A judge who sentenced a medical marijuana advocate to three months in jail for jury tampering, reversed his decision yesterday after discussing the case with his 17-year-old son.
U.S Magistrate Judge Peter A. Nowinski had sentenced Jeff Jones, executive director of Oakland Cannabis Buyers’ Cooperative, to three moths in jail last week for handing out pamphlets on the steps of a Sacramento federal courthouse.
Jones was instead given three years of probation by Judge Nowinski who waived $1,000 in fines saying, ”I’m sure Mr. Jones has had $1,000 worth of anguish over the weekend.”
Jones was preparing to conduct a prison hunger strike to draw attention to federal prosecution of medical marijuana patients and caregivers. He was arrested after leafleting the courthouse during jury assembly for medical marijuana grower Bryan Epis, who was later sentenced to ten years in prison. Jones’ defense attorney, Michael Bigelow, says Jones knew that the pamphlets supported the state law governing medical marijuana. But said his client was not aware that they included information specific to Epis’ case.
As in the recent case of medical marijuana grower Ed Rosenthal, Epis was convicted by a jury who was not told that he was distributing medical cannabis under California law. According to Americans for Safe Access (ASA), a medical marijuana advocacy group, twenty-four patients and caregivers will face the same fate in federal court this year. Both cases have received extensive publicity.
Judge Nowinski told the court that he discussed his decision to reverse Jone’s sentence with his 17-year-old son who asked him, ”People will think you are responding to the publicity in the newspaper, and won’t that be embarrassing to you?”
”Yes, it will be embarrassing to me,” Judge Nowinski said he replied. ”But my feelings are not worth one day in jail for anybody.”
Judge Nowinski was significantly more subdued in court yesterday than during Jones’ February 27 sentencing hearing. On that occasion, Judge Nowinski reacted angrily to Bigelow’s suggestion that U.S. District Judge Frank Damrell Jr., was unreasonable when he dismissed an entire panel of prospective jurors who entered the courthouse while Jones was leafleting. Bigelow argued that tainted prospective jurors could have been selectively removed.
Concluding that Jones was attempting to duck responsibility for his actions, Judge Nowinski slapped him with $3,924.93 in restitution to cover the cost of seating a new jury. The judge then attempted to send Jones directly to prison on a misdemeanor charge of influencing a juror by writing. Judge Nowinski was so riled that he forgot to grant Jones’ ”elocution” right to express himself at sentencing, and insisted that Bigelow not discuss why Jones was distributing information about medical marijuana. Bigelow said that while Judge Nowinski was clearly worried about the integrity of the jury system, he was puzzled by the force of Nowinski’s outburst, which seemed to outstrip this immediate concern. ”He was so angry that I felt he was responding emotionally and he acknowledged from the bench that he was responding emotionally,” said Bigelow.
Ethan Nadelman, executive director of the Drug Policy Alliance which lobbies for the medical use of marijuana, points out that officials who strenuously reject drug law reform arguments, often elevate the ideology of abstinence over legal reasoning. ”In the U.S., the belief in abstinence and drug freeness is a quasi-religious imperative,” said Nadelman at a recent conference.
Judge Nowinski’s change of heart was conveyed by his clerk who called Bigelow at 7:30 a.m. requesting that Jones appear again in court. Bigelow, who was busy preparing motions for Jones’ bail pending appeal, and an emergency stay of his sentence, explained that his client was due in prison that afternoon. When Jones finally arrived in the courtroom, Nowinski acknowledged that he had spent the past week sentencing violent criminals.
“I don’t think Mr Jones is a candidate to have a bunk with any of them,”said Judge Nowinski.
Since the judge had already passed a sentence and lost jurisdiction over his case, Jones said he was required to withdrew his request for appeal in order to allow the judge to vacate his sentence. ”It was the most amazing set of circumstances,” said Jones. “The guy actually had a conscience.”
Judge Nowinski told the court that earlier in the day he and Judge Damrell had been approached by a person demonstrating against Jones’ impending imprisonment. Unaware that he was a judge, the protester handed Judge Nowinski a pamphlet entitled, ”How could this happen in America?” and asked ”Did you hear what happened here last week?”
That same afternoon, Judge Nowinski said that both he and Judge Damrell, who tried Epis, had received letters containing an unidentified white powder. Bigelow also received a suspicious letter which he said contained a long diatribe against marijuana laws addressed to U.S. Attorney General John Ashcroft. Both envelopes addressed to the judges had return addresses from Washington, D.C., while the letter to Bigelow had no return address.
”Passions are way too high,” Judge Nowinski told the court.
A county hazardous materials team and Sacramento Fire Department personnel took possession of all three letters, and had quarantined a floor of the courthouse earlier that afternoon. Some court employees were evacuated from the area, and mailroom workers were briefly isolated. An FBI spokesman said later that the powder tested negative for anthrax and other toxins, but that one of the judge’s letters contained threatening language.
Medical marijuana advocates strongly condemned the incident which appeared to be an elaborate hoax. ”I think it’s misguided,” said ASA executive director Steph Sherer, who extended her sympathy for the judge and anyone involved in the evacuation. “Tactics like this take away from the issue,” she said.
Jones says he does not yet know the terms of his probation, except that it does not involve urine tests. He said he will not refile his appeal, and told the court that he takes full responsibility for his actions. “Am I sorry I distributed the flyers? Absolutely. Am I sorry I broke the law? Absolutely. Am I sorry I disrupted the court? Absolutely. Will I ever do this again? Absolutely not.”
Jones also read a declaration saying he had no intention of violating an injunction against the Oakland Cannabis Buyers’ Club, which has prevented the group from distributing medical cannabis since 1998. The US Supreme Court ruled in 2001 that the club could not dispense cannabis under ”medical necessity,” and the case is still under appeal. Jones said Judge Nowinski appeared to be under the impression that the club was still distributing.
At the end of the hearing, Judge Nowinski informed Jones that he planned to scold him, but this was no longer necessary.
”He is a very good man, and ultimately a very good judge and this is the proof,” said Bigelow. “Judicially it was the right thing to do, legally it was the right thing to do, and his conversation with his son added that last dimension.”
ANN HARRISON is a freelance journalist, in the Bay Area. She can be reached at: ah@well.com
