With his white hair, neatly-trimmed moustache, and exemplary posture, Harde looked the part of a gentle, aging schoolteacher. But even with his shoulders straight, his words were those of a man who was spiritually downtrodden. Shortly before sentencing, Harde himself was permitted to address the court. With a shaking voice that stifled sobs, the defendant detailed his remorse for the consequences of his actions. "I am deeply sorry that I engaged in illegal activity," the defendant proclaimed, while simultaneously regretting the unnecessary expense of his prosecution. "The awareness of my folly and its consequences never leaves me -- it tortures me by day and haunts me by night." "I had a misconception about what I could do under the law. I was trying to help people and I was misguided in how I could help them. I was imprudent and unwise," Harde continued, before summing up his address with declarations of concession. "I realize the appropriateness of our federal drug laws. I have a deepened respect for the laws of our land. I have accepted responsibility by pleading guilty humbly."
In 2005, Harde was arrested by El Dorado County law enforcement for his role in a patient cooperative. After prosecuting Harde locally for several months, District Attorney Gary Lacy turned the case over to the U.S. Attorney's office and created a change of jurisdiction that eliminated the possibility of a successful medical defense in the case. Since federal courts do not recognize state medical marijuana laws, Harde was left with little recourse once he found himself facing charges from the U.S. government. He quickly changed his plea to guilty in order to accept a negotiated deal that reduced the charges against him to one felony count of cultivation.
An activist and dedicated community leader, Harde was particularly displeased by restrictions on his voting rights. From his solar-powered natural foods store to his pioneering of official organic farming guidelines to his appointment to the El Dorado County Fair Board, Harde has been nothing short of a role model for involved citizenry. And, to ask for leniency in his case, his citizen supporters not only packed the courtroom, but also packed the mailbox with character letters on Harde's behalf. "I received 110 character letters on behalf of the defendant. He comes in with a panoply of support, and that's wonderful. Most defendants in this court come in with just themselves and a public defender," Judge Damrell observed. "But is it fair for him to get less because of this? Just because he has support, should he be treated differently from other defendants?"
Judge Frank C. Damrell Jr. was at once regretful and firm in his decision. "I gotta obey the law -- how do I get around that?" the judge asked defense counsel J. David Nick, citing the sentencing requirements for a Class A felony. "You're suggesting to this roomful of people that I have the power to grant probation, and I want to dispel that. I can't go willy-nilly and do what I want to do. I have no choice in the matter." And with these claims of powerlessness, Judge Damrell proceeded to sentence Harde to two and a half years in prison.
RPCV David Harde receives Prison Sentence for Medical Marijuana
David Harde Gets 30-Month Prison Sentence for Medical Marijuana
Written by Vanessa Nelson
Monday, 18 December 2006
SACRAMENTO, CA -- In front of a courtroom packed with dozens of supporters, medical marijuana patient David Harde was sentenced today to 30 months in federal prison.
Judge Frank C. Damrell Jr. was at once regretful and firm in his decision. "I gotta obey the law -- how do I get around that?" the judge asked defense counsel J. David Nick, citing the sentencing requirements for a Class A felony. "You're suggesting to this roomful of people that I have the power to grant probation, and I want to dispel that. I can't go willy-nilly and do what I want to do. I have no choice in the matter." Sacramento federal court building
And with these claims of powerlessness, Judge Damrell proceeded to sentence Harde to two and a half years in prison.
With some courtroom spectators in tears and a few rising to their feet in protest, it was a dramatic moment that brought conclusion to a 15-month legal battle.
In 2005, Harde was arrested by El Dorado County law enforcement for his role in a patient cooperative. After prosecuting Harde locally for several months, District Attorney Gary Lacy turned the case over to the U.S. Attorney's office and created a change of jurisdiction that eliminated the possibility of a successful medical defense in the case. Since federal courts do not recognize state medical marijuana laws, Harde was left with little recourse once he found himself facing charges from the U.S. government. He quickly changed his plea to guilty in order to accept a negotiated deal that reduced the charges against him to one felony count of cultivation.
By pleading guilty to this felony, however, Harde was required to give up many of his civil rights. He was caught off guard when, at his change of plea hearing, he discovered that his ability to vote would be restricted. "I didn't know that," Harde said about this condition of his plea, pausing for a moment of contemplation before pressing ahead with the deal.
An activist and dedicated community leader, Harde was particularly displeased by restrictions on his voting rights. From his solar-powered natural foods store to his pioneering of official organic farming guidelines to his appointment to the El Dorado County Fair Board, Harde has been nothing short of a role model for involved citizenry. And, to ask for leniency in his case, his citizen supporters not only packed the courtroom, but also packed the mailbox with character letters on Harde's behalf.
Both shows of support were duly noted by Judge Damrell during the sentencing hearing.
"I received 110 character letters on behalf of the defendant. He comes in with a panoply of support, and that's wonderful. Most defendants in this court come in with just themselves and a public defender," Judge Damrell observed. "But is it fair for him to get less because of this? Just because he has support, should he be treated differently from other defendants?"
The questions, it seemed, were merely a rhetorical preparation for the announcement of the sentence.
The judge's attention was more clearly focused on what he saw as an inconsistency in the case. He began by characterizing Harde, "He's a successful, entrepreneurial individual. He keeps books, he pays taxes, he's knowledgeable and intelligent."
This said, the judge contrasted the operation of Harde's natural foods store to the way the medical marijuana cooperative was organized. "This doesn't look like it was run as a business," Judge Damrell said of the cooperative. "It looks like a typical run-of-the-mill marijuana garden. The assets here are significant, and yet you get handwritten little slips of paper about who owes him what, and it appears he was paid in cash."
In explanation, defense attorney Nick presented an argument that a small cooperative and a grocery store are quite different undertakings, with contrasting requirements and operations, as well as different philosophies. "You characterize this as a business, but, your honor, the people don't see it that way," Nick maintained. "They have a more benevolent view."
Benevolence was indeed the image projected by Harde. With his white hair, neatly-trimmed moustache, and exemplary posture, Harde looked the part of a gentle, aging schoolteacher. But even with his shoulders straight, his words were those of a man who was spiritually downtrodden.
Shortly before sentencing, Harde himself was permitted to address the court. With a shaking voice that stifled sobs, the defendant detailed his remorse for the consequences of his actions. "I am deeply sorry that I engaged in illegal activity," the defendant proclaimed, while simultaneously regretting the unnecessary expense of his prosecution. "The awareness of my folly and its consequences never leaves me -- it tortures me by day and haunts me by night."
"I had a misconception about what I could do under the law. I was trying to help people and I was misguided in how I could help them. I was imprudent and unwise," Harde continued, before summing up his address with declarations of concession. "I realize the appropriateness of our federal drug laws. I have a deepened respect for the laws of our land. I have accepted responsibility by pleading guilty humbly."
The message of the plea was not lost on Judge Damrell, in spite of his insistence on issuing prison sentence.
"I'm going to give the defendant the benefit of the doubt that I do have -- that he thought he was doing this for the benefit of other people," the judge said regarding the cultivation charge against Harde. "That mitigates the sentence but does not mitigate the penalty. This was not a flower box -- this was a substantial garden involving substantial amounts of marijuana and substantial sales. In this case, there's no question that there's a violation of federal law and there are severe penalties."
However, the judge did stress that the 30-month sentence he imposed went below the 37-month sentence suggested by the low-end of the sentencing guidelines. "I don't think I ever recall going below the safety valve before," the judge mused in a comment that was superficially self-congratulatory but also subtly hinted of a tendency towards conservatism.
Following the declaration of the prison sentence, the judge ordered a 3-year period of formal probation and also flatly denied the defense's request to reduce the prison sentence by allowing Harde to participate in a drug treatment program.
The prosecution had objected immediately to the drug treatment request, stating that it would not be appropriate. "That's for addicts," U.S. Attorney Ellen Endrizzi said of the program, a sentiment with which the judge apparently agreed.
Also denied was the defense's request to reduce the financial penalties in the case to a single $50,000 fine. As the plea agreement states, Harde would be required to turn over to the government this fine plus his share of his family farm -- a sum equivalent to a quarter of a million dollars. In addressing the court, defense attorney Nick characterized the financial penalty as grossly excessive. "Given the circumstances of the case, it feels like they're asking for the electric chair for someone who double-parked, " Nick argued.
To counter the argument that the penalties would wipe out all of Harde's equity, the prosecution introduced claims that Harde owns various houses as well as a parcel of land. Endrizzi even went so far as to make lightly-veiled insinuations of further criminal activity on the part of the defendant, saying in passing about the properties, "One must wonder with what funds they were purchased."
It was not the only time during the hearing that the government would cast aspersion on the defense. Objecting to the idea that Harde be allowed to self-surrender, the prosecution attacked Harde's motives as well as those of his courtroom supporters. "The government would seek an immediate remand," Endrizzi told the court. "While the defendant does have community support, that community support might assist him in fleeing now that he's facing a substantial sentence."
Judge Damrell balked at the prediction. "I don't think this defendant is going to flee, and I don't think the people in this courtroom are going to assist him in doing so," the judge declared with certainty as he set Harde's self-surrender date for January 16th, 2007.
Outside the courtroom, defense counsel bemoaned the challenges of medical patients caught in the federal judicial system. "This is the best thing that could have been done for him," Nick said of Harde's plea deal. He continued by asserting that "it doesn't even make sense to try these cases" due to the likelihood of increased penalties resulting from conviction in federal jury trials. It's a risk being weighed not just by Harde, but by dozens upon dozens of other California medical marijuana patients currently facing charges in federal court.
As for the broader significance of today's events, the defense attorney offered some reflection. "What this case shows is that normal, regular people are involved in this," Nick said about medical marijuana cooperatives.
And indeed that may be the legacy left by Harde's case -- a meaningful contribution to the slow but sure erosion of the vilification of medical cannabis patients.
