Weed Whackers Win One
by Bruce McEwen, November 26, 2009
A Mendoland Pot Trial
The whisper came from behind me.
“How might one have an opinion on the facts witout having heard the facts?”
I looked up from jotting down Judge Henderson’s opinion to see the defense lawyer smiling.
Henderson’s opinion had been to the effect that “I find it hard to believe [defendant] wasn’t involved, even though there wasn’t sufficient evidence to convict. It’s just my opinion, of course, but I wanted it on the record.”
But there was enough evidence to convict the co-defendant: Jonas Green had 98 plants at one location and 214 plants at a different address in Willits. His lawyer cut a deal to get the felony reduced to a misdemeanor. Green would serve jail time and go on probation.
The defendant had plead out to the DA’s proposed disposition, which spared everyone the inconvenience of hearing the facts, but Assistant DA McMenomey proceeded to read the “factual basis for the complaint” in such detail that His Honor finally cut him off. “We don’t need to hear the minutia, counsel.”
However, Mr. Jayson Kain, 37, took his pot bust all the way to a jury trial.
The difficulty in seating a jury in Mendoland for a pot trial is well known.
Of 18 prospective jurors, six had opinions on the subject that they freely admitted were too intense for them to impartially hear the evidence. Some could only sputter their outrage that Mendocino County had come to this, this, this dope wonderland.
Six more prospective jurors were called.
Judge Henderson asked, “How many of you have strong opinions about the marijuana laws, specifically, cultivation and possession for sale?”
Five raised their hands, as muted laughter rippled through the room. Judge Henderson seemed as amused at the regional novelty as everyone else.
“Maybe I should start with you, sir,” pointing to the sole person who hadn’t raised his hand.
The man with no opinion on marijuana was a retired corrections officer.
It was unlikely that he was neutral on the subject.
Both lawyers — Public Defender Elizabeth Fowlds and DA Shannon Cox — attractive blondes in fashionable graphite and charcoal suits, went to work. They each had a crisp new file folder and a pad of Post-It notes. Arcane scribbles on these Post-It notes reminded each lawyer which jurors would likely see things their way.
The young defendant, Mr. Jayson Kain of Minnesota, far from home, far from the wheat fields of his native state, had come West in search of, well, appetite suppressants. He said he needed a half-ounce a day to keep him from diving into great vats of Cheetos.
It was a novel defense. Marijuana is known as an appetite stimulant.
Up in SoHum, where they roll the really big fatties, young Mr. Kain would be laughed out of town as a lightweight: He’d have been nicknamed Pinch, Pinner or Pinhead if he could only smoke half an ounce in 24 hours. Puny, they’d call him in Alderpoint, and it would stick!
It was left to Ms. Fowlds, defense attorney, to persuade the mostly female jury that her client needed a whole lot of dope to keep him away from the refrigerator.
The dapper deputy Darren Brewster was on the witness stand.
This guy probably knows more about the cultivation and sale of marijuana than the entire subscription list of High Times. Brewster could write a PhD thesis on the difference between Bubble Gum and Purple Cush. But he wasn’t about to lend his expertise to the defense.
“Deputy Brewster, are you familiar with the process of selecting certain strains to bring to maturity… and wouldn’t some of these immature plants be discarded, eventually?”
“No. They’re going to keep all they can, to get as much marijuana as possible.”
“But isn’t it true my client had a variety of different strains?”
“There are so many varieties and strains,” Brewster said with professorial calm. “I don’t know if I could even tell if they weren’t marked. The only way to really tell is if the plants are marked or tagged.”
“Were any of the plants tagged or marked?”
“And there’s no other way to tell the different strains?”
“In your opinion?”
“In my opinion.”
DA Cox for the prosecution.
“What is the outdoor grow season in Mendocino County?”
“It usually starts before summer and runs to late October.”
“And October 1st when the warrant was served — that’s the beginning of the harvest season?”
“Oh, yes,” Brewster agreed enthusiastically. In his tuxedo jacket with a satin collar and close-cropped haircut he could have been a celebrity bartender. The deputy obviously enjoys his work, and wasn't unconscious of his relative celebrity as an authority.
“But,” Ms. Fowlds said, “aren’t outdoor grows on the coast different, because of the weather?”
“It all depends on the grower’s personal grow style, the soils used, things like that.”
Ms. Cox asked, “Were the outdoor plants in good condition, ready to harvest?”
“Yes. The leaves were turning a lightish color, starting to turn, they’d been in the ground too long.”
Special Agent Robert Moore was called to testify. Moore had been in charge of the bust and served the warrant at 30530 Albion Ridge Road. DA Cox stood by the witness stand and showed photos of the property to Moore, asking him to describe the pictures.
“Yes,” he said, “this is the east bedroom, converted into a drying room with drying lines and plastic covering the floor. And this is the living room, converted into a trimming room with tables furnished with trimming scissors, the couch pushed out of the way and covered with plastic, grocery bags of trimmings, books on growing marijuana such as The Good Grow Guide, The Insider’s Guide, The Cannabis Grow Bible. Yes, and this is the garage converted into a grow room.”
“And the $3,227 in U.S. currency?”
“Yes. In the master bedroom.”
“Did you speak with any of the persons at the scene?”
“Yes, except for a child three or four years of age. I took Mr. Kain out to some chairs on the porch, away from the others. Standard procedure,” Moore said. “I Mirandized him.”
“Did Mr. Kain consent to speak to you?”
“Yes. We had a lengthy conversation. He said he was from Minnesota and had been at the location four months. He stated that the marijuana was his. He stated he did a grow there the previous year.”
“Did he tell you the state of his finances?”
“He stated he hadn’t been working, and was in extreme debt.”
“What sort of work did Mr. Kain do?”
“Some type of boating/skiing instructor sort of deal,” Moore replied.
The last time I saw Moore testify, he'd appeared against Mr. Sowers of Fort Bragg and Willits. On that occasion Moore, scruffy and disheveled, could have been a pot farmer himself. Today, he wore an expensive emerald suit and looked like a pro athlete. Turns out one of the prospective jurors knew Moore from a softball league. She called him Bobby; the prospective juror also knew Shannon Cox from the same league. The Weed Whackers, I imagined the team must be named.
“Mr. Kain stated he was separated from his wife? How long?”
“Four months, I believe he said.”
“Did he own the property or rent?”
“He stated he paid $1, 200 per month in rent.”
“Did Kain tell you who the other people were?”
“Yes. His sister and her boyfriend; the child was hers.”
“And why were they at the location?”
“He stated he had requested they come out from Minnesota to do the trimming.”
“Were they paid?”
“$500 in US currency,” Moore said.
“Did he tell you how many outdoor plants he had?”
“Yes. Twenty-five. With only nine remaining. The others had been harvested and were drying.”
“Did he tell you about the previous year?”
“Yes. He stated he’d contacted cannabis clubs about selling any excess marijuana. One in Oakland and another in Hollywood. He said the one in Oakland would sell the marijuana on consignment only, but the one in Hollywood paid $3, 000 up front.”
“Was he asked if he was going to sell any excess this year?”
“Yes. He was. He was asked that, yes. His response was he said he would.”
“Did you form an opinion?”
“Yes. It was for sale, a commercial grow.”
“Did he own a vehicle?”
“And reviewing his bank transactions, you found that he had twice rented a vehicle. Why is this significant?”
“It’s common for people who are transporting marijuana for sale to rent a vehicle for several reasons. If it gets towed, you’re no money out of pocket. Rental cars are less likely to have a light out or something like that to give law enforcement probable cause to pull them over.
“And did you check his PG&E bills?”
“Yes. $900 per month.”
“And the plants in the garage indicated a continuous operation, basically 60-day cycles?”
“Yes. With 50-60 starts all the way up through different stages of development to 50-60 plants ready to harvest.”
The prosecution rested, and after recess Ms. Fowlds went to work for the defense. She tried to undo the presumption that the sister and her boyfriend were there only as paid trimmers.
“You found no pay and owe sheets?”
“And there was nothing found of previous sales to dispensaries?”
“Now, as to his finances: Didn’t he tell you he won money at a casino? And that he’d bought a house with the money? And that money was from selling the house?”
Moore didn’t recall. Fowlds asked permission to approach the witness with a transcript. The judge smiled and assured counsel she could approach the witness without asking.
“He can take care of himself,” the judge assured her.
Ms. Fowlds took the transcript to Agent Moore. Moore looked at it vacantly. She pointed to a paragraph.
“Does that refresh your recollection?”
“And the bank account was also in his wife’s name?”
Moore didn’t recall. Fowlds approached with another document and again refreshed Moore's memory. A third page reminded Moore that the defendant had also recently sold a vehicle.
“Does any of this factor into your expert opinion — any impact at all?”
“No. I didn’t even know about the vehicle until yesterday.”
“Mr. Kain told you he uses marijuana?”
“Quite a lot?”
“As much as a half-ounce a day?”
“I believe it was.”
“I didn’t believe the statement.”
“But that is what he told you?”
“That is what he told me.”
“And when somebody has marijuana in various stages of development, couldn’t that be seen as a steady supply for personal use?”
“Not in that amount, no. Five or six plants, sure. Not 240.”
Ms. Cox asked if anything defense had said changed the witness’s opinion.
When the jury left for lunch, the judge asked if the defendant was going to testify. Ms. Fowlds said he would, but before the jury returned Mr. Kain had changed his mind about testifying. His story had major probs. His relatives had come all the way out from Minnesota to trim pot so he could smoke it? There were other implausibilities, and prosecutor Cox is no dummy. Neither are juries.
Kain took the guilty verdict well enough considering that his prospects for a merry Christmas were now nil, and his annual New Year’s resolution to keep his weight down with half an ounce a day was going to be tough to keep.