Tuesday, August 5, 2008

Lynch Trial Update: Monday, August 4

Cross posted to reason.tv

Monday was the final day of the evidentiary portion of the trial. Judge Wu had decided over the weekend that Lynch’s lawyer from Atascadero could not testify as to how Lynch had indeed described to him the phone call to the DEA.

This was Wu’s first federal trial. George W. Bush recently appointed him. Throughout the trial, Wu promulgated a troubling fallacy that often shows up in news media: presenting two sides of a debate equally and implying that the truth lies somewhere in the middle. Wu did not grasp that fairness may objectively favor one position. From Wu’s simple-minded attempt to act fairly, he acted blatantly unfairly.

The court reviewed jury instructions, until the defense called Debbie Beck to the stand by the defense. Although Wu and the prosecution did not allow her to give any background as to who she was, some members of the jury picked up from her last name that she was Owen Beck’s mother. Debbie recounted that she had certainly been in Central Coast Compassionate Caregivers, but not as a patient. She explained that the CCCC made her fill out paperwork and show identification. She verified a document that she signed, which might have been difficult because the government blacked out the entire page, except for a few lines that included her signature. She talked about her understanding that she was allowed to grow up to six plants. She didn’t grow any plants, but her son tried to grow four, even though he was too sick to tend to them. When she mentioned her sick son, Kowal objected, and surprisingly, Wu overruled.

The defense called Nina Paulino to the stand. Just as Debbie, she identified a ridiculously blacked-out document that had her signature on it. She testified that the maximum amount of plants that she was allowed to grow was six, but she only grew one that did not survive.

Wu dismissed the jury to further deliberate about jury instructions. The government mentioned jury nullification in the context of a warning in case the defense tried to bring it up in their closing argument.

After lunch, Wu instructed the jury. He repeated the indictments, including conspiracy, distributing over 100 kg of marijuana, distribution to persons under the age of 21, and cultivating more than 100 plants. The jury needed to convict beyond a reasonable doubt. Unfortunately, entrapment by estoppel as a defense would not cover the count of distribution to minors.

The prosecution and the defense gave their closing arguments. The government would give an opening closing argument, followed by the defense’s closing argument, and finally the government’s closing closing argument. The government was allowed two arguments and the last word, Wu explained, because the high burden of proof was on government.

Rasha Gerges, the female prosecutor, delivered a painfully monotonous opening closing statement. She droned on about the five counts. She described how entrapment by estoppel should not apply. She tried to poke holes in Lynch’s account of the phone call to the DEA by referencing Reuter’s nonsensical testimony, and concluded that Lynch acted purposefully to break the federal law. Could any sane juror believe this? Gerges repackaged the same nauseating arguments with an atrocious PowerPoint presentation that showed slide after slide crammed with text on a hideous background. This pathetic sidekick of a maniacal hothead failed not only at presenting anything of substance in any new valuable way, but also failed at keeping the courtroom awake or attentive.

John Littrell delivered the defense’s closing argument. He engaged the jury by naming the defendant, Charlie Lynch, reminding them that the defendant was not some abstract idea to argue about, but a real person whose fate rested in their hands. Littrell recalled that Charlie opened a place of business called the Central Coast Compassionate Caregivers, which provided safe access to medical marijuana. Charlie opened under the blessing of his community, his mayor, and the chamber of commerce. He ran a tight ship. Littrell instructed the jury to examine the white pieces of paper that the government had hid from them in open trial, the instructions stapled to all products purchased from the dispensary.

Littrell reviewed how Charlie did his research, and went through great lengths to call the DEA, and that Charlie relied on that information, since the phone number on the phone bill after the call to the DEA belonged to the city of Morro Bay. Charlie had contacted the city attorney, Rob Schultz. Littrell asserted that Schultz decided it was in the best interest of the community to allow Charlie to open. Charlie bought a nice frame displaying his business license, and displayed it in his window until Special Agent Burkdol booked it into evidence. Lynch followed all the rules, and never did anything until he got permission.

Littrell elaborated on big problems with the government’s case. Blank left out an important detail in his testimony, but it came out in the cross-examination. Blank used a real physician’s recommendation to purchase marijuana as an undercover agent. Why would an undercover agent already using deception not just fabricate a physician’s recommendation? The answer is simple. Charlie verified every single recommendation with a phone call to the physicians.

Littrell emphasized that the decisions the jury was about to undertake were huge decisions, decisions that would affect life as much as buying a home, deciding who to marry, who to leave with young children. He used a brilliant analogy to define reasonable doubt: wondering if the oven is on while pulling out of the driveway for a weeklong vacation. Burkdol’s poor math skills and revealed incompetence would not provide evidence beyond a reasonable doubt. The sheriff’s department’s unjustifiable behavior, such as following Lynch’s customers home and looking in their windows showed problems with their testimonies, considering their underlying incentives. He reminded the jury that it was crystal clear that Lynch had nothing to do with Abraham Baxter’s parking lot dealing.

Mercenary informants, Littrell spelled out, criminals who worked for tax dollars, are a despicable caliber of people to rely on for undercover work. Could their tips be accepted beyond a reasonable doubt?

Littrell discussed the prosecution’s repeated objections, objections raised because they felt threatened by information about who Charlie is. Charlie researched the laws as a layperson, and sincerely wanted to follow them. Littrell reminded the jury that Lynch never had to testify, but after choosing to do so, endured the cross-examination. Kowal abused him, shouted at him, and in spite of this, Charlie did not make up a self-serving story. He often replied honestly to Kowal, “I don’t know.”

Littrell discussed that Reuter received hundreds of calls per day, that it was a drag to receive questions from the public, and that it did not matter to her to testify that she did not remember a call from Lynch. How would it make her department look if she admitted her own inconsistencies? Littrell dissected Charlie’s motives for calling the DEA. Why would he make these calls? Would he really want to lay a framework so that he could freely break the law, and as a backup, for the chance that he got caught, would rely on a rare, esoteric defense, entrapment by estoppel? If he wanted to lie, couldn’t he have come up with a better one? The standard of proof regarding these calls, clarified Littrell, would not be as high as proof beyond a reasonable doubt. Preponderance of evidence is quite a low level of proof, only more likely true than false, just 51%. Preponderance of evidence would be a decision on par with choosing to take the surface streets or the freeway.

Reuter must have known what was meant by “medical marijuana dispensary,” argued Littrell. Charlie relied on that information, because his next call was to Morro Bay. Was his reliance reasonable? He had the blessing of the city attorney. Charlie received no phone calls or letter from the sheriff’s department to stop. During Kowal’s cross-examination, Charlie conceded that in hindsight, maybe he should have shut down after the raid, but he chose to remain open because people were depending on him.

After attempting to bring up the San Luis Obispo Sheriff’s statement on television after the raid, Wu interrupted Littrell for a sidebar. After a few tense moments, Littrell continued on, explaining that there were two ways to find Lynch not guilty, on the fault of evidence, or by entrapment by estoppel. The former reason should have been enough considering the government’s poor quality of proof, and the defense had already solidly laid out the case for entrapment by estoppel.

These decisions were for the jury to decide. Although the federal government attacked Lynch like a freight train from D.C., and although Lynch had withstood the abuse of the government, Littrell explained that the government would not decide the guilt or innocence of Lynch. The jury would.

The Magna Carta, Littrell continued, was the source of the Tenth Amendment, and again he emphasized that the jury would decide this man’s fate. At this, Wu interrupted Littrell again, and barked that no emotion was to be factored into the jury’s decision. Littrell attempted to clarify that the jury’s decision should be a conscientious decision, and Wu cut him off yet again.

Kowal delivered his closing closing argument. He furiously ranted about what he perceived as pressure from the defense to ignore jury instructions. He encouraged them not to rely on sympathy. He asked rhetorically whether it would matter if they thought Lynch was helping sick people, and answered himself with a handwritten “NO,” displayed on the projector. This prompted some inappropriate laughter from the public. In the tone of a dictator, Kowal ordered them to convict Lynch based on the law, that the medical case for marijuana was irrelevant, and that the defendant knew what he was doing was illegal. Kowal completely failed at restraining his terseness and abusiveness, as he again tried to cast doubt on the content of the DEA phone calls. He claimed that Lynch knew about other raids going on. Kowal ended by telling the jurors that to convict Lynch, they did not need to like the San Luis Obispo Sheriff’s Department, Fontecchio’s haircut, or the federal marijuana laws.

Charlie Lynch’s fate is now in the jury’s hands.

For information on how to contact your elected officials, please go here or here.

Check out previous coverage of the trial for Friday, Monday, Tuesday, Wednesday, and Thursday, and Friday, August 1 , as well as a video update and CNN's piece about the trial . If you haven't seen it already, watch Raiding California for context leading up to this trial.

Lynch's supporters can join the Free Charlie Lynch! Facebook group.

Stay tuned.

1 comment:

Nicole said...

Wow, I really hope that the jury was convinced by Littrell's arguments.

Too bad about Wu's fallacy there about "fairness." You can see that in articles about science and pseudo-science all the time, too. But I didn't imagine a judge falling prey to that.

I wonder if this has something to do with how controversies are presented in schools when teachers don't want to offend anyone? Or does this come straight from the media's need to present controversies in the news?