U.S. vs. Fry-Schafer Opening Statements

The temperature began to rise, in fact, before the jury even entered the courtroom. The first matter of the day was to discuss the applicability of Conant v. Walters, a case that ultimately enjoined the government from prosecuting doctors for giving advice and recommendations to their patients. Raising this precedent sparked unanticipated debate in the courtroom, and each side had a slightly different take on its relevance.

In Judge Damrell’s view, the Conant case was only about free speech. “She can talk to her patients about the use of marijuana,” he said about Mollie Fry. “If that’s all she did, then fine. But that’s not the conduct she’s charged with here. Understand what I’m saying?”

Laurence Lichter, the attorney who had made the proffer, ventured a guess. “That she may have crossed the line with her conduct?”

“You might argue that this is a mistake of law,” the judge mused. “For instance, did she think Conant did other things? But Conant is very specific.”

Indeed, the Conant decision does not allow doctors to assist patients in obtaining marijuana, nor does it give legal protections for cultivating or possessing marijuana for patient use. These were details that prosecutor Anne Pings was quick to point out.

“We’re not talking about the ten thousand recommendations for asthma, sore elbows, PMS – that’s not the case here,” the Assistant U.S. Attorney said, the ridicule apparent. “This is only about whether they tried to sell marijuana to the people who came in for recommendations. Period.”

In spite of the verbal punctuation mark, Pings was not quite finished on this subject. “The government has prepared its case based on the charges,” she clarified. “We have not prepared a case to attack the recommendation business. Our witnesses will only testify if they got the recommendation and if they bought marijuana from the defendants.”

At first, defense counsel Tony Serra acted like he would stay out of the debate. Since he was representing a lawyer rather than a doctor, he felt the discussion on Conant didn’t really apply to his client. “”I don’t have a dog in this fight,” he told the judge at the outset.

But the intrepid defense attorney soon changed his mind. He couldn’t stay out of the argument once the prosecutor stated that she did not intend to malign Fry’s practice. “That’s not the charge, but that’s what they want to do – they want to dirty us up!” Not one for morning grogginess, Serra was already infusing his spirited arguments with cartoonish voices well before 9am.

Serra, in fact, had much to say about the prosecutor’s intent. “She will bring up bad acts, and say, ‘These people are running a mill, they’re profiteering, they’re frauds!’ That will be the sub-rosa content of her case at some level. We have to counter that in some way and say, ‘This is altruistic, they were helping people--’”

“I was not intending to ask them about diseases, illnesses, etc.” Pings jumped in to clarify the point. She reiterated that the defendants were not charged with wrongdoing regarding the recommendation business, but quickly indicated her willingness to accommodate such charges. “If [the defense attorneys] want to do that, we can present a very large case about the insincerity of the recommendation practice.”

For Judge Damrell, however, the matter was simple. “She made good faith recommendations,” he summarized regarding Fry. “I won’t get into why she made those recommendations. A physician is entitled to make recommendations under Conant. And we are not going to engage in the sort of discussion that Mr. Serra thought we might.”

The judge then ordered the jury into the room, but was cut off by another request from Pings. Her snippy attitude had vanished, and this time she approached the lectern and spoke into the microphone with great gravity. “Your honor, I am going to ask for a special instruction,” she began. “It would be that, everyday when the jurors come into the courtroom, you look them in the eye and ask them if they were exposed to any media about this case.”

Responding to the judge’s quizzical expression, Pings continued. “The reason I ask is because the defense has scheduled to be on a radio show. Yesterday, one of the things that Dr. Fry said on the air was, when a dismissed juror called in, ‘Everyone here lies to you. They make you think you have to tell the truth, but you don’t.’ This violates the law.”

There was visible dismay in Judge Damrell’s eyes, but Pings wasn’t finished with her report. “And at the end of the show, the host said, ‘Come on, people, just play dumb and vote not guilty no matter what they tell you.’ These are affirmative messages to taint the jury pool,” Pings concluded.

Continued at http://www.medicalmarijuanaofamerica.com/content/view/128/1/