Thursday, July 31, 2008

Lynch Trial Update: Wednesday, July 30

Cross-posted to Rough Cut

Wednesday morning began with the cross examination of Special Agent Rachel Burkdol, of the DEA. John Littrell, one of Lynch's lawyers, pointed to some glaring problems in Burkdol's methods and testimony. She conceded that only 0.5 g and 1 g amounts were sold from the store, according to the hours of footage she viewed from the security cameras. The defense has demolished the conspiracy charge by noting that Lynch kept accurate customer records, bank statements, financial statements, and a security camera on his own business. What street dealer has ever kept a storefront, only sold to people with prescriptions, accepted credit cards, and given receipts with instructions not to distribute, and to use only for medical purposes?

In Burkdol's count at the store on the day of the raid, she came up with 104 plants, an important number, since federal law calls for harsher penalties for cultivating 100 or more plants. Burkdol counted the plants by herself on the day of the raid, and not even one other agent or deputy checked or confirmed this number. She left no paper trail, but simply wrote down 104 on the search warrant receipt. Later, in filing her report, she wrote, "approximately 104." Apparently, it is standard practice to write "approximately" before measurements in reports, even when these measurements are accurate to several decimal points. If it wasn't problematic enough that no one checked her count, it didn't help the government's case when Littrell discovered that this was Burkdol's first case that she had led, that she had no prior experience counting plants, and that she never learned any official procedure for counting plants.

Marijuana plants are difficult to count. One plant is defined as belonging to one rootball, and plants commonly have multiple stems growing from the same rootball. To see if the stems do belong to the same rootball, an agent would need to tear the stem out from the slab, and this procedure easily damages the rootball, ripping it apart. As such, this would give Burkdol a perfect opportunity to inflate her count. One of the exhibits showed how agents had handled the plants at the raid. A photograph of a ripped up plant revealed it to be ostensibly damaged and casually draped on top of a cardboard box. Obviously Burkdol didn't worry much about precision.

Littrell at one point asked if the court needed to rely on Burkdol's math skills to count the plants, prompting laughter from the public and jury for the reference to her testimony on Tuesday in which she botched a customer's age by incorrectly subtracting the date of birth on their California driver's license from the date of the raid.

Did Burkdol have an incentive to inflate the count? Littrell interrogated as to whether or not Burkdol was familiar with 21 USC 841, the law from where the number 100 came. Even though Burkdol cited 21 USC 841 in her application for the federal search warrant, she admitted that she had never read it in its entirety, even during her training at the DEA training academy in Quantico, Virginia, just 18 months earlier. She also conceded that while she was familiar with the cutoff amounts that vary penalties for other controlled substances, she was unfamiliar with the amounts for marijuana. This surely left the jury astounded, since Burkdol had been working on this case for a year, this case that explicitly involves marijuana and no other controlled substance. She claimed that no one in the DEA office knew of the significance of the number of plants being cultivated. Burkdol said that after learning of the significance of the number 100, she surprised her colleagues when she informed them.

Burkdol put the plants into plastic containers despite knowing that this was an inferior way to keep them, if they were not vacuum-sealed. Many of the plants deteriorated quickly, so much so that a DEA chemist asked Burkdol to dispose of them when the boxes in which they were kept grew moldy. Burkdol gladly disposed of the plants, about a month before any charges were even brought against Lynch, and no one from the prosecution or defense had any opportunity to inspect the plants before they were destroyed. Burkdol said that she was not familiar with 28 CFR 50.21, the procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities, and rather, just followed the guidelines in the DEA manual. She wasn't aware that she needed to notify the attorneys involved in the case if she destroyed evidence. Kowal, the short-tempered male lawyer representing the government, violently bellowed out an objection, and the court took a side bar and break.

Littrell poked holes in the financial records and log of credit card transactions Burkdol summarized in her report, since she had never received any training in forensic accounting, and was not even familiar with the term Generally Accepted Accounting Principles (GAAP). There was no way for her to tell whether or not someone could have been using the credit card machine to embezzle money.

It remains unclear the degree to which Rachel Burkdol even understood how poorly her cross examination went. She did not act appropriately shamed as Littrell exposed her irredeemable incompetence.

After the lunch break, the U.S. government called Timothy Nugent, an IRS criminal investigator, who went over financial documents. Unlike Burkdol, the defense found in the cross examination that he was indeed versed in GAAP. The government called Leah Carney, a forensic chemist to testify that indeed, she had found marijuana and THC in the evidence presented to her, using a microscopic test, color test, thin layer chromatography, gas chromatography mass spectrometry. Sam Maroge was another forensic examiner called to the stand who performed the same tests, except for the gas chromatography. The forensic examiners were excused without any cross examination.

After days of enduring the prosecution tediously presenting evidence, it was finally time for Charlie Lynch to testify for the defense. Reuven Cohen asked him questions, and started slowly, moving cautiously and deliberately.

They began with his background with his family, and his preparation before opening the dispensary. They clarified that Lynch listened to and saw all the testimonies from the trial. Lynch did indeed have marijuana in his dispensary. They discussed his background, including the multiple degrees he earned from college, and his successful career in software development. Before opening the dispensary, Lynch had started his own software business. Even before college, Lynch demonstrated his noble work ethic when he worked for his stepfather's business.

In the summer or fall of 2005, Lynch considered opening up a medical marijuana dispensary. San Luis Obispo didn't have one, so it seemed like a good idea to him to provide a valuable service for all those patients who needed to travel a sizeable distance to fill their prescriptions. Lynch wanted to be very sure that he would not violate any laws state or federal, so he started to do some research on the Internet. He looked at Proposition 215 on a California state government website, which referred to Senate Bill 420, which he looked up. He looked at the Tenth Amendment to the Constitution of the United States , and still found the laws confusing. He checked out the DEA website and found a page that listed the scheduling of drugs.

Cohen admitted Exhibit 421, a copy of Lynch's phone bill. Lynch first phoned the Oakland DEA office, and inquired about the marijuana dispensaries for the state of California. The man on the other end of the phone couldn't answer his question, so he referred Lynch to a local office in Camarillo. Lynch asked his question again, and was referred to another office. For the third call, Lynch rephrased his question, sensing that he was hitting a wall. He asked what the DEA was going to do about the medical marijuana dispensaries around the state. He was referred to yet another office. When he called this fourth office, a lady answered, "Marijuana Task Force." Lynch repeated his question to her, and the woman asked how he got their number. He explained, was put on hold, and eventually a male picked up. Lynch asked about any legal obstacles if he wanted to open up his own dispensary in California, to which the man on the other end of the phone replied that it was up to the cities and counties to decide how they want to handle the matter. This made sense to Lynch, after his reading of the California and federal laws.

Wu stopped the testimony here. He wanted to delay on deciding whether or not this would be sufficient to argue for entrapment by estoppel. The office did answer with "Marijuana Task Force," and the defense does have a document of each of the phone numbers he called, but the voices were never named on the other end of the line. Also in question is the legitimacy of the authority of that unnamed man from the Marijuana Task Force.

Having admitted to dispensing marijuana on the witness stand, the defense is relying on entrapment by estoppel to absolve Lynch of all charges. Wu will make the decision on whether or not this is a proper defense this morning at 10:15, before the jury comes in at 10:45.

Supporters are encouraged to attend the trial.

U.S. District Court
Courtroom 10
312 North Spring Street
Los Angeles, CA 90012

Supporters can join the Free Charlie Lynch! Facebook group.

Check out previous coverage of the trial for Friday , Monday , and Tuesday , as well as a video update. If you haven't seen it already watch Raiding California for context leading up to this trial.

Wednesday, July 30, 2008

Lynch Trial Update: Tuesday, July 29

Cross-posted to Rough Cut

On Tuesday, Owen Beck attempted to testify, unsuccessfully. Raiding California told the tale of Owen Beck, a teenager that lost his leg to bone cancer, and found relief from excruciating phantom pain only from marijuana.

The government continued the examination of DEA agent Rachel Burkdol, going straight through 65 pieces of evidence from the raid, describing, in detail, photographs of display cases, offices, computers, and products, as well as copies of computer files, financial records, bank statements, and notebooks, all of which were seized during the raid. This took the entire morning, and went into the afternoon, after lunch.

Before lunch, an earthquake hit the courtroom, interrupting the proceedings. When the council attempted to continue, a voice on the loudspeaker with emergency information about the earthquake repeatedly interrupted, so the court broke for lunch.

After lunch, the defense wanted to interrupt the prosecution's all-day examination of Burkdol to bring in Owen Beck. The defense didn't want Beck and his family to have to wait through another day of the trial because no one had anticipated how long the prosecution would drag on with their presentation of evidence seized from the raid.

Judge Wu had warned the defense that Beck's testimony would need to be relevant, and would need proper foundation. The defense attempted to bring him in as a character witness, a witness who could testify as to Lynch's moral and law-abiding nature.

The nineteen-year-old Beck entered the crowded courtroom on crutches. He showed not even a hint of intimidation despite a powerful silence from a room full of observers. He was sworn in, and began to answer questions from Cohen, one of the defense attorneys. When Cohen asked how Beck knew Lynch, Beck began to answer in a confident, direct voice, that he was diagnosed with bone cancer, and obtained a prescription from his Stanford oncologist for marijuana, at which point the government immediately objected. Wu sustained the objection, and quickly sent the jury out of the room. The council deliberated on whether or not Beck's testimony was legitimate. Wu explained that Beck had no foundational basis to testify about Lynch's law-abiding nature, since he only knew him in the context of the lawsuit itself, being a patient who patronized the dispensary. Even though Beck did form a close relationship with Lynch over the two years he knew Charlie, corresponding by e-mail at least every three weeks, Wu found this to be insufficient foundation. According to Wu, the testimony apparently would have violated a rule, 404, by attempting to confuse the jury. That Beck could testify as to how Lynch was a law-abiding citizen with regard to state laws made no difference to Wu; he saw this as a red herring since federal laws were in question here. Wu had not elaborated to what a character witness could testify. If the defense wanted a character witness to explain how Lynch was a law-abiding citizen, there was never any clarification that this meant only federal law. Regardless, Beck was dismissed from the courtroom, and the jury was instructed to disregard anything he said at all.

The prosecution continued on with Burkdol, jumping to footage from security cameras inside the store, and more evidence turned up from the raid.

The trial continues tomorrow.

Tuesday, July 29, 2008

Earmarks: The Alien Menace

Trial Update: Monday, July 28

Cross-posted to Rough Cut

The proceedings on Monday consisted of mostly the same from Friday. The government called several more witnesses from the Sheriff's Department and DEA to identify pieces of evidence in drug deals with undercover officers, surveillance conducted for a year before the raids, and the raids themselves on Lynch's residence and business.

Before the jury entered in the morning, the council was discussing how they were going to fairly address any "nuts and bolts" since the government had already brought up a discussion of the medicinal use of marijuana. Judge Wu had warned all parties to avoid the nuts and bolts, but the government had already gotten their foot in the door. The defense needed to counter the charges of conspiracy, so they wanted to clarify that the receipts from the dispensary contained the instructions, "Do not distribute."

Over the weekend, two jurors had seen the headline of the L.A. Times article about the case, and so the council took some time to make sure that their impartiality had not been compromised.

The U.S. called on Scott Sarmento, a computer forensics examiner for the San Luis Obispo County Sheriff's Department. The prosecution had Sarmento describe what he did to copy the data from the hard drives. In the cross examination, the defense pointed out that Sarmento could not follow the chain of custody for the hard drives, even though tampering with them would be difficult.

Detective John Blank was next. He went undercover with the alias of "Jesse Baldridge," and had made several purchases of marijuana in the store. The first time he entered the store, a security guard made him sign in with his name and the time. In the cross examination, the defense inquired as to the six-page form Blank had to sign, but he admitted that he didn't read it. Once, when Blank attempted to enter the store with a 17-year-old, he was turned away. Under the alias of Baldridge, Blank had used a real prescription from a real doctor to make the purchases. This behavior puzzled the defense. Why didn't Blank just use a fake prescription? What special circumstance required lying to a doctor?

Detective Keith Scott, of the Sheriff's Department, was called to the stand. He had helped set up a buy, and conducted some surveillance.

Gerald Giesy, of the San Luis Obispo Sheriff's Department, conducted some surveillance as well.

Jeffrey Scott Larock, from the DEA, searched Lynch's residence and verified what some documents were that were found there. In this cross examination, the defense unsuccessfully tried to elaborate on the raid, attempting to bring up the disturbing conduct of the DEA agents in the raid, but the prosecution continually objected to the whole line of questioning because of relevance to the evidence. The defense tried to bring up that the DEA agents, during the raid, had pointed a loaded gun directly at Lynch, forced him to the ground while he was naked, and allegedly played a piano in his home. The defense also brought up that Larock could not verify what a bag full of cash amounted to, because he had not counted up the bills himself.

Rachel Burkdol, a DEA special agent, described the raid on the business, and some documents there.

The government's strategy has been, so far, to bring in lots of agents involved in surveillance, undercover work, and the raid, and simply have them identify evidence collected in these ways. The defense in their cross examinations have closely examined flaws or inconsistencies in how these pieces of evidence were obtained.

On Tuesday, the defense will likely call their witnesses to the stand, and elaborate on their main argument, entrapment by estoppel.

Saturday, July 26, 2008

Raiding California is making the rounds on the Internet

Our reason.tv piece Raiding California is getting pretty popular in the past few days. You can check it out at Boing Boing, Digg, and Salon.

Please check out Friends of Charles C. Lynch, and you can check out an update from Ted Balaker, the producer of Raiding California.

Charlie Lynch's Trial: Friday, July 25

Cross-posted to Rough Cut

Friday was the first real, solid day of the trial, with opening statements and witness testimonies. The atmosphere is tense but also quite hopeful. Charlie and his family welcome all the love and support from those people who showed up to support him, and they were delighted to hear about the big presence of the reason.tv piece on Boing Boing and Digg. During one of the breaks, Charlie's mother gave me a lapel pin of the flag of California. A lot of Charlie's supporters seem to be wearing these, so I presume the symbolism to signify that we support California's state laws, as opposed to the federal laws.

As a heads up for those of you who plan to attend next week, a police officer came into the courtroom during one of the breaks and told anyone in the public to turn off all electronic devices. I had been typing notes on the laptop until that point, so I guess they won't allow it in the future. I did think ahead though, so I had a notebook. Here's what went down.

Before the jury came in, the prosecution and the defense were arguing about the legitimate use of one of the documents as it would pertain to entrapment by estoppel. It seemed to be a lot of esoteric legal jargon, but eventually, they proceeded and said that whatever was relevant would be resolved in the body of the trial. The government made a bizarre claim that the defense's strategy of arguing entrapment by estoppel would waive attorney-client privilege, which Judge Wu rejected as not true.

The defense wanted to refer to Lynch's place of business as a "medical marijuana dispensary," which Wu said would be OK at times, but to just simply refer to it as a "marijuana dispensary."

They also clarified that they were not to discuss any "nuts and bolts," such as the medical efficacy or necessity of marijuana.

The jury was brought in and Wu read the indictment.

The indictment against Lynch, which is in no way evidence, included knowingly possessing and distributing more than 100 g of marijuana, possessing more than 100 marijuana plants, knowingly possessing and distributing substances containing marijuana and THC, a schedule I controlled substance, knowingly and intentionally distributing to persons under the age of 21, operating a marijuana dispensary named Central Coast Compassionate Caregivers, growing and selling marijuana for profit, and hiring employees to grow and sell marijuana. The list goes on, with lots of details regarding what was turned up at the raid earlier this year.

The opening statements were given, and the jury was instructed that indeed, opening statements are not evidence either ; they are just a forecast of the arguments to come. Also, statements of the attorneys are not evidence, unless stipulated by both parties.

The government gave their opening statement, telling the jury that Lynch operated a marijuana store, had over 2000 customers, had thousands of plants, etc. He also made the point that Lynch kept very good records of exactly who he was selling to. The government was trying to point out that he overtly broke the law, but I think it could have actually backfired as a rhetorical technique, since they were making it clear that Charlie wasn't some street dealer. Regardless, opening statements are not evidence.

The defense then gave their opening statement, using a visual aid, four phone numbers on a big piece of paper on an easel. Lynch will indeed testify directly. Of course, he has no criminal history. When Lynch testifies, he will ask the jury to focus on one document, an SBC phone bill that shows calls that he made to 4 phone numbers, which all belong to the DEA. He called the Oakland field office, who couldn't answer his question about the legality of opening up such a business, and then called the local DEA office, in Camarillo. Then he was referred to L.A., and then referred to two duty officers of the marijuana task force. He called the DEA precisely because he wanted to comply with the law. The defense's opening statement ended, “The evidence in this case will show that there is a moral and law-abiding man sitting in that chair.”

After the court was to take a break, the defense refused to give a certain document to the government. The male lawyer representing the government became quite agitated, visibly angry at this, in an awkward way. The document was turned over to the government eventually, but the incident gives insight to this lawyer's demeanor.

After the opening statements, witnesses were called to the stand. The government called Detective Greg Beuer, a deputy sheriff for San Luis Obispo who explained that he conducted surveillance on the dispensary, and confirmed that once he saw an elderly man step into the dispensary for 5-10 seconds, say something, and then walk outside. An employee then handed a brown paper bag to him on the sidewalk, then drove to a residence and delivered a large brown paper bag. Beuer also observed that employee drop off a package to the post office. In the cross examination, the defense pointed out that this person was elderly, so they inquired as to how he so quickly climbed the flight of stairs to the second floor, where the dispensary was located. The defense also pointed out that Beuer let a suspect package be mailed even after seeing it dropped off at the post office.

The government called to the stand James Wade Moxley, a deputy sheriff for San Luis Obispo. During this initial questioning by the government, they brought up what they think is a black backpack full of cash, and a box which they saw taken out of the store. The cross-examination revealed that Moxley couldn't guess at all what was in the box, so the defense successfully weakened any point of evidence that the government was trying to push as relevant.

What the government was trying to do is prove that a few rogue employees were actually operating under the orders of Lynch, and the defense is systematically disproving this.

After lunch, the government called to the stand Detective Nicholas A. Fontecchio, another sheriff's deputy from San Luis Obispo. In questioning, he explained that he had 100 hours of training in growing marijuana indoor and outdoors, and had worked on approximately 1300 narcotics cases, 300 of which pertained to marijuana. He described a drug deal that happened with an employee. The government questioned him for quite a long time, dragging the questioning on and on, providing recordings of phone calls with the employee from an undercover officer, as well as the evidence for product they obtained in the deal. The government dragged this out for hours, making Fontecchio identify forty pieces of evidence that were obtained both in the drug deals with undercover agents, and in the raid on Lynch's business and home. In the cross examination, the defense brought up that two informants involved in executing the drug deals were working off cases, and one was paid $300, including gas for his car. The number that the defense had was closer to $1000, but the number was disputed. Fontecchio also said that he didn't recall whether or not he searched the first confidential informant at one of the drug deals, which means logically, that Fontecchio could have no idea if the informant had any more money or drugs in his car at the time than what he had after the drug deal. The implication from the defense was that this informant was being paid, and had an incentive to produce results. Since he wasn't searched, there's no way to tell if the drugs that were produced ever even came from Lynch's business. Also, the store only sold 1 or 3 gram quantities, and the amount of marijuana supposedly purchased at this drug deal set up was about 300 to 330 g which makes it increasingly unlikely that Lynch had anything to do with it. Also, this employee at the drug deal did not provide receipts of any kind, or instructions on how to properly use the marijuana, as would have been provided by the dispensary, further removing what would have been any involvement by Lynch, and therefore, responsibility. The defense also pointed out that Fontecchio could have no idea if a particular strain obtained in the drug deal was the same strain grown at the dispensary.

The next session will start on Monday at 10:30 a.m. for the council, 10:45 a.m. for the jury.

Check out the L.A. Times piece on this case, and if you haven't already done so, watch our reason.tv piece about Lynch.

McCain's Big Cash Prize


http://reason.tv/video/show/482.html

Perfect price discrimination

It's rare that a company can execute perfect price discrimination.

Friday, July 25, 2008

Charlie Lynch's Trial

I am covering Charlie Lynch's trial for reason.tv. If you don't know the story of Charlie Lynch, take a look at the video we did.



reason.tv will be releasing information as the trial progresses.

Wednesday, July 16, 2008

Sunday, July 13, 2008

Will the iPhone 3G blend?

The iPhone 3G is great, but will it blend?

Tyranny in California

Banned!

Look for the kid playing online poker.

Tuesday, July 8, 2008

Hands Free in California

There's an amusing billboard I saw today that reads, "Take your hands free ticket to jawbone.com." It's a clever marketing ad capitalizing on the ridiculous new law in California banning people from using a handset while driving. Legislators in California didn't quite grasp the sheer idiocy of the law.

If using a cell phone while driving makes that driver more dangerous, it's because of the distraction of the conversation itself. When on the phone, people tend to look at one spot, sacrificing awareness of their surroundings to pay closer attention to the conversation. They stop checking their mirrors and speed as frequently, and they more easily ignore peripheral vision. Many, if not most people drive with just one hand on the steering wheel; why doesn't the new law ban that?

The law ignores what is arguably the most dangerous aspect about using a handset, looking down at the phone answer or make a call, or to navigate through menus, perhaps to look for contacts or punch in a phone number. Shoving a stupid earpiece into your skull isn't going to change that behavior.

The law may produce the unintended consequence of increasing the amount of text messaging while driving. Text messaging requires looking down at the phone and focusing on what buttons to press, and the focus of the eye changes from how it is focused on the road. This is the same dangerous behavior as navigating through contacts to make a call, the same behavior that the law doesn't cover.

Maybe there are some powerful Bluetooth lobbyists behind the scenes, but whether or not that's the case, tyrannical politicians will say that this law is great, because it will save lives. The law is intrinsically wrong though. It's a moral issue. Even if more lives are saved, the state is penalizing those who can safely make a phone call while driving. The person who crashes is at fault anyway, but if they can handle talking on a cell phone without crashing, let them! The state is violating their right to freedom, a right supposedly protected by the Constitution of the United States of America.

Saturday, July 5, 2008

Is calling someone an "illegal immigrant" progressive?

It's nuanced observances like these that add to the discussion about immigration.

E-mail joys

I resolved those e-mail woes that I was experiencing. I ended up adding all the accounts into the Gmail web interface. As long as the accounts are added in the web interface, you can set up in Apple Mail the ability to send from each of the accounts using only the one GMail account. Go to Preferences, Accounts, and in Account Information, list each e-mail address separated by a comma and a space. Then you can delete the other accounts that were already in Mail. Do this at your own risk though. If you don't archive all the messages in Inbox, Drafts, and Sent, Mail will delete them. I have an archival folder stored locally, so I just went ahead and dragged everything from those folders into the archival folder. I didn't do this for the first account that I deleted in Mail, so I had to go into Time Machine to retrieve those messages and put them back into the archive. Be sure to back up everything on Time Machine before you start to mess with any of this; I knew vaguely that some complications might arise, so I did that, and lo and behold, it was a good thing I did.

Anyway, not much changes with regard to how you have to use Mail. You can still select from where you're sending in the same way as before, but instead of the accounts being managed in Mail, they're all coming from the GMail account. This setup resolves the problem of not having access to multiple signatures for the accounts you manage in GMail, because you can do it in Mail. On the iPhone, you can't send mail from the different accounts with the one GMail account. You can't even send from GMail's default account. You can only send from the account named for the Google username. This doesn't bother me that much though, as I really only use e-mail on the iPhone to view new messages. I rarely reply on the iPhone, but if I need to, it doesn't bother me that it will be coming from the original address on GMail.

It's nice to finally be able to take advantage of that great feature of the web interface, to have it automatically reply from the account to which the incoming message was sent. It's also cool because this is IMAP, and everything synchronizes beautifully.