The MENDOCINO COUNTRY  Independent
8/19/10

Flying Boxes of Pot on Highway; PETER COLOMBO

            On Friday, July 23, I received a phone call from a concerned reader that a marijuana defendant in judge Henderson’s court was being prevented from offering a medical defense. I went to the courtroom and observed prosecutor Elizabeth Cox demanding the court order the defense to make a showing in a 402 hearing that Peter Colombo had a valid medical marijuana recommendation, and if he couldn’t, then defense attorney Keith Faulder should not be able to voir dire jurors on their views of medical marijuana or mention a medical defense in an opening statement at a trial which was set for the following week.

            The charges were transporting, possession and cultivation for sale, as well as possessing a firearm in commission of a felony.

            Henderson agreed with her and said that his policy was that any written medical marijuana recommendation had to be confirmed by sworn testimony of the doctor who issued it that the amount the defendant possessed at the time of arrest was consistent with their medical need.

            At around 3:00 pm on Friday, the court ruled that the defense must either forgo any voir dire of the jury as well as any opening statement about medical marijuana unless it could present evidence that the defendant had a valid medical marijuana recommendation for the amount he was arrested with.

             Testimony by the patient that he had a recommendation was hearsay, in the court’s view. He gave Keith over the weekend to produce the doctor.

            The unfortunate problem was the doctor issuing the recommendation is beyond reach of the defense to call him as a witness. A native born Egyptian, Hani Assad has been stripped of his California medical license for false statements concerning sexual misconduct with patients.

            The Medical Board of California revoked his license in October of 2009, and he is in the wind.  He had pioneered franchise medical marijuana evaluation offices in California, setting up satellites from Arcata to Bakersfield out of an Oakland headquarters, issuing some 40,000 medical marijuana recommendations through this network by the time of his disqualification.

            Assad’s legal troubles began when two female patients in his Kaiser Permanente practice complained of sexual contact during treatment, and one alleged to have carried on a several years long consensual affair with him ending in a rape complaint.

            Again on July 27, prosecutor Elizabeth Cox repeatedly told the court that the defense should required to lay the foundation for Colombo’s patient’s medical status  in a   hearing prior to swearing in of the jury or forego any such defense at trial.

            Henderson said his policy would require the testimony either of the recommending doctor or his representatives.

            Keith told this reporter that the judge’s requirements were unprecedented. He intends to call as witnesses  a number of other patients being served by Colombo’s cooperative.

            In past practice, a medical marijuana defendant would be required to present a Mower motion only once, at preliminary hearing or trial. The burden of proof is on the defendant to show the prosecution’s case falls short of reasonable doubt.

            But Henderson’s policy supported by the prosecution would require defendants to present doctor testimony of medical possession twice, once before trial and again during trial. Testimony of expert witnesses can cost thousands of dollars per appearance.

            Faulder told judge Henderson that his client was indigent and had not paid him yet. The medical records on which Colombo’s recommendation was based are probably available, and defense counsel said he would try to subpoena them.

            At a continuation of the matter on Tuesday, July 27, Henderson relented to Faulder’s furious arguments and letting his ruling stand, vacated the trial date.

            A pre-trial conference has been set for November 10 at 1:30pm in courtroom A.

            This bizarre case began on January 28, 2009 when Colombo was found by a CHP officer loading the back of his green Dodge 3500 pickup with boxes and bags of marijuana on the median strip of Highway 101 south of Calpella. The officer contacted the Major Crimes Task Force and agent Robert Simas arrived at the scene and took pictures.

            In addition, Simas interviewed the defendant who told him he had been driving south on 101 when the car in front of him hit a plastic garbage bag on the highway and it exploded, with the contents appearing to be marijuana. Colombo told agent Simas that he wanted to remove the marijuana from the roadway so no one else would hit it.

            Simas then obtained a search warrant for Colombo’s Redwood Valley home where officers found two grow rooms with 60 budding plants each. They also found digital scales and drying marijuana buds. They also allegedly found an expired medical marijuana recommendation by Dr. Assad and a shotgun.

            They also claimed to have found evidence linking Colombo to the marijuana found on the Highway, but he has not been accused of possessing that, yet.
        Frequent marijuana defense attorney Justin Peterson has been subpoenaed by the prosecution. He told investigators he observed a cardboard box fly out of the back of a pickup truck southbound on Highway 101 that day which struck his vehicle.