Living With Pain
by Bruce McEwen, March 30, 2016
Marijuana is a proven painkiller, and that is why Californians voted for the Compassionate Use Act in 1995, to ease intractable pain. But a joint is only a mild analgesic, at best. It does little to assuage the horrendous pain of losing over 600 pounds of prime Mendo purple at the end of a terrific growing season. It really hurts to get busted that hard, and you could see that kind of agony on 24-year old Blaine Harper’s face at his preliminary hearing last week.
On October 26th the Task Force swooped down on Mr. Harper’s residence at 4900 Burke Hill Road south of Ukiah and confiscated 64 mature plants, about eight-feet tall, weighing approximately 10 pounds each. Harper’s hard working crew of trimmers all made a run for it, but the County doesn’t prosecute low-level pharm laborers any more, so the only one arrested was Blaine Harper himself, although some of the others must have shared his pain — especially when Ukiah Police Officer Chris Partlow of the Task Force seized $13,000 in cold hard cash Harper had on hand, some of which was probably meant to pay the trimmers.
Partlow also found other signs that the marijuana had been grown for uses other than the strictly medicinal. There were scales and packaging materials, along with the rudimentary accounting forms used by pot dealers — what’s called pay-and-owe sheets. Moreover, Partlow said Harper admitted that he was hoping to sell the marijuana for $1200 per pound. It seemed to Partlow that the marijuana Harper had was definitely intended for sale, and Harper’s goal was to make a profit.
With so much evidence against him, Harper hired the renowned cannabis defense lawyer, Omar Figueroa of Sebastopol, who immediately challenged Officer Partlow’s knowledge of marijuana. Mr. Figueroa does this in a way that truly exasperates law enforcement officers. He starts, for instance, by asking cops to go into detailed descriptions of the plant, as if they could easily mistake marijuana for alfalfa or spinach.
“Well, Officer Partlow, tell me this, then, how did you know these plants were cannabis and not some other type of vegetation?”
“Because I’ve seen marijuana hundreds of times.”
“Yes, but did you chemically test these plants to determine if they were actually cannabis?”
“Ah. So you are not — that is, you can’t be (because you didn’t test it) — absolutely sure. And when you say ‘marijuana,’ are you referring to a certain genus and species of plant, or perhaps some other thing entirely?”
“No, I’m talking about marijuana, the stuff that people smoke to get high.”
“Ah. And does everyone who uses this substance you call ‘marijuana’ smoke it to get high?”
There is a lot of pseudo-scientific cant in the pot pharm community regarding which terms are considered appropriate in referring to the miracle drug and which are slurs intended to cast aspersions on its sacred status among those who use, grow and market it. At the high end we have the euphemism “medicine” and in descending order it goes down from there to “cannabis” (most authoritative usage), “product” (popular with your second and third generation growers), “weed” (street slang), “grass” (archaic), “pot” (slang graduated to common usage), “marijuana” (coined by the FBI at the outset of prohibition), and, the most disparaging of all, “dope,” a generic slur devised to demean any drug. Without getting into foreign language terms like “ganja” (Carribean), “mota” (Mexican), “pakalolo” (Hawaiian),” and “reefer” (coined in the 1920, origin unclear), it’s easy to see that “marijuana” is not favored by adherents. Figueroa is sensitive to his clients’ language preferences.
“Have you ever heard the term Cannabis indica, Officer Partlow?”
“Yes, I’ve heard it.”
“Do you know what it means?”
“It’s a kind of marijuana.”
“What about Cannabis sativa. Ever heard of that?”
“Yes, it’s another kind of marijuana.”
“And you were told this by those who trained you?”
“Yes, that’s correct.”
“What about Cannabis ruderalis?”
“No, never heard of that one.
C. ruderalis is a species of cannabis which originated in central Russia.
“Did you make any attempt to classify the cannabis species you found at my client’s residence?”
“No, I did not.”
“And do you have any training in botany?”
“No, I do not.”
“So you don’t really know whether this was in fact cannabis or not, do you, Officer Partlow?”
It’s easy to see why the Task Force cops do not like Figueroa, but by the same standard, this is precisely why he’s so popular with the people they bust. Partlow was not going to have his case tossed out because he wasn’t a scientist, so Figueroa’s grilling on technical particulars wasn’t effective in a legal sense; however, it did provide some satisfaction for the aggrieved Blaine Harper to watch his antagonist steam up under the lawyer’s interrogation.
But Harper had a bigger problem. The doctor who issued Harper’s Prop 215 recommendation for medical marijuana hadn’t, for some reason, signed it, and it was therefore useless. Defense attorney Figueroa wanted a court order sent to MediCann on East Perkins Street in Ukiah demanding a signed document.
Judge Ann Moorman said, “Even if I had that [215 card] it wouldn’t negate the overwhelming amount of marijuana found at the residence, so much that the officer said he could hardly move around and keep track of it all, and with 347 pounds of it marketable —which was only half — I don’t think it was being grown and used for medical purposes, so I’m gonna hold the defendant to answer. Let’s bring this back on April 8th for arraignment on the information, at nine o’clock.
The pained expression on Mr. Harper’s face only got worse as he left the courtroom, in search, perhaps, of something a little stronger than a joint.
* * *
Judge Moorman then called the case of Denise Fleming, of Hopland. Ms. Fleming had been busted with seven vials of another miracle drug, butane honey oil (BHO), which is made, illegally, from marijuana shake — or, if you prefer, cannabis leaves. She was also charged with cultivating marijuana in excess of Mendocino’s 9.31 ordnance and the Sheriff’s ziptie program. She had 55 plants, besides the seven vials of BHO.
In the past few years there’s been a literal explosion in BHO labs. Until recently, literally really meant figuratively, and “a literal explosion” in a certain cottage industry meant it was becoming widely popular. But Butane Honey Oil labs frequently explode in houses and apartments, blowing the windows out, setting the place on fire, and sending an “epidemic” (in the words of the Senior Burn Surgeon at both local inland hospitals) of burn victims to the UC Davis Burn Center and Shriner’s Childrens Hospital.
The Task Force officer in charge of Ms. Fleming’s bust was the recently promoted Sergeant Peter Hoyle, who has just entered his 40th year as Mendocino County’s premier drug warrior. Hoyle is now busting the grandchildren of people he busted forty years ago.
Sgt. Hoyle actually groaned as he made his way to the witness stand to endure a tortuously tedious cross-examination by Mr. Figueroa. For whatever consolation it’s worth (and his clients must think it’s worth a lot, because he isn’t cheap), Omar Figueroa makes the Task Force narcs cringe — not in fear, of course — but in dread of the tedium, the monotony, the exasperating annoyance of his insinuations that they don’t know beans about marijuana — oops, I mean cannabis.
“So, Detective [sic] Hoyle, please tell us, what are your qualifications for identifying the plant you call ‘marijuana’?”
“Well, lemme see. I’ve been a police officer for 40 years, and in that time I’ve bought and sold marijuana hundreds, if not thousands, of times; I’ve grown marijuana, and seen it in all it’s stages of development — and not just as the maturing of specific plants — but also as it has developed and changed as a local crop — evolved, I guess you’d say — over the years into more and more potent strains. I’ve harvested it, dried it and trimmed it, bagged it and weighed it, stored it and burned it, and buried it in the ground. On top of that, I’ve eradicated more marijuana than most people have ever even seen.”
“Do you know what Cannabis indica is?
“I do, yes.”
“Please describe it, then, Mr. Hoyle.”
“It’s usually a shorter, squatter, more broader-leafed marijuana plant.”
“And what about Cannabis sativa, can you describe that as well?”
“Yes, I believe I can.”
“Do you know the genus and species sativa refers to?”
“No, I don’t believe I do.”
“What about taxonomy, do you know what that means.”
“I don’t, no.”
Omar Figueroa delights in the secret language of academe. I close my eyes and, wincing, recall a quote from Robert Fisk: “Keep Out, these words seem to say. This is something you are not clever enough to understand.” The retired war correspondent Fisk put it succinctly, “I think [using big words] is all about snobbishness.”
Figueroa then asked Hoyle if he'd studied botany.
“Nothing more than a high school science class, which I really don’t recall.”
“So, you are not a botanist, are you Sergeant Detective [sic] Hoyle?”
“I’m not, no.”
It’s easy for a lawyer to make an ordinary layman or a police rookie feel inadequately educated when he’s on the stand surrounded by lawyers in suits and the other trappings of academic snobbery, but a cop of Hoyle’s experience is not likely to be intimidated or embarrassed in that way. The fancy language parsing and snooty implications of trained and untrained botanists didn't roil the veteran cop in the least. Hoyle didn’t get irritable, defensive, or snappish.
Figueroa then tried to wear Hoyle down, by having him spend close to half an hour describing the details of the plants in question.
Still no luck. Cool as a cucumber.
Hoyle seemed at ease, thankful for a chance to relax and chat in a comfortable courtroom, rather than sweating it out, swinging a machete on a marijuana plantation, laboring like an Alabama sharecropper.
After talking all this time — and at times, almost lovingly, about marijuana (after all, his whole professional life is wrapped up in it) — Sgt. Hoyle stepped down inconclusively, as the lawyers say, and Deputy Jim Wells took a turn on the stand, muttering disconsolately about how he’d rather be sitting down for a root-canal.
The smiling Figueroa arranged his pointy instruments. His object was to establish that his client, Ms. Fleming, was out of town when the honey oil was being brewed at her house. It was an important distinction because, while it is illegal to make the stuff, it’s perfectly all right to possess it for medicinal purposes under Prop. 215. As for the 55 plants, Fleming was asserting that only 25 of them were hers. Her wicked old house-sitter, presumably, had made the honey oil without Fleming’s knowledge or approval.
The trouble was, there were cases and cases of butane, a dozen here, 96 over there — what for?
Figueroa had the answer, but he posed it as a question.
“Isn’t it true that there was a butane lighter found?”
“Wull, yeah,” Wells chuckled nervously, leery of some kind of trap masquerading as a joke. “Yeah, there was a lighter, but geez, only one little can of butane would’ve kept that thing charged for years to come.”
“Yes,” Figueroa countered. “But wasn’t it a vape gun?”
“What’s a vape gun?” Judge Moorman demanded, as if she was the only kid on the block who’d missed out on her neighborhood's latest vogue.
“It’s a new way of firing up a bong,” Wells said. "The butane heats a coil and a fan comes on and blows the heat out, so there’s no flame.”
The Judge looked like a person who'd just enjoyed an education moment, although Figueroa was shaking his head at the witness’s explanation. Wells' forthrightness made it obvious he was up to the minute on developments in the wonderful world of dope. Figueroa merely asked Wells if it wasn’t a good way to save money by "buying the butane in bulk?”
Deputy Wells admitted it was, and tried not to laugh at the idea of buying a pallet of fuel for a single cigarette lighter. He started to add that the amount of butane they'd found would keep the vape gun refueled into the next century — but, that’s called unresponsive and he was cut off.
The Defense had a witness, David Jones, an environmental safety specialist from Santa Clara and a friend of Fleming’s. Ordinarily, a person with those qualifications would have condemned the BHO lab for the product's known carcinogenic content, not to mention the fire and explosive hazards of the manufacturing process. Anyhow, Jones took the stand to say that he’d tended to Ms. Fleming's dog while she was away on vacation, first to her parents in the Midwest, then to Mexico. Ms. Fleming had not been at home, Jones said, while the honey oil was being produced.
Judge Moorman wasn’t convinced. The amount of butane, both empties and full canisters, she said, made it unlikely that Fleming’s absence was the only time BHO was made on the property, and Ms. Fleming was held to answer. Moreover, until Fleming could show compliance with county regs on the pot grow, she’d be held to answer on that charge as well.
Both these cases were painfully tedious for everyone involved except, perhaps, District Attorney David Eyster, who scarcely said a word through both hearings. He'll soon be playing Let's Make A Deal with both defendants, and he knows now that it will be his deal, not theirs.