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Trial By Ambush & The Stealth Juror

Kim LaValle
Kim LaValle is contending with the legacy of one of the county's most legendary growers.

It was the first pot case to go to jury trial in years, and the views attending it were predictable. The first juror called said, “In my opinion, no pot case should be in court — it’s a waste of time and money.” The next one said, “It had better be something pretty extreme to justify all this trouble.”

The case wasn't extreme; it was fairly routine. Eight pounds of pot travelling down 101 to the pot-hungry Bay Area. A couple of years ago, any of the junior prosecutors in the DAs Office would have handled it. But that was before the legendary Laytonville grower Matt Graves was acquitted almost three years ago for presiding over one of the biggest, if not the biggest, grows on the Northcoast ever. The forces of law and order had the elusive Graves cold, but Graves, dapper and smiling, sauntered out of court a free man.

Never again, vowed the DA.

Sure, this thing was only an eight-pound case, but it was being defended by one of pot world's heavy hitters, David Silva, and maybe it's time we showed these people some teeth.

Mendocino County DA David Eyster wasn't about to hand this one off. Architect of “the most progressive marijuana policies in the state,” he'd do the eight-pounder himself.

The progressive pot policy, by the way, is progressive. If the pot person pleads out, the DA will fine him, tag him with a misdemeanor and put him on probation. That way, the County of Mendocino saves itself the expense of a long legal process and makes a little into the bargain.

However, Eyster said, “A lot of folks are beginning to think there are no rules, that anything goes, and that this is the wild, wild west when it comes to marijuana. It’s not. There are rules, and the rules must be followed or there will be consequences.”

One rule is 11360 of the Health & Safety Code, which says transportation of more than an ounce (28.5 grams) of marijuana for sale is illegal.

This was the charge that Kim LaValle was facing all last week, and she'd been nailed with a lot more pot than an ounce. And when she was found guilty by the jury on Friday afternoon, you’d have thought she’d been given the death penalty judging by the piteous howls of grief and outrage erupting from her supporters in the courtroom.

The local ‘marijuana community,’ of course, is as sanctimonious as any sect of religious fanatics anywhere. Many people hereabouts have made tidy little fortunes growing weed, and money, however you might make it, has always had a self-vindicating effect on the human ego. "I do it, I'm good, how I make money is therefore also good." It's no surprise then that enforcement of a law designed to curtail commercial pot sales will be taken as a “war crime” against the selfless growers “just trying to relieve some of the suffering in the world.”

Ms. LaValle’s defense was the martyr's defense. She was just trying to help with pain relief.

The trick in pot cases, for the prosecution anyway, in pot-saturated Mendocino County, land of intoxicants, is to keep pot people and pot symps, off the jury. DA Eyster refers to these cannabis fifth columnists as “stealth jurors.”

Another problem the DA has in pot cases, he says, is “trial by ambush” — the defense trying to keep certain evidence secret from the prosecution to spring it on the jury at the last minute, leaving the DA inadequate time to prepare a rebuttal.

The attempted ambush on behalf of Ms. LaValle backfired on the defense, and went a long way to discredit the famed defense attorney, James M. Silva, a former professor of marijuana cultivation at Oakstersdam University in Oakland.

The defense was supposed to give the prosecution a list of their witnesses. This the defense did not do. The names the prosecution were given were misspelled, and the individuals on the list had slipped off to Connecticut where, it was said, they couldn’t be reached. The intention of the Connecticut gambit was that the DA and his investigators would be unable to run a background check on these characters and find out whether or not they were credible. One was Carrie Brekenevski — or some-such name, the true name was never really known, even perhaps to the stoner herself. The other, Bruce Rossignol, was so stoned when he took the stand that he blurted out that Mr. Silva himself had set up the supposed-cooperative/collective that the defendant later claimed she was running the marijuana for.

These revelations occurred during a 402 hearing, outside the presence of the jury or else it would have turned out worse for defense than it did.

Rossignol typified the smug, superior, hipper-than-thou sanctimony that has given reputable growers a bad name. Ultra-cool in his “homegrowninmendocino” hoody, and with a girlfriend who fluffed his hair like a cosmetologist on a movie set, Rossignol exuded a positively aristocratic disdain for everyone in the room, even Mr. Silva. He loftily informed the court that Mr. Silva worked for him, much to Silva’s embarrassment, not to mention the risk of Silva's standing as an officer of the court.

Following Prince Rossignol's imperious performance, Silva wisely decided not to use either Rossignol or Princess Dim as witnesses. They were both liabilities, not only to the defense of Ms. LaValle but the whole medical marijuana cause. They put it right up there in the clouds of pot smoke where Mendocino County's stoner royal couple, M’lord Ukiah Sativa Morrison and her Ladyship Callie Ash dwell.

The first witness was CHP Officer James Scott. He'd arrested Ms. LaValle on January 11th of 2011. He'd pulled her over for speeding. Locals know the speed limit is only 55mph through the “high collision corridor” between Ukiah and Hopland, but many drivers don't notice the signs announcing the downward legal speed that begins at the foot of Burke Hill at the south end of Ukiah.

Ms. LaValle, Officer Scott soon discovered, had no insurance card, no vehicle registration, and the officer could smell the marijuana, which was boldly resting in a black trashbag on the passenger seat of Ms. LaValle’s pickup.

“Do you have any marijuana, Ms. LaValle?”

“Just a little, officer.”

Eight pounds in individual turkey bags and, no, she didn’t have a 215 card. And no registration, and no proof of insurance, and a felony amount of for-sale marijuana in a careless garbage bag sitting beside her.

“Where are you coming from?”

“Laytonville.”

“Ah, Laytonville.”

Which explains not quite everything, but almost.

At this point, Officer Scott recalled, Ms. LaValle broke down and commenced a sad story about how she had been hurt by the economy and was about to lose her home, and how she’d risked everything on a marijuana deal. Which is a true story that can apply to many people who get into the drug business in a county and a country perennially short on legitimate employment.

“Yes, I’ve been doing some landscaping for Bert and Ernie and they paid me with this marijuana. I hope to sell it in San Francisco and save my house.”

“Oh? Bert and Ernie who?”

“I dunno…”

“Do you have an address or phone number for either Bert or Ernie?”

“No.”

“Okay, if you’d just step out of the car, please, and stand over there…”

Officer Scott took Ms. LaValle to the CHP office in Ukiah where Ms. LaValle continued to talk about how she hoped to put the marijuana on consignment at a Cannabis Club on Howard and 11th in the city — a pot club defense attorney Mr. Silva had set up, it turned out.

By then, Officer Scott was at the end of his shift and Ms. LaValle was turned over to the CHP’s drug expert, CHP Officer Robert Simus (pronounced Psimus; not Sí—mas!) who used to be with the Mendocino Major Crimes Task Force. As a full-time narc, Simus wore his hair long and grew a goatee. At least that's what he looked like when I saw him at the Emerald Cup in Redway last December, that is. Since then, he has been barbered and close-shaved like a regular cop.

It was Officer Simus who examined Ms. LaValle’s cell phone. On it, he found evidence that she’d long been engaged in commercial marijuana sales. References to OG (old gangster) and NY sour (sour diesel) and other designer strains of marijuana were on the phone, along with the names of other dealers.

There were many lessons to be learned here, but pot dealers are a stubborn lot and generally consider themselves too clever and crafty to need any improvement, so the lessons will go unheeded. But lesson one would seem to be that you don't drive around with a big bag of pot on the passenger seat and you don't keep the names and phone numbers of your network on your cellphone.

“If these were not commercial sales, for profit, then why would there be all these references to ‘customers’ rather than ‘patients’?” Eyster asked the jury. “At no point in these messages is the marijuana ever referred to as medicine, nor the recipients called patients.”

“Product” is the term currently in vogue, much to the disgust of medical pot purists.

A text message on LaValle’s phone from an entity called The Philly Ghost Prowlers said something like: “My customers don’t want any more of the OG or NY sour. It doesn’t have the same smell. Got customers to deal with but only if it’s the same smell, look and quality. No more OG or NY sour. OK, the jerk [is this how you refer to a patient?] is gone, but I hope you hear me on the OG.”

Ms. LaValle had apparently answered that she had 10 pounds ready to go with the desired smell: Bubba Kush, a popular Laytonville designer strain nurtured with yardbird droppings. The current craze is for bunny pellets or rabbit droppings with C. indicus from the Hindu Kush — Mendo Purple, they call it dismissively in SoHum. But it has a distinctive smell and the courthouse was reeking with it as the DA’s investigators brought in a dufflebag full from the evidence locker room.

This message was on LaValle’s cell phone: “I’ve got 10 ready, call with the addresses.”

If pot growers and dealers can’t tell themselves whether or not they’re working with a prescription medicine or a commercial designer product, how can they expect law enforcement to tell the difference?

DA Eyster said, “This is not the language of medicine; it is business, for-profit, language."

Defense put on a Mr. Donato to say that Ms. LaValle was his primary caregiver, and that the eight pounds were intended for him. Actually, Mr. Donato took the stand twice. Once in the 402 hearing; and then again when the jury had assembled. The 402 hearing is held to let the judge see if the testimony will be suitable for the jury. Mr. Donato acquitted himself with considerable more grace and style than the unfortunate Mr. Rossignol had during the 402, and was therefore allowed to testify before the jury.

Ms. LaValle had told CHP Officer Scott she had been driven to drug sales out of fear of losing her home. Mr. Donato said under oath that Ms. LaValle had moved him into an apartment in her house, free of charge!

“She’s just a really nice person,” Donato said, by way of explanation, when asked why she would do this for a casual acquaintance, a patient of hers. Mr. Donato said he was on disability and that he had HIV/AIDS, and wanted to move from his mother’s house in Santa Clara to be closer to Ward 86 at San Francisco General Hospital, where he felt he could get better treatment than had been available at the Santa Clara clinic he had been going to. So he and his domestic partner moved into the apartment in Ms. LaValle’s house where they lived free of charge.

Not only did LaValle give Donato and his partner free rent, but as his primary caregiver, she drove him around San Francisco to do his shopping and attend his appointments, and whatever else he needed. Moreover, she supplied him with marijuana, which, he said, he would never be able to afford but for Ms. LaValle's charity.

This was the testimony that was to justify the transportation of the eight pounds and it is easy to see how it failed. What is difficult to see is how such a simple case took an entire week in court. The explanation is that every scrap of evidence was contested, every sentence objected to, every question and every answer challenged. By both sides. It made for slow progress, and in the end only proved what the first juror had said at the beginning: It is a waste of time and money to bring pot cases into the courts.

The jury wasn't out long, and they found Ms. LaValle guilty as charged.

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