwartz the director of the Humboldt Center for Constitutional Rights (HumRights.org).  He can be reached at jdsarcata@gmail.com. Mr. Schwartz welcomes Mr. Gallegos and law enforcement to respond.

In the past year agents of the Humboldt County Firearms Task Force obtained numerous search warrants for several homes looking for illegal hunting rifles, ammo and handguns. The Firearms Task Force agents had no idea whether any of the firearms were unlawful; they had merely received reports that the people living in the houses had weapons.

 
The weapons and ammo discovered in the homes were lawful. The legality of the firearms was not discovered until after the agents conducted early morning raids with guns blazing, front doors knocked down, children screaming, half-naked adults corralled in the living room, and a search and upheaval of every nook and cranny of the homes. The lead task force agent said in each case “sorry about that” and left the families and their homes devastated.

The agents did not act alone. The task force supervisors applied for search warrants that were first approved by the District Attorney’s office and then signed by a Superior Court Judge.

We as Humboldt County citizens living in the United States of America where we revere our guaranteed constitutional right to privacy should be outraged and fighting mad that this kind of government conduct is allowed to happen, and has been happening almost every day for the past 15 years here and all over California!

Hold on a minute. Did I say unlawful firearms? I meant unlawful marijuana. And did I say the Firearms Taskforce? I meant the Drug Task Force. But every other fact mentioned here happens just as I said:  Time and again DTF agents and other law enforcement agents received reports of marijuana inside homes. They didn’t know whether the marijuana was part of a lawful medical grow or an unlawful commercial grow. Based on scant information, the agents applied for warrants approved by the district attorney and a judge. With warrant in hand, they rammed down doors and pulled high-powered weapons on residents of our county. And they have been doing this for 15 years and counting, ever since the Marijuana Compassionate Use Act (Prop 215) passed in 1996.

Sometimes the marijuana was unlawful, sometimes it was legal and sometimes the legality was unclear.  But few of us would stand for this conduct if the police were looking for guns. Neither the district attorney nor the judges would approve a search warrant if presented with a statement that the task force agent wanted to search a home just to see if something in the house was lawful or unlawful. Any judge or DA whether liberal or conservative would laugh the task force agent out of his or her chambers and then report the agent to his or her superior.

But that’s not the case when it comes to marijuana, which is lawful for medical purposes. The law enforcement community believes it can invade your privacy to determine whether your actions are legal even though there is no Federal constitutional authority to do so.  The United States Supreme Court has repeatedly held that once state statutes give you a right you are entitled to the procedural protections of the constitution. That includes the right to privacy. The constitutional problem would be cured if prosecutors and judges asked law enforcement agents one simple question before issuing a warrant: “Do you have any reason to believe the marijuana is not for medical purposes?”

Prosecutors and judges are on shaky constitutional ground if they sign these warrants without asking that question. Law enforcement agents are in worse shape because they are subject to civil rights violations and monetary penalties if they execute on these warrants.  But then again, they know that the likelihood of getting sued for invading the privacy of medical marijuana patients is low.

Maybe some people just write off this reality to the politics of marijuana. It remains to be seen if it is okay with the higher courts and juries in civil rights actions against law enforcement officers.

But if you own a handgun or rifle just imagine this: A judge issued a warrant to search your house because someone you know saw you with it and they don’t know whether or not you have a license to own it.

On November 2, 2010, the Humboldt County criminal justice system as it relates to marijuana prosecution may change drastically. The Regulate, Control and Tax Cannabis Act of 2010 initiative qualified in March for the ballot. Early polls suggest it will pass. The final outcome is uncertain. What is certain is the immense waste of time, money and resources in continuing to prosecute marijuana cases when before the year is out there is a very good chance that the possession, cultivation, distribution and sales of marijuana will be legal.

Without a moratorium the criminal justice system will remain severely clogged with marijuana matters that consume by far the largest number of cases jamming the justice system for precious court time on the morning calendars. For example on Monday mornings when the court calls the weekly trial calendar there have been virtually no courtrooms available for any trial unless a defendant asserts his or her right to a speedy trial. If you have a civil case that needs to go to trial, forget about it.  

A moratorium on the prosecution of marijuana cases until we find out if those cases will even survive the new law will open the courthouse roads to justice for more serious cases including the prosecution of methamphetamine sales, domestic violence, sexual assault and child abuse.

We have nothing to lose by imposing a moratorium. The genesis of a marijuana case from arrest to the actual filing in court is almost always three to six months, and often longer. That is just to get the case started. If there is no urgency in getting a case to court from the arrest to the first court appearance, what would be the urgency to continue to prosecute the cases while the law may be overturned in November? An April 15th marijuana arrest would not show up in court for first time until August, September or October or later.

There are other benefits as well. Some estimates say it costs the county $137.00 a day or more to house an inmate, not counting the enormous costs if an inmate gets sick and is treated at an outside medical facility. Should we taxpayers front that money when defendants’ sentences may very well be overturned in November?  

And, for those of us left who care about justice for the accused, should a person be punished with a pending marijuana case that may very well be a medical marijuana case hung up in the labyrinth of vague laws, when before the year is out, his or her case may be dismissed because the conduct becomes legal or not criminalized? Any case not final at the time a new law becomes effective gets the benefit of the new law. That means a person could be tried before a jury over a three or four-week period consuming enormous court time and money, sentenced and jailed and then finds out the news that his or her case will be dismissed.  
Placing a hold on marijuana cases until November has the upside of freeing the courts and the prosecutors to attend to more serious crimes, (which should be the policy anyway), saving the county enormous sums of money and not punishing a person on the eve of a law that may make his or her conduct not subject to criminal laws.     

Stop by any morning at the Humboldt County Courthouse and imagine half the number of people. Envision the overcrowding dissipate before your eyes. Then watch the court and prosecutors with limited resources concentrate on child molesters, rapists and spousal batterers without the distraction of massive numbers of marijuana cases.

If the initiative does not pass in November and we have a backlog of marijuana cases, maybe those in power will start rethinking their priorities on which kinds of cases we should spend our limited taxpayer money.
 

Jeffrey Schwartz is an Arcata criminal defense lawyer and former prosecutor practicing criminal defense law in Humboldt and Mendocino Counties. You can reach him at jdsarcata@gmail.com

Some elected officials in the criminal justice systems in Humboldt and Mendocino counties now act as if voters and legislators gave them a mandate to adopt a harsh penal policy toward marijuana growers. This is a recent and ominous change.

Measure B last June in Mendocino rescinded a previous measure that allowed for the personal possession of and expanded cultivation of medical marijuana. Arcata adopted an ordinance late last year that regulates grow houses. Together, these two measures and other similar ones emboldened the prosecutor in Mendocino County and a judge or two in Humboldt County to take a hard line on marijuana growers. These elected officials should be cautious. While they lead a backlash against the spread of marijuana cultivation, with harsher punishment for growers, they risk a stronger backlash at the polls.

 It is disconcerting to hear around the courthouses of Mendocino County deputy district attorneys with marching orders arguing “zero tolerance “ on marijuana cases and at least one judge in Humboldt County meting out sentences on first-time marijuana growers until now reserved for cocaine and meth dealers. One deputy district attorney in Mendocino stated, “the people have spoken,” referring to Measure B, when demanding a 365-day sentence for a 19-year old HSU student caught driving a few pounds of marijuana through Willits. This is a kid with a perfectly clean record.  The type of felony insisted on by the DA will never come off his rap sheet and will destroy his chance of getting a decent job in the future.

We need to gain perspective. We should remember that the personal possession of marijuana is all but legal in California -- if one is caught with an ounce or less of marijuana the penalty is a hundred dollar fine, it is basically a traffic ticket. Should we treat the people who provide them with an ounce of what is all but legal the same way we treat heroin, cocaine or meth dealers?

Consider the recent case of a Humboldt County judge who grabbed the “mandate“ and recently sentenced three marijuana growers to nine-months in county jail, three months longer than the most hard-line deputy district attorney in Humboldt County had even requested.  

Zero tolerance on marijuana growers may become contagious in our courthouses among the judges. If that happens, the would be hard-line judges and the Mendocino District Attorney will have sorely misconstrued what our collective community intended when they passed or agreed with these ordinances.  The residents who voted for Measure B and support regulations on grow houses in Arcata were fed up with the abuses of marijuana growing and the noise and smell and pollution that go with it; in the same way they don’t want a roofer setting up a tar boiling operation next door.

Harsher punishment of marijuana growers is a big mistake for an elected official.  Marijuana decriminalization in our counties is a hot issue like abortion and gay marriage. There are a whole lot of people supporting both sides of the issue -- and then there are the blogging Rush Limbaugh-types. With marijuana, as is the case with pro choice and the right to marry, the majority in our counties want it decriminalized.

In coastal Northern California we suffer from limited budgets and small police departments but we spend an exorbitant amount of public funds in the form of police and top of the line prosecutors’ time and county jail space to put marijuana growers behind bars. In Humboldt, one of the two best prosecutors in the office is spending her time prosecuting marijuana growers instead of child molesters, rapists or murderers.

These officials of the criminal justice system need to wake up or when their elected terms end, they will find themselves back in private practice. The People of Mendocino and Humboldt Counties are looking for regulation not criminalization.

It is time for Worth Dikeman to come back to Humboldt County to battle Paul Gallegos in the third and final bout in the political arena. This time that arena would be the courtroom of the Cheri Moore homicide where two high-ranking Eureka Police Department officers will be on trial for involuntary manslaughter.

The second surmountable problem is Dikeman is working on his pension benefits at the El Dorado County DA’s office.  At his current annual salary of over a hundred grand it would take him five years to make just under six hundred thousand dollars.  But, as lead counsel for one of the EPD officers he’ll make that in a year.  In two years, when the case is done and over and tried, he’ll have made close to a mil. Not bad. Two years’ work as a defense attorney defending police officers in exchange for ten years pay as a DA defending police officers. 

You say a million bucks. No way. You bet a million bucks. Do you know how much money will be thrown at the defense of this case? Not only is the city obligated to pay for the defense and the  officers’ union will pay for the defense, (which is chump change), but also this indictment will light the fire of police chiefs all around the country and we’ll see money coming in like it was the defense of Barry Bonds.

Instead of paying a six-lawyer dream team and ten million dollars, Worth can do it for a million and do a better job. Worth will also need a million for his support team of out of town experts in mental health, SWAT tactics, pathology, forensics, ballistics, and psychology. He’ll need investigators, law clerks, law assistants, and interns.

During the two previous bouts there was one thing consistent with Dikeman, voters voted for him, just not the majority of voters. This time Gallegos needs more than a majority. He needs all of the votes of the jurors and Dikeman only needs one. In round three where a win for Gallegos is 12-0, and a win for Dikeman is anything else, all Dikeman needs to do is pick 12 jurors reflective of the views of Humboldt County. If the trial goes forward with a representative sampling of the voting public of Humboldt County, Dikeman wins. This county is split on just about every liberal/conservative issue out there such as police shootings, TPZ, rails and trails, chain stores, and above all, Cherrie Moore.  A jury consisting of a cross-section of our community will split probably favoring Gallegos, just as the voters favored Gallegos. But a split is a win for Dikeman and the officers.

Like another like-minded person who won without the popular vote, Dikeman too can win without the majority of the people he is trying to convince. But it will be a win for Dikeman he has sorely sought. Having the last victory will mean a lot to him and we get Worth back into our county, retired, living on a good public pension plus a million dollars to spread around.

• It has been a month since Robin Arkley allegedly pushed and threatened Eureka City Councilman Larry Glass with ruination at a Coastal Commission mixer at the Avalon in Old Town.

The day after the incident, Larry Glass went to KHUM and said on air that Arkley shoved him and said he would ruin him if he voted against the Marina Center development. That was Glass’ version. Because it’s the only version by a principal party and because he filed a sworn police report about this incident, I will go with his version for now. In fairness to Arkley, there is a criminal investigation going on and Arkley’s attorney likely advised him to remain silent.

Meanwhile, Eureka Police Chief Nielsen told the Times-Standard that Arkley’s private investigators are obligated to turn over anything they find to the authorities. That’s incorrect. Investigators need not turn over any incriminating evidence against their clients.

Nevertheless, Arkley remains silent. His version comes out only through several layers of flak: A man who was in Louisiana on the night in question, then an underling who was with him at the Avalon (what do you think he would say?) and now, specially-hired “family” press agent Steve Glazer. He is also mayor of upscale Orinda and P.R. man for the Marina Center.

Glazer was once press secretary for California Supreme Court Chief Justice Rose Bird and failed gubernatorial candidate Kathleen Brown. For Arkley’s sake I hope Glazer does a better job than he did for Bird and Brown whose political careers imploded. Rose Bird arguably received the most unrelenting negative press than any state official in California history.

It’s an odd transformation from representing some of the most left leaning state officials (including Jerry Brown) to representing one of the most right leaning conservative Republicans
The easy question is whether the Push constituted a public crime that warrants a filing of a complaint by the district attorney. While the push itself was just a simple battery that only the most uptight person would want prosecuted, there’s no question that the district attorney should file a complaint against Arkley. That’s because Arkley seems to have committed a much bigger offense: intimidation of a public officer. Several sections of the Penal Code cover this. I like section 217.1 – Assault on President or other public official. It carries a three-year prison term. P.R. man Glazer told the Times-Standard that, if anyone thought Rob Arkley would change Glass' vote on the Marina Center, they would be crazy, meaning that Arkley therefore did not threaten Glass. I see it just the opposite. It makes sense that Arkley would threaten Glass, if in doing so he was able to intimidate the rest of the city council. Arkley never had Glass’ vote and never needed it. The only logical thing Arkley could have been doing is threatening ruination of the other council members through Glass. If you leave alcohol out of the equation, nothing else makes sense.

A public official should not be subject to that kind of worry or wonder before they vote on a development project.
Some suggest that Larry Glass must disqualify himself from voting on the Marina Center. In general, our courts of equity don’t permit someone to create a situation and then use it to his or her advantage. It’s called the Doctrine of Unclean Hands. For example, you can’t inherit money from a parent you just murdered.

It has been a month since Robin Arkley allegedly pushed and threatened Eureka City Councilman Larry Glass with ruination at a Coastal Commission mixer at the Avalon in Old Town.

The day after the incident, Larry Glass went to KHUM and said on air that Arkley shoved him and said he would ruin him if he voted against the Marina Center development. That was Glass’ version. Because it’s the only version by a principal party and because he filed a sworn police report about this incident, I will go with his version for now. In fairness to Arkley, there is a criminal investigation going on and Arkley’s attorney likely advised him to remain silent.

Meanwhile, Eureka Police Chief Nielsen told the Times-Standard that Arkley’s private investigators are obligated to turn over anything they find to the authorities. That’s incorrect. Investigators need not turn over any incriminating evidence against their clients.

Nevertheless, Arkley remains silent. His version comes out only through several layers of flak: A man who was in Louisiana on the night in question, then an underling who was with him at the Avalon (what do you think he would say?) and now, specially-hired “family” press agent Steve Glazer. He is also mayor of upscale Orinda and P.R. man for the Marina Center.

Glazer was once press secretary for California Supreme Court Chief Justice Rose Bird and failed gubernatorial candidate Kathleen Brown. For Arkley’s sake I hope Glazer does a better job than he did for Bird and Brown whose political careers imploded. Rose Bird arguably received the most unrelenting negative press than any state official in California history.

It’s an odd transformation from representing some of the most left leaning state officials (including Jerry Brown) to representing one of the most right leaning conservative Republicans
The easy question is whether the Push constituted a public crime that warrants a filing of a complaint by the district attorney. While the push itself was just a simple battery that only the most uptight person would want prosecuted, there’s no question that the district attorney should file a complaint against Arkley. That’s because Arkley seems to have committed a much bigger offense: intimidation of a public officer. Several sections of the Penal Code cover this. I like section 217.1 – Assault on President or other public official. It carries a three-year prison term. P.R. man Glazer told the Times-Standard that, if anyone thought Rob Arkley would change Glass' vote on the Marina Center, they would be crazy, meaning that Arkley therefore did not threaten Glass. I see it just the opposite. It makes sense that Arkley would threaten Glass, if in doing so he was able to intimidate the rest of the city council. Arkley never had Glass’ vote and never needed it. The only logical thing Arkley could have been doing is threatening ruination of the other council members through Glass. If you leave alcohol out of the equation, nothing else makes sense.

A public official should not be subject to that kind of worry or wonder before they vote on a development project.
Some suggest that Larry Glass must disqualify himself from voting on the Marina Center. In general, our courts of equity don’t permit someone to create a situation and then use it to his or her advantage. It’s called the Doctrine of Unclean Hands. For example, you can’t inherit money from a parent you just murdered.

It is not far fetched to see a judge preclude a development controlled by Arkley from even seeking approval from this City Council. Even if Arkley doesn’t challenge Glass’ right to vote on the project, the public has to wonder whether the rest of the council will vote on its behalf or in fear of Arkley. The public therefore may have a right to challenge Glass’ vote or other council members’ votes, depending on what side they are on. That’s why we need to vet this with local jurors and locally-elected judges who care about what the voting public thinks.
This is local political theater at its best. The last thing we need now would be for the California Attorney General to step in as the local Democrats suggest. We should not leave critical discretionary decisions up to people who know little about our community. Do we really want Sacramento washing our dirty laundry? As a prosecutor I’ve seen first hand what the itinerant Deputy Attorney Generals do when they puddle jump their way here. They do whatever it takes to get out of here.
Jeffrey Schwartz, Arcata

All comments are subject to exclusion based on offensive, irrelevant or vitriolic material. Only comments submitted with real names will be posted.

When I ran for a seat on the Arcata City Council people called me a newcomer and an interloper who wanted to San Francisco-ize Humboldt’s economy.

What’s wrong with that?

I came from a thriving, forward-thinking economy called the San Francisco Bay Area. From where I sit, the Humboldt County economy is decaying and people seem to be in denial or they simply don’t care.

You can see this ignorance in public apathy over Arkley’s proposal to bring in the Home Depot. Supporters of the project proudly talk about how wonderful and unique Humboldt County is. I am sure there are proud people sitting in some dirt town on the Texas Panhandle who talk about how special their scrub brush town is while they sip bad coffee at resin tables in front of their Home Depot.

When newcomers drive north on Hwy 101 into Eureka they start at K-Mart and end at Target.

Take a peek to the left on the Junk Food Highway and Costco lurks at a distance. Then there’s the 19th century smoke stacks ringing the Bay and filling our lungs, nostrils and views with "mostly steam." You’ll soon see the Home Depot as you make the turn onto Fifth Street. What’s next? A Motel 6 on the waterfront?

Where are the ecology centers and waterfront hotels built and designed by locals? Where are the high tech incubation centers spawning all sorts of green economy businesses? Where are the HSU shuttles wending their way among the green tech centers in Humboldt County to the campus where there are 11 institutes related to the environment and alternate energy? HSU pioneered alternate energy education in the sixties. Forty years later other university communities are cashing in on it while we mull a Home Depot.

If we keep relying on the broken down timber industry and the chain store businesses we'll see more strip malls filled with government offices servicing the unemployed and homeless. While we idle in the drive-thru line at the Taco Bell, parents and their college kids will drive through Humboldt County on their way to Oregon where the smaller communities take notice of what their big city (Portland) does and espouse alternate energy centers, small business incubators and environmental education. We'll shop at the Costco buying goods for our kids as they get ready for college somewhere else never to return unless they want to work for $12 an hour at the Home Depot.

How much longer do we keep our heads in the sand? Hank Sims of the North Coast Journal recently said Arkley's intentions are good and he is not out primarily to make money but does what he thinks is best for this community. That is what some say about Bush.

We need to attract talented, brilliant and creative minds to get an education, live and work and discover the next alternate fuel source here in Humboldt County. I see Humboldt’s future as an alternate energy center connected to HSU and CR that encourages this new talent to research and develop and invent. If we encourage a high tech economy the people who come will stay. Humboldt County is a fantastic place. We have one of the most educated communities in the state and we have the beaches, the rivers and the redwoods.

In this paper almost a year ago I made a plea to Arkley to turn his Balloon Tract into a high tech center that would attract new businesses and young entrepreneurs trying to discover the next alternate fuel source. I'll beg you again Robin, please consider a high tech alternate energy center for the Balloon Tract. Think of all of the supporting businesses that can go with it and all the tax money it could generate.

It is time to stop supporting this sad sack economy sputtering along on the last throes of chain saws and chain stores. It’s time to look to the future and support a high-tech alternate energy economy.

You choose: More hardware stores, smoke stacks and lumber trucks, or alternate energy centers, high tech institutes and think tanks.

San Francisco or some dirt town on the Panhandle of Texas?

Jeffrey Schwartz, Arcata