Pot trial pushes a hot button

In the upcoming trial of Merced marijuana activist Dustin Costa, prosecutor Karen Escobar says the federal government — just like the defendant — has the right to a fair trial.

To that end, she is asking a federal judge to prohibit Costa's supporters from wearing buttons, T-shirts or anything else that promotes legalizing medical marijuana.

Such "paraphernalia," she said, could have an "improper influence on jurors required to follow the law."

The request prompted Costa's defense attorney, Robert Rainwater, to point out that Escobar was wearing a lanyard with "DEA" on it, for the Drug Enforcement Administration — which could bias a jury in the opposite direction.

Why should she have that right, Rainwater said, when supporters of Costa and medical marijuana might not.

U.S. District Judge Anthony W. Ishii did not rule on Escobar's request, but said it was in a gray area of First Amendment free-speech rights versus the right to a fair trial.

Monday's exchange in U.S. District Court in Fresno came as both sides hashed out motions before Costa's trial, scheduled to begin Nov. 7.

A three-count indictment charges Costa with growing more than 100 marijuana plants — equivalent to nearly 9 pounds — with the intent to distribute. Costa also faces a charge of possession of a firearm "in furtherance of drug trafficking crime."

But this is more than a simple drug-trafficking case. Costa was president of the Merced Patients Group, a private cannabis club in Merced that claimed 230 members.

In 1996, California voters approved Proposition 215, which gives ill people the right to use marijuana for medicinal purposes when cleared by a doctor.

In June 2005, however, the U.S. Supreme Court ruled that the federal government could prosecute people who use marijuana for medicinal purposes.

Costa was arrested a short time later.

Rainwater already has said Costa believed he was growing and distributing marijuana while it was still legal under state law.

Waiting in line behind Costa at Fresno's federal courthouse are at least one — and possibly two — similar cases. In some hearings, Costa's included, supporters have shown up in T-shirts with slogans such as "Marijuana — better than Ritalin."

In making her case, Escobar referenced a 1995 Superior Court trial in San Jose where a man was convicted of murdering his estranged wife's fiancé. The victim's family sat in the front row of the gallery during the trial, wearing buttons with the murdered man's picture.

The 9th U.S. Circuit Court of Appeals overturned the verdict and ordered a new trial, saying the buttons may have biased jurors.

Ishii acknowledged supporters of either defendants or the prosecution could be affected in the matter: "This is one of those issues that cuts both ways."