From the Orange County Register
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Editorial
Chavez faces prison
November 20, 1998

Prop. 215 included as one of its purposes encouraging the government to set up a "safe and affordable" system of distribution of marijuana to patients who, under the new law, had the right to use it so long as they had a recommendation from a licensed California physician, but might not know how to grow or obtain it. Except for a few cities, the government failed to comply with this encouragement, quite notably in Orange County. Instead of working with people like Marvin Chavez who were attempting to compensate for the government's failure, Orange County officials filed criminal charges against him and others.

So a jury instructed to ignore this lamentable history found Mr. Chavez not guilty of selling marijuana on the first five counts, (involving other members of the Orange County Patient Doctor Nurse Support Group), but did find him guilty of the lesser misdemeanor count of giving away marijuana. On the first two counts involving transfers to law-enforcement undercover investigators, they found him guilty of selling, but on the second two counts they found him not guilty. On the 10th count, of transportation (by mail to Chico), they found him guilty of a felony.

The defense plans to appeal on the basis of denying the jury the opportunity to consider a Prop. 215 defense. Sentencing is scheduled for Jan. 8 in Department 16 of the West Orange County court in Westminster, with Judge Thomas J. Borris, who presided over the trial.

We hope Judge Borris approaches the sentencing with compassion and common sense. We hope even more strongly that local officials will move quickly and establish guidelines and oversight procedures for organizations that try to supply marijuana to patients with a legal right to use it under Prop. 215. State and local legislative and regulatory agencies also could develop more rigorous definitions for terms such as "primary caregiver," which turned out to be a source of contention in this case as it has in others recent lawsuits.

How much longer will they delay?

From the Orange County Register
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November 12, 1998
Editorial: STINGING THE DEFENSE

The Chavez Trial

Marvin Chavez’s trial on 10 counts of marijuana sales-or,depending on how you view matters, of trying to implement Proposition 215, whereby voters gave patients with physicians’ recommendations the right to use marijuana - resumes today, with an evidentiary hearing and more prosecution witnesses.

Superior Court Judge Thomas Borris has ruled that the defense may not use a Prop. 215 defense on the first two charges, which involve chronic back pain patient Greg Hoffer, because the judge was not convinced there was enough evidence that Mr. Chavez was Mr. Hoffer’s "primary caregiver." He had previously decided not to allow a 215 defense on three charges involving Jerry Pollard, because Mr. Pollard was a caregiver for another patient (now deceased), and Judge Borris believes transactions among caregivers (real or alleged) are not covered by the law.

The defense is still trying to establish a caregiver relationship between Mr. Chavez and Shirley Reaves of Chico. So the concept of "primary caregiver," imprecisely defined in the proposition and still up in the air as far as the courts are concerned, continues to be a central issue.

Regarding the four remaining charges arising from Mr. Chavez’s furnishing small amounts of marijuana to undercover law-enforcement operatives, the prosecution is expected to argue that this was a standard drug dealer case, and the defense will argue that the way the police handled the case constituted illegal entrapment.

However the case turns out, it could help to set guidelines for patients who have a legal right to possess and use marijuana under the California law, but don’t know how to acquire it. Whether the outcome of this trial and other actions will spur state or local officials to set up clearer protocols for implementing Prop. 215 is an open question.

Copyright: 1998 The Orange County Register

From the Orange County Register
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November 13, 1998

Cast Of Characters In the Chavez Trial
By Alan W. Bock-Mr. Bock is the Register’s senior editorial writer.

Marvin Chavez is a small man who almost always wears a chest brace because of a rare spinal disorder. He found that marijuana offered him pain relief without the side effects of prescription drugs. He became a campaigner for Proposition 215.

The Marvin Chavez trial in West Orange County Court in Westminster, features an interesting cast of characters assembled in a proceeding that could have a profound impact on how Proposition 215 (now Section 11362.5 of the California Healthy and Safety Code) will be implemented. Section 11362.5 specifically provides a defense against California laws against the possession, use and cultivation of marijuana for patients with a recommendation from a licensed physician and for their "primary caregivers."

However, California still has laws against the sale, transportation, importing and furnishing of marijuana. While appellate court decisions have suggested that some leeway in these areas might be appropriate since a "right" that can’t be exercised would be an absurdity, they have so far declined to specify just how much leeway if any.

Marvin Chavez, the defendant, is a small man who almost always wears a chest brace because of a rare spinal disorder that was aggravated by an injury several years ago.

It took doctors several years to figure out that he was still having severe back pain long after his injury should have healed because he has ALS, commonly called Lou Gehrig’s disease. They prescribed a wide range of pain medications which, according to Marvin, left him severely depressed and almost a recluse. "I hardly ever left my room for almost two years," he told me.

Finally, having heard something about purported therapeutic effects, he tried marijuana and found that it offered him pain relief without the disturbing side effects of the prescription drugs. He became a campaigner for Prop. 215 and after it passed he took steps to organize an Orange County Cannabis Co-Op, later renamed the Orange County Patient Doctor Nurse Support Group.

With Dr. Del Dalton, a pain-management specialist in Laguna Niguel as an informal medical adviser, along with Anna Boyce, the registered nurse who was instrumental in getting 215 passed, he (and others) put together a program of educational activities, meetings among patients and distribution of marijuana to patients with a doctor’s recommendation.

But the cooperation he had hoped for from public and law-enforcement officials was not forthcoming. He was arrested for selling marijuana.

Despite occasional flashes of bitterness ("We’re disabled people, and mostly poor people, just trying to get a reliable supply of our medication. Why are they going to so much trouble to make a hard life even harder?") Marvin is mostly cheerful and optimistic. He knows he might have to go to jail and it will be hard to get his preferred medication there, but he’s prepared for the possibility.

Judge Thomas J. Borris, 45, has been presiding judge in the West Orange County Judicial District since 1993. A Republican, he was appointed by Pete Wilson. A Kansas City native who went to high school in Buena Park (where he played football), he was graduated in 1976 from the Claremont Colleges with a political science degree and received his law degree in 1979 from Loyola Law School. He was a deputy district attorney in Orange County from 1980 to 1990 and in private practice from 1990 to 1993.

According to his short biography in the 1998 edition of "California Courts and Judges," a standard reference work published by James Publishing, Inc., Judge Borris was named "Judge of the Year" in 1995 and "District Attorney of the Year" in 1984 by the Orange County Narcotics Officers Association.

That is an interesting distinction to have earned, given his current case. My observation, based on sitting in his courtroom for several days, is that he is the fairest and most thorough judge to have had this case so far.

He listens, he has a sense of humor (when denying a motion from an attorney he’s prone to say "that’s not gonna happen") and while he keeps things moving along he also takes the time to consider issues and make sure both sides have their say. He has ruled against the defense on most of the issues germane to the case, but he has allowed the defense to build a foundation for an entrapment defense on some of the charges. He loves sports analogies.

Carl Armbrust, the deputy district attorney prosecuting this case, is almost a caricature of what you would expect an anti-marijuana crusader to be. Tall, balding, gaunt, this former career Air Force officer projects a stern demeanor at first. But he is also approachable, pleasant and reasonable to talk with even when he disagrees with you. He has a wry sense of humor. He’s fond of exaggerated pronunciation; he enunciates "may-ri-wanna." I think he’s doing a terrible thing in pursuing this case rather than dropping it, but heaven help me, I like him.

He has represented Steve McWilliams in San Diego (whose criminal case is scheduled in December), Andrea Nagy in Ventura County (whose civil case closing her growing plot is on appeal) and has been a co-counsel for the Oakland and San Francisco cannabis clubs.

Silva, who much prefers his BMW motorcycle to any car, is the earnest explainer to the jury, pleading with them to understand how sincere Marvin Chavez’s efforts have been.

J. David Nick is the polite but persistent and unrelenting cross-examiner, especially skilled at finding holes in the stories policemen tell on the stand. Born in Miami, he has lived in San Francisco for 17 years and got his law degree from the University of San Francisco in 1990. Since then he has been a solo practitioner criminal defense attorney, with a special interest in constitutional issues.

Nick handled his first case involving medical marijuana in 1992 and got several acquittals on "medical necessity" grounds before Prop. 215 was passed. He was one of the lawyers for "Brownie Mary," the 70-year-old woman who used to bring marijuana-laced brownies to AIDS patients in San Francisco hospitals and has an appeals case pending before the 9^th Circuit on the constitutionality of drug-sniffing dogs in schools.

Much of what happens in court is routine and boring, but there are usually moments of drama or turning points. With this cast of characters and the issues involved, this case has had and should have more of these than usual.
Copyright: 1998 The Orange County Register

From the Orange County Register
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November 13, 1998
EDITORIAL: NO PROP. 215 DEFENSE

Marvin Chavez’s trial on charges of marijuana sales continued Thursday in West Orange County Court in Westminster. The first business was the conclusion of a preliminary evidentiary hearing involving Shirley Reaves of Chico, to whom Mr. Chavez allegedly sent marijuana through the mail. Judge Thomas Borris then announced that a "Prop. 215" defense - an instruction to the jury that the circumstances warrant a defense because of their medical and/or caregiver nature - would not be allowed on any charges, including those involving Shirley Reaves. He did allow the defense to lay a foundation, however, to claim illegal entrapment by investigators in four of the 10 charges.

The cross-examination by defense attorney David Nick of undercover investigator Joseph Moreno, who posed as a man with chronic back pain to induce Mr. Chavez to furnish marijuana to him, concluded with certain interesting admissions.

Mr. Nick reinforced the fact that Mr. Moreno at first said he didn’t think he had any written notes of his conversations with Mr. Chavez, but such notes did indeed exist.

Mr. Moreno had said that the plan at the outset of the investigation was to tape record all conversations with suspects, but it turned out some conversations had not been tape recorded.

Deputy District Attorney Carl Armbrust then played the tape of a phone conversation between Mr. Moreno and Mr. Chavez, in which Mr. Moreno said he was "bedded down" with pain and wanted to send his "cousin" (another undercover officer) to get some "medication."

The next witness was Gregory Hoffer, who testified that he did have a valid recommendation from a licensed physician for marijuana for pain due to chronic back troubles, pain, and that he asked Mr. Chavez to furnish him marijuana. He said Mr. Chavez met him and agreed to do so after he showed his physician’s letter, his drivers license and filled out some forms.

The prosecution emphasized that money as well as marijuana changed hands in that meeting.

The defense emphasized that the money was viewed by both parties as a donation to the co-op Mr. Chavez had founded.

After the jury was out of the courtroom, defense attorney Nick reminded Judge Borris that the court had the option of dismissing the charges "in the interests of justice" and urged Judge Borris to do so. Judge Borris declined the invitation.

The afternoon was taken up mostly with questions about Jack Shachter, slated to be the defense’s main witness.

Mr. Shachter is facing, in a separate action, marijuana-selling charges due to be considered in December, and his attorney, public defender Claudia Gaona, has advised him not to take the stand in the Chavez case.

Mr. Shachter still wants to testify.

So the defense has offered to prepare the questions it intends to ask, present them to Ms. Gaona, and let her give Mr. Shachter more informed advice on Monday - when the trial resumes.

We’ll be there.

This case has the potential to be instrumental in developing guidelines for the implementation of Prop. 215. It will be fascinating to see how the jury responds to the complex information it has received, some of which it may well be told to disregard in its deliberations.
Copyright: 1998 The Orange County Register

From the Orange County Register
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November 17, 98

THE CHAVEZ TRIAL

Perhaps the most interesting comment during Marvin Chavez’s trial on 10 marijuana sales-related charges, which continued Monday in the West County court in Westminster, came from Hector Rios, an investigator with the District Attorney’s Office. He had posed as the cousin of Joseph Morales, another D.A. investigator, as the two tried to obtain marijuana from Mr. Chavez in an undercover operation. Asked by defense attorney James Silve if he had studied the new medical-marijuana law (Prop. 215 or Health and Safety Sec. 11362.5) before joining the undercover investigation of Mr. Chavez, Mr. Rios said he hadn’t and the to this day he has no idea what the medical-marijuana law is in any detail.

Can this be true? Two years after Prop. 215’s passage, have local investigators who do undercover drug-law work not been briefed or been instructed to familiarize themselves with the provisions of the new law so they won’t waste their time and the taxpayers’ money investigating people who, under the law, have a legal right to possess, use and cultivate marijuana? If so, this would be a disturbing neglect of law enforcement’s duty to obey and find a way to follow a new law.

The Chavez trial opened on Monday with testimony from Jack Shachter, an associate of Mr. Chavez, appearing as a defense witness. Mr. Shachter appeared despite concerns from his own attorney since he faces criminal charges himself. His public defender, Claudia Gaona, sat next to him in the witness stand and raised concerns about some questions, but the testimony concluded without Mr. Shachter invoking his right not to incriminate himself.

Mr. Shachter testified that after Mr. Chavez was arrested and released in January, district attorney investigator Joseph Moreno, still posing as Victor Flores, a patient with severe and chronic back pain, contacted him (Mr. Moreno he would have to verify his status as a member of the Orange County Patient Doctor Nurse Support Group, then later told him he could not furnish marijuana because he didn’t have any "medicine," as both called it.

Mr. Shachter said he also had several contacts with David Reyes of the Garden Grove Police Department, posing as Al Pena, a nephew of Flore/Moreno. Finally, he told Pena/Reyes not to call him again until he received a caregiver card from Mr. Chavez. On cross-examination, Deputy District Attorney Carl Armbrust questioned why Mr. Chavez had told investigator Moreno to call Mr. Shachter at a time when Mr. Shachter was not distributing marijuana and he tried to get Mr. Shachter to specify that at a different time Mr. Schachter had distributed marijuana, but the questions were not allowed.

Mr. Rios then took the stand, explained how he had posed as Mr. Flores/Moreno’s cousin and obtained marijuana from Mr. Chavez. The prosecution played a tape of the meeting, The prosecution stressed that money as well as marijuana changed hands while the defense stressed that the money offering was characterized as a donation. After seeing a transcript of an earlier meeting Mr. Rios conceded that it could be characterized as something other than a sale.

The afternoon began (with the jury not present) with a discussion about separating seeds and stems. Last week the defense established that a criminalist who had weighed some marijuana seized from Mr. Chavez had included seeds and stems, and argued that under the law, such non-pychoactive parts of the plant should not be included as marijuana. On Friday the prosecution instructed another criminalist to separate the seeds and stems from another batch of marijuana seized from Mr. Chavez, weigh the remainder and then analyze it. He said it was marijuana and weighed 35.9 grams.

Judge Thomas Borris finally allowed the testimony and said the defense could present its own expert witness. The issue is important because under California law, possession, transportation, etc. of less than one ounce (28.5 grams) of marijuana is a misdemeanor, while possession of more than an ounce is a felony.

Marvin Chavez himself then took the stand and his lawyers led him through a description of his own medical problems, a cursory description of how the "cannabis co-op," also called the Orange County Doctor Patient Nurse Support Group, operated and how he dealt with the undercover investigators.

Mr. Chavez’s testimony should be finished tomorrow, followed by cross-examination, then perhaps one more defense witness. Unless further delays occur (don’t bet against it) closing arguments take place in the afternoon and then the case, which could help determine how Prop. 215 will be implemented, will be in the jury’s hands.