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CounterPunch
March 4,
2003
Special to CounterPunch
No Lock Up for Jones!
Judge Decides Medical Marijuana
Advocate Does Not Belong in Prison; "The Guy Actually Has
a Conscience"
By ANN HARRISON
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
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