Ken & Barb Do Jail

A couple who looked right out of Ranch & Coast Magazine were on their way to Mendocino County's overcrowded jailhouse for growing marijuana.

Bob and Daisy Gwin, whose home base is San Diego, had been busted here in Mendo with a couple of hundred pounds of processed bud, a few hundred more plants in their drying-shed, and a new crop coming along swimmingly.

Only their clients in San Diego know how long the Gwins have been shaking the Mendo money tree, but how the couple's misguided enterprise got underway in the first place is even harder to fathom, since both a fairly extensive knowledge of the pot pharm business and a large capital investment in indoor grow gear is required. The Gwins' operation certainly bespoke an elevated level of experience in cultivation and distribution.

But the prim and well turned out defendants — think Geena Davis and Alec Baldwin in Beetlejuice — had, their lawyer said, “learned their lesson” post-arrest. Which native Mendo growers know as "I'm very sorry for getting caught."

“Oh the shame, Your Honor! The humiliation and embarrassment! This has been an extraordinary ordeal for my clients,” Katherine ‘Kit’ Elliott of Ukiah exclaimed to Judge Ann Moorman in positively Victorian exhalations. “The Gwins are so very ashamed of all this!”

The defense appeal was a class appeal. Don't pack nice middleclass people off to the grubby County Jail where, well, shudder-shudder, your honor, you, as a nice person, can certainly understand why we'd rather avoid close contact with them.

It was somehow scandalous to see such a nice couple like the Gwins facing the proverbial music last Friday for growing marijuana for profit, rather than growing the miracle weed behind the fig leaf of medicine.

“The shame and embarrassment my clients have endured as a result of this, this crisis, this social crisis, this imminent disruption in their lives, the ghastliness, the nights of wild distress they have had to endure…” defense attorney Elliott continued, pausing briefly over something she’d come across in the file she was examining at the same time she addressed the court. “These sufferings, not only emotional, but financial and social as well, have resulted in some extraordinary efforts at regrouping, to get through this and change their lives for the better. And they have, your honor; they’ve turned their lives around 180 degrees.”

With the dough from an operation that size the defendants probably stashed plenty of cash, certainly enough to help them through their remorse.

DA David Eyster was prosecuting the case himself. “I was thinking they should each do a 180 days in jail, as well, judge.”

Elliott replied, “But couldn’t they just wear electronic monitoring anklets in San Diego?”

“That’s a possibility,” Judge Moorman said. “Especially considering the directive on the population problem at the jail we’ve been given.”

“If not that, then we’d be requesting a staggering of the sentences as they are parents of small children, your honor,” added Elliott, as if her clients were the only defendants with children the judge might see.

The children had been exposed to the vast quantities of pot, and Ms. Elliott had negotiated a reduction in charges, notably the child-endangerment charges, to get the Gwins to plead out, for this they were grateful to the point of tears. Mr. Gwin addressed the court while Mrs. Gwin wept quietly.

“We would like to thank the District Attorney for this chance he’s given us, and we are both deeply ashamed of the time and trouble we’ve caused law enforcement…”

Mr. Gwin’s voice softened to the point only parts were audible, such as the oft-repeated, “gratitude,” “deeply regret,” and “the placing of the marijuana within the reach of my children, well, uh, I guess I’ll have to live with that for the rest of my life…”

“I let them plea to a wobbler,” Eyster the Merciful said, “and I have every confidence that they will succeed with the terms of the probation and get this reduced to a misdemeanor. But every Friday during sentencing, judge, you send a message not only to the perpetrators, but to the community as well, and with all the pieces in the newspapers about home invasions this is an important message we need to send to the community; that these large grows that tempt these violent crimes will not be tolerated. The Gwins’ children were in as much or more danger from the possibility of a home invasion as they were from exposure to the marijuana itself. This grow was about nothing but the profits it would bring to this family and I think 180 days in jail is the message that needs to be sent, not only to the Gwins but to the community.”

As it happened, the judge edited the message from 180 to 150 days, one month in jail, the rest on electronic monitoring devices, “because,” she said, “the Sheriff would put them on home detention regardless [due to the population crisis at the jail] of what I say.”

Robert Gwin whispered to his lawyer, and Ms. Elliott told the judge that he was offering to serve both sentences himself.

Moorman: “Two 150-day sentences in jail?”

Eyster: “That’s very chivalrous, judge, but…”

Actually, it wasn’t that chivalrous, Elliott clarified. Mr. Gwin was, ahem, only offering to serve the 30 days in jail for his wife — not the whole thing.

At any rate, 150 days is really only 75 days, so 30 days in jail would leave just 45 for the home monitoring time. Moorman, a stickler for equal rights — said no, Daisy would have to serve her 30 days, just like hubby; however, the sentence staggering would be granted. Bob would go first, then Daisy. When it was over they could return to San Diego and try to live down their  adventures in Mendoland.

A pot grower whose name I couldn't hear was up next, having pled to possession of 19 processed pounds and 32 plants out of 4500 plants. She was unrepentent. No weepy contrition from this lady. She angrily remonstrated that she’d been set up by the police. The 4500 plants were on a neighbor’s property, it wasn’t hers. At this point, Eyster said the deal was off and he’d just go ahead and prosecute her for the full count of 4500 plants, which, he said, he could show she was indeed involved with.

Eyster: “She was offered this deal, the 19 pounds and 32 plants in lieu of facing the music on the 4500 — now, she says she was set up… well, if that’s her attitude, the deal’s off.”

Judge Moorman gave Ms. Pot Grower a week to reconsider and come back with a rehabbed attitude.

One member of the audience watching all this pot sentencing with keen interest was Kelly Boss. Mr. Boss had been busted with a substantial indoor grow at his property in Elk, and had recently purchased a vineyard in Philo on Chardonnay Lane on Holmes Ranch. Boss did not look quite like the Gwins — his hair was long and fixed in what young girls call a fountain with a fall; that is, the top layer gathered in a ponytail high on the head, and the under layer allowed to fall evenly down the back of the neck — think of little Cindee Woo in Dr. Suess’s How the Grinch Stole Christmas. It’s a bit odd for a grown man in a blue suit, but not uncommon among local pot pharm executives.

Kelly Boss resembled the Gwins in one respect, though. He had the same facile hauteur, the same comfy sense of entitlement that comes from never having had to worry about money. A man of his youth and callow social graces who can go around buying properties with ocean views on the South Coast and acres of grapevines in the Anderson Valley obviously got his money the old fashioned way — he inherited it! His grow was on Cameron Road near Elk, his wine op on the Holmes Ranch, Philo, where his neighbors include Alice Walker and Angela Davis, and no persons of ordinary means, meant Boss had been Boss for a long time.

But one can never have enough money, so Boss was shaking the Mendo money tree to augment his trust fund allowance, however lavish it may have been, when he was served with a search warrant by the task force and busted for marijuana cultivation and sales for personal profit.

Boss hired himself a boss pot lawyer, E.D. Lerman — having seen her ad in this newspaper. She was in court on Friday, not for Boss’s sentencing, but to 'traverse' his search warrant.

”Traversing” a search warrant is a legal maneuver which questions the validity of the warrant.

“We’re not asking that the informant be disclosed,” Ms. Lerman said — which is generally a futile endeavor, anyway — “but we want the PG&E records that resulted in this warrant. I have recently installed a new hot tub in my house and there’s been a spike in my utility bill … and yet, no search warrant, so…”

Ah, the subtlety of the SmartMeter®! And this is surely why so many locals campaigned against the new technology, which can count the number of eggs or beers in your refrigerator, how many hours you listen to KZYX, and also determine if you’re running a hot tub or grow lights. Opposition to smart meters had nothing to do with tinfoil hats. But you couldn’t complain in public forums like the letters page of your local paper about how the meters would be used to disclose who was involved in the underground economy.

“I can’t get those, judge,” Eyster said. “That information was given to the DEA by PG&E and I have no recourse to it. Only the DEA has subpoena power for those records. I don’t have access to it.”

“Your honor,” Lerman remonstrated indignantly. “We have no idea why PG&E went and got a search warrant, but”—

“I share your outrage,” Judge Moorman said, “but there’s nothing I can do. The Federal Government does not have to seek judicial approval for administrative search warrants.”

[Total surveillance is here.]

Lerman: “What about the records that were provided to law enforcement?”

Moorman: “Now that I can do something about.”

The judge turned to the DA and asked him to find out on what local basis the Boss warrant was obtained.

DA Eyster: “Judge, I don’t believe you can read this declaration [he held the pages up with one hand and backhandedly slapped it contemptuously across the face with the other] and say ‘find this out’ because you are jumping a stage in the legal process. The defense must first raise some reasonable doubt as to the informant’s integrity. What they [defense] are trying to do here is say there were some omissions or false statements made to a local magistrate.”

Lerman: “I’ve run into this with the DA before, your honor, and it’s getting to be a problem that needs to be resolved. The search warrant is so devoid of any real information, and when so much that is vital is sealed we have nothing, absolutely nothing, to go on.”

Moorman: “I’ll have to look into it further, but if you’re making a motion to unseal the warrant it’s my duty to look at the information and see if it’s necessary to protect the identity of the informant, or, conversely, to see if there’s any impeaching information to undermine his or her credibility.”

Lerman:  “This is a fancy motion to compel, your honor.”

Eyster: “It has Supreme Court precedents and the burden is on the defendant, judge.”

Moorman: “Here’s what I’ll do. I’ll look into it. Why don’t you come back next Friday at 1:30 and we’ll go from there?”

Eyster: “That’s fine with me, judge.”

Lerman: “Fine, your honor.”

Moorman: “It has been taken under submission, then.”