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The Honolulu Advertiser
Posted on: Friday, April 23, 2010

Maui judge tosses charges tied to alleged pot trafficking

By Lila Fujimoto
Maui News

WAILUKU Saying there was a flaw in the procedure used to obtain a grand jury indictment, 2nd Circuit Judge Joseph Cardoza on Thursday dismissed charges against six defendants in an alleged marijuana trafficking operation tied to a Paia-based medical marijuana advocacy group.

"This ruling is not an attempt by the court to rewrite the medical marijuana laws in the state of Hawaii," Cardoza said. "This is not a ruling on the merits of anyone's case.

"The court concludes that the procedure followed before the grand jury was flawed. Dismissal without prejudice is warranted."

Because the dismissal was without prejudice, the prosecution could again seek an indictment in the case.

Deputy Prosecutor Timothy Tate said that will be done.

The defendants were among seven people arrested in November 2008 as part of "Operation Weedkiller." Police reported seizing hundreds of marijuana plants and clones, processed and unprocessed marijuana, drug paraphernalia, cash and a vehicle during a two-year investigation.

The probe centered on the medical marijuana advocacy group Patients Without Time, which police said exploited medical marijuana laws to sell the drug to hundreds of people.

Those arrested included Brian Murphy, 53, who founded and heads the group; Brian Igersheim, 31, of Makawao; Stuart Hirotsu, 48, of Wailuku; William "Bill" Cox, 48, of Haiku; John Cooper, 40, of Kihei; and Robert "Bobby" Armitage, 58, of Wailuku. All had pleaded not guilty to criminal conspiracy, with some of the defendants facing additional drug charges as well.

Wailuku attorney Ben Lowenthal, representing Igersheim, filed the motion seeking the dismissal of charges, with the other defendants joining in.

At issue was the grand jury testimony of Keith Kamita, chief of the state Narcotics Enforcement Division, who administers Hawaii's medical marijuana law. Lowenthal said Kamita provided a "misleading" legal opinion.

In addition to explaining how the medical marijuana program works, Kamita testified about some of the defendants' participation in the program.

"This is a very fair proceeding," Tate said. "Due process was not violated at all."

He said the only error was Kamita's testimony that Murphy did not have a valid medical marijuana card at the time.

Because of that testimony, attorney Chris Dunn said his client Murphy was prejudiced by being "portrayed as a complete scofflaw."

Murphy did have an active card, Tate said. But he said that in two raids, police found Murphy with "pounds of marijuana, well in excess of the statutes" limiting the amount of marijuana that a patient can have.

Cardoza said transcripts of the grand jury hearing indicate that Kamita was asked "30 or more questions" that might be considered questions of law.

After Tate asked Kamita questions, including requirements for obtaining a medical marijuana permit and limits on amounts, grand jurors also began asking Kamita questions relating to the law, Cardoza said.

"We have a witness uniquely qualified to talk about how the medical marijuana laws work in this state," Cardoza said. "There are a number of questions that are purely questions of law that could have and should have been answered by the grand jury counsel."

He said grand jurors' legal questions should be directed to the grand jury counsel, who under Hawaii law is assigned to receive such questions, conduct legal research and provide appropriate answers.

"This court can't put a stamp of approval on using a witness to fulfill that role," Cardoza said.

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Read the complete story in The Maui News: http://www.mauinews.com/page/content.detail/id/530806.html?nav=10