Seeds & Stems

by Bruce McEwen, April 14, 2010

Attorney E.D. Lerman got one guy off on two big felonies – cultivation in numbers beyond all medical reason and possession of marijuana for sale.

Mr. Marcus Newkirk pled out to accessory to the cultivation of marijuana, an infraction that comes with an informal two-year probation and 100 hours of community service, perhaps some puttering in the garden at the County Museum in Willits.

Mr. Newkirk was quite pleased. He should have been pleased considering his attorney had made two felony charges disappear and wasn't done yet. Ms. Lerman then asked that Mr. Newkirk be allowed to keep whatever amount of marijuana he needed for medicine.

"I'm not particularly concerned with Mr. Newkirk's comfort," Judge Brown drily observed but, yes, of course Mr. Newkirk can recover his meds in an amount to be determined by his physician.

All this and my meds back, too?

Mr. Newkirk and Ms. Lerman exchanged happy looks.

But Judge Brown stifled their merriment with a few terse words.

“Before we go any further,” the Judge said, “I need to consider having Mr. Newkirk remanded into custody.”

Brown’s bailiff was on her feet, her forefinger hooked under the snap on her handcuff pouch, anticipating the order to arrest Mr. Newkirk. Mr. N, it seems, had been tardy arriving at his court appearance; the hearing had started in his absence, and now, by law, the dull and time-consuming opening remarks of the expert witness would have to be repeated for the benefit of a guy who couldn’t get himself to court on time.

Ms. Lerman began an earnest sketch of her client’s unfortunate misunderstanding, the desperate accidents of phone tag, the vicissitudes of early spring weather, and so on.

Brown looked at the clock on the wall and said that if Mr. Newkirk would be so gracious as to spare the court a recitation of the witness’s credentials, he wouldn’t be hauled out to Low Gap Road. Newkirk magnanimously waived the formality and the judge took his plea.

Then Brown said, “I’m wondering if we can interrupt this proceeding. I’ve got a matter on for setting with some security issues.”

Mr. Newkirk and his co-defendant, Mr. Charles Webber, were only too ready to accommodate His Honor. They danced out the door to an early lunch and would be back that afternoon to complete their prelim.

The "security issues," aka Mr. Glen Sunkett, commenced.

* * *

When the 90th Space Wing moves a nuclear warhead from F.E. Warren Air Force Base in my home state of Wyoming to an outlying missile silo, the security is almost as intense as when the Mendocino Sheriff’s Office moves Glenn Sunkett from the Mendocino County Jail to the County Courthouse, a drive of about five minutes. Side streets are cleared before an EMT in a white lab coat and a medical bag appears and takes a seat in the far corner of the courtroom. Then a long file of the biggest corrections deputies on the roster, with a right tackle tightly grasping Sunkett by the sleeve, in the middle of them, enters. Obama doesn't have this kind of security. There were 12 deputies in the courtroom with Sunkett last Friday, most of them high-ranking officers; many more were out on the streets, some undercover.

The Air Force moves a Wyoming nuke with two Hummers and a Blackhawk helicopter.

Then Sunkett’s new lawyer, David Eyster, made his entrance. The prosecutor in this case, Chief Deputy DA Jill Ravitch, has returned to her home in Sonoma County to devote herself full-time to a bid for DA. Deputy DA Rayburn Killion filled in for Ms. Ravitch.

Sunkett’s former defense attorney was Public Defender Linda Thompson. Eyster, Sunkett’s newly appointed lawyer, was unhappy with Ms. Thompson. Thompson had been asked by the judge to give Eyster all the material she had on Sunkett’s case, including the file from his last trial. Sunkett had complained that Thompson had not given him the materials related to his case. Eyster confirmed Sunkett's complaint.

“What I got from the Public Defender needs to be gone through and organized. The file was not trial-ready and some of the CDs were blank. The crime scene photo file CD has nothing on it so, apparently, they’d never even looked at it. I need to go through these boxes and organize the file, and I’ll need some help. Again, I did not view the file as trial-ready when I got it. And I may need to review transcripts from the Marsden hearing.”

Judge Brown had ordered the Marsden hearing sealed. That was the hearing to deal with Mr. Sunkett’s motion to fire Ms. Thompson for incompetence, a motion Brown had denied.

Mr. Eyster is running for DA, and it doesn’t seem reasonable that he’d attack Ms. Thompson as part of his campaign, but he was clearly distressed with the condition of the boxes of so-called evidence he'd received from her. Eyster said he’d met with Sunkett and had given him an index of the material he'd received from the Public Defender, such as it was so far. Eyster said he and Sunkett had developed a working relationship and were meshing the materials with those previously possessed by Sunkett. Ms. Thompson had told the court that she’d already handed over everything pertaining to the case to Mr. Sunkett, which was untrue.

Mr. Killion had no objection to the request for more time and the Sunkett matter was calendared for May 7th for setting a time of the next hearing.

After lunch, Charles Webber and Marcus Newkirk were ready to finish up their prelim. Everybody was waiting for the judge. The lawyers were talking about seeds and stems. Mr. Webber’s lawyer, J. David Nick, an associate of Ms. Lerman, didn’t think the stems and seeds had much value as incriminating evidence. Deputy DA Brian Newman countered that the seeds could be pressed into a valuable kind of (presumably hash) oil. The whimsy of a spring day seemed to enter the courtroom as the judge burst from his chambers as the discussion moved to Webber’s greenhouse last May 19th when he and Newkirk were transplanting some seedlings outdoors under the clandestine surveillance of plucky Sheriff’s Deputy Jim Wells who was watching ‘em with his trusty binoculars.

Deputy Wells said Webber and Newkirk brought out four pot plants from the greenhouse and had planted two of them before the deputy interrupted these ancient rites of Mendocino County agriculture.

Newman is an asset seizure specialist whose job is funded out of dope busts. He asked the deputy how big a pot plant can get growing outdoors.

“I’ve seen ‘em 20 feet high with the same circumference,” Wells replied.

“How much processed bud would such a plant yield?”

“Objection," Mr. Nick said. "That’s the merest speculation.”

“Well,” Newman persisted, “how much would a six-foot-by-ten plant yield, then?”

“Objection. He’s not qualified to determine plant yield.”

“He’s familiar with ‘The DA’s Yield Study,’ your honor,” Newman pointed out with an air of authority. Newman might be the author of “The DA’s Yield Study,” a document the DA might consider publishing given the local interest in the subject.

“And I’ve heard Conrad testify,” Deputy Wells added with a challenging simper of self-assurance.

Chris Conrad is a pot expert usually called by defendants. The witness may have been toying with the defense, daring them to question their own expert, but nary a twinkle danced in the deputy’s eyes. Cops are experts at deadpan comedy; you can almost hear the drums and cymbals punctuating the delivery of their snappy comebacks on the witness stand.

“But this is all hypothetical, your honor,” Nick said.

Newman circulated some photos of the plants in the Webber-Newkirk greenhouse, shoring-up his hypothesis with something a little more down to earth. There were 50+ plants in the greenhouse, along with a box of bags and about 30 clones in the nearby residence. Also in the house, a loaded a pistol riding in a holster with a second magazine, ready to go.

If a cynic knows the price of everything and the value of nothing, Mr. Newman knows both. He knew the value of a gross of seeds on the floor of the futures market, abajo la mesa, the ameliorating value of smoking stems for arthritic miseries, all the thrifty little economies of pot production, and he didn’t want the People to lose a single red cent to negligent dismissals of things like shake, trim, seeds, stems… If there’s a market for cannabis roots, Newman would know what the roots were selling for.

Newman proceeded to do his thing.

“There’s the $3600 and the tax is $498.66. There was a check or receipt to Pete Peterson, for $36,000 – your honor, this pertains to a pending case.”

Mr. Nick asked the deputy if he’d made inquires as to Charles Webber’s income.

“Yes," the deputy replied. "He said he was retired, but still did odd jobs. He made about $2500 a year, he said.”

At the defense table, Mr. Webber parted his curtain-like dreadlocks where they cascaded between him and his lawyer to look full-face at Mr. Nick. The witness had perhaps intentionally misspoken himself, saying "hundred" instead of "thousand." Webber had admitted he had more weed than he needed, and Mr. Nick reminded the witness of this conversation about the excess weed.

"Didn't my client tell you he gave the rest away to other medical marijuana patients?"

"Well, yes. He said he smoked a joint in the morning to get going, one at mid-day and another in the evening to relax."

What about the 4:20 safety meeting? I wondered.

"Do you have an understanding of the word 'joint'?" Newman asked the deputy.

"I do, yes. On average, it's about a gram."

"Did Webber say the marijuana he possessed was in excess of his medical needs?"

"Yes. His response was he gave the rest to other sick people."

"Did you ask about cannabis clubs?"

"He did not want to answer that question."

Mr. Newman countered, "The rubric of growing medical marijuana is often used as a cover for sales. And he had a gun to defend the garden. The People have established a nexus."

Of criminal intent, it seemed.

Mr. Nick replied, "The prosecution has misstated the evidence. The plants were going to be harvested in one or two weeks. As for the marijuana being for sale, he said the excess was going to be given away. And as for the nexus of the gun, well, that's quite a reach from the greenhouse to the house, and I'd say the People have not met their burden."

Judge Brown studied the pictures of the plants and said, "These plants don't appear to be that healthy, and I don't know that they could reach six feet before harvest."

Brown continued, "However, I do find probable cause for the charge in Count I, cultivation of marijuana, and find the defendant guilty of a violation of Health & Safety Code 11358. But there's no Pay & Owe sheets, no scales, no processed bud, and the shake wasn't worth much. The defendant had an income of $25,000 a year doing odd jobs, and I'm not persuaded the marijuana was for sale under 11359. As for the special allegation of the firearm, I think it probably was kept available to defend the garden."

Arraignment on the information supporting the remaining charges was set for April 30th.

Newman didn't mention the seeds and stems.

* * *

Carlos Torres and Noel Lombera were facing felony charges of possession and transportation of crystal meth. Purists will complain that you can't get the real crystal meth anymore, but the three ounces these guys were caught with passed the "Nick Test" and Deputy Darren Brewster was called in to testify. His partner, Deputy Tim Goss stood by waiting, observing impatiently that there wasn't another patrol on duty between Potter Valley and Boonville because he and Brewster were in court. Deputy Goss attached his mike to the epaulette on his shoulder and monitored the transmissions from dispatch while Deputy Brewster took the stand.

A young lawyer from the Public Defender's office, Attila Panczel, a fellow who has taken particular exception to my reports in this paper, which he swears he doesn't read – strolled up to me and said, “Why don't you attack these two dirty pieces of shit in your paper?”

Which seemed to be a very unkind assessment of the two deputies.

Deputy Goss may or may not have overheard the remark, but I gathered by the way he stiffened, he'd heard Panczel's insult.

The Public Defender's office seems to think the AVA is responsible for the questions that continue to arise over Linda Thompson's job performance and the performance of the Public Defender's office generally.

I looked him over. Panczel's suit pants were four or five inches too long for his legs and he hadn't shaved.

"Did you lose your razor?" I asked.

"What! Don't you like my beard?"

"I don't much care about your new look, Attila," I said. "But there's a strange razor in my girlfriend's bathroom, and I'm curious about who's been checking her mail."

Panczel wandered off..

The defendants each had their own lawyer – a couple of guys I've never seen before – and each had a Spanish language interpreter.

Deputy DA Katherine Houston was prosecuting the case.

She began with the customary lob ball, "So, Deputy Brewster, you pulled the van over in the 7800 block of Highway 101, near the Hopland CDF Station. You asked the driver, Mr. Lombera, for his Driver's License and vehicle registration. He had neither a Driver License nor an ID. So you asked him to step out of the vehicle. Then you asked if he had any weapons or drugs. Did you search him?"

"Yes."

"Notice anything?"

"He smelled of alcohol."

"Did you contact the passenger, Mr. Torres?"

"I did, yes."

"And you searched him as well. Did you find anything?"

"No."

"Did you search the vehicle?"

"I did, yes."

"Find anything?"

"I did, yes. A pear-shaped package wrapped in duct tape, about the size of a pear."

"Did you at some point open it?"

"I did, yes. I did a presumptive Nick Test, and it tested positive for crystal meth."

"How much?"

"82.9 grams, approximately three ounces."

"Did you interrogate Mr. Lombera?"

"I did, yes, at the Sheriff's office, with a Spanish-language interpreter. He said Mr. Torres had given him the duct tape item to drive it from Sonoma County to Mendocino County. He stated he would be paid, but wasn't sure how much."

"Did you form an opinion as to why these individuals would have three ounces of meth?"

"I did, yes. It was for sale."

"Any chance it was for personal use?"

"I've never seen anybody with three ounces of meth for personal use."

One of the lawyers, a Mr. Muñoz, rose to cross.

"What attracted your attention to the van?" he asked.

"He was tailgating another vehicle," Brewster said.

"Did he respond to you in English?"

"Yes. When I asked to search him, he raised his arms. And when I asked to search the vehicle I told him that since he didn't have a driver's license, it would be impounded anyway. He understood. But it was clear Spanish was his main language."

"Did you open the duct tape package in front of him?"

"Correct."

"And he told you he didn't know what was inside?"

"Correct. But from my experience, somebody taking a package and hiding it in a vehicle and then saying he didn't know what it was or where they were going, well…"

"So then you talked to Mr. Torres?"

"Correct."

"And then you pulled a ruse on Mr. Lombera?"

"I did, yes. I told him Mr. Torres had spilled the, uh, beans, and confessed to everything."

"But you thought a lot of what Mr. Lombera told you was not true?"

"Correct. I thought he was lying, yes."

"How were you able to ascertain what was true and what was fiction?"

"Through my training and experience, and the evidence in front of me."

"Did you take the duct tape to the lab for latent prints?"

"That would be futile. If it's not a violent crime it would take years to get it back. In my experience, it would take a year and a half to get the results back. And that was before the budget cuts!"

"So the only evidence you have linking Mr. Torres is the testimony of Mr. Lombera?"

"That and three ounces of meth."

Judge Brown admitted that the case against Mr. Torres was thin, but he still felt there was enough evidence to hold them both over for arraignment on the information and he set the date for April 23rd.

* * *

I had some time to kill before my bus left so I went to visit a new guitar shop – the other two have gone out of business. There's still one down on Main Street by Safeway, but the proprietor's wife has cancer and he's rarely open. The new one is just north of the library, across the county parking lot, where New Dimensions Radio used to be.

It's called Hobo Guitars, and it’s operated by a great guitarist named Mike Zarkowski. Mike's been repairing guitars for over 30 years and started building fine guitars about 20 years ago. He felt the community needed a service-oriented store, so he opened shop and put an ad in the AVA. He has a terrific selection of hand-crafted guitars and also gives lessons. He also plays for three great bands: Red Bud, Tin Rooster, and The Gone Jack Rebels. Red Bud will be playing at Shanachie Pub in Willits, May 1st and at the Trade Winds in Fort Bragg, May 8th. Stop buy his shop for all your guitar needs and don't miss his up-coming shows. These guys can play!

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