Judge denies motion to have AG

Tuolumne County Superior Court Judge Eleanor Provost on Friday denied a request to exclude the entire District Attorney’s Office from prosecuting a group of people arrested in a May 2010 raid on a medical marijuana dispensary.

Defense attorneys sought to bring in the California Attorney General’s Office as the prosecutor instead, claiming there is a conflict of interest because former District Attorney Donald Segerstrom, who filed the complaint against the marijuana providers, is now a Superior Court judge and may be called to testify in the trial.

Jana Marie Evans, 59, Nancy June Smith, 57, Sara Herrin, 55, and Danny Joe Geller Herrin, 27, all of Tuolumne, have pleaded not guilty to charges they illegally sold marijuana. They were arrested following a Sonora Police and Tuolumne County Sheriff’s Office raid on Today’s Health Collective, a marijuana co-op on Via Este Road in East Sonora.

Tuolumne County sheriff’s deputies in May raided all of the three medical marijuana dispensaries in operation in the county. Eight people were arrested and are all facing charges of operating the dispensaries as for-profit businesses, which is against state laws governing medicinal marijuana.

The attorney for Evans and Smith, Alexis Wilson Briggs, of Pier 5 Law Offices in San Francisco, argued a declaration filed by Segerstrom shows there is a conflict, which was disputed by acting District Attorney Michael Knowles.

Following court, Briggs explained the motion sought to remove the entire Tuolumne County District Attorney’s Office from prosecuting the case, arguing Segerstrom’s authority and presence extends even more over the small office of prosecutors now that he is a judge.

Briggs said the defense anticipates calling Segerstrom as a witness in the trial to testify on an alleged conversation between Segerstrom and the defendants.

Part of their defense is that, if the defendants spoke with a public official, Segerstrom, regarding what is lawful conduct and the defendant acts on that conversation, following what they were told was lawful conduct, then they’ve done their “citizen duty,” Briggs explained.

Briggs said the potential conflict extends to other prosecutors in the “small” district attorney’s office.

“The decisions he made will continue to be effectuated,” Briggs said during the motion hearing.

During the motion hearing, Angelo Edralin, from the state Attorney General’s Office, said there’s no case law where a member of the district attorney’s office created a conflict of interest and that the AG’s office would take over if a conflict was found.

However, “prosecutor shopping,” is not a remedy, Edralin said.

“There is no conflict,” Knowles said, adding that the size of the DAs office is “irrelevant,” and that Segerstrom no longer has an office in the building.
Provost said Segerstrom is isolated in the civil division and not allowed to discuss the case with anyone, including other judges.

The issue was further discussed following Provost’s denial of the motion, when the defense and prosecution discussed a set of files sent by the defense to the DAs office, which Knowles said he doesn’t have and wanted to re-subpeona. The defense said the files have already been sent, and Knowles replied that they are probably still in Segerstrom’s old office.

This spurred some back-and-forth between lawyers, until finally quashed by Knowles and Provost, who said Segerstrom doesn’t have access to his old files and the office is vacant, save some boxes and furniture.

“Anyway, track it down and find it,” Provost admonished.