Redemption Song

Dave Herrick's strange odyssey through the U.S. war on drugs

Armbrust, like other law-enforcement officials around the state, saw a loophole in Prop. 215: while the law allows sick people to buy medical marijuana with a doctor's permission, it doesn't allow anyone to sell it—or even give it away.

In court, Armbrust exploited that fuzziness. He charged that Herrick and Chavez were nothing more than sophisticated street dealers. If so, the pair had unusual habits. Believing they were operating under the protective umbrella of the new law, they made no attempt to mask their efforts to get marijuana into the hands of those with a doctor's permission. They publicized their group's activities in letters to the Times, The Orange County Register and the OC Weekly. They invited law-enforcement and city officials to speak to their group on the subject of Prop. 215. They demanded—and received —written doctors' notes before dispensing marijuana. They kept a strict accounting of the money they received in the form of donations; in several cases, they simply gave the marijuana away.

But none of that mattered when Froeberg denied Herrick the right even to refer to Prop. 215 in his defense. In July 1998, the jury convicted him of two counts of selling marijuana but cleared him of the two remaining sales counts.

Herrick was transferred from the pristine confines of the brand-new Santa Ana Jail, where he had sat out the trial, to Wasco State Prison in the high desert of San Bernardino County. A few days later, he was placed in protective custody. To the rest of the inmates at Wasco, that meant just one of two things: Herrick was either a cop or a child molester. Since few cops end up behind bars, most inmates were betting on the latter. Herrick claims the Nazi Lowriders prison gang put a hit on his life. The gang only backed off after it realized that Herrick wasn't in the hole for molesting children but for selling marijuana.

"That was pretty frightening," said Herrick. "They never found out I used to be a cop."

Several months later, Herrick was transferred to Salinas Valley State Prison, where he was put in an open dormitory with 200 other inmates. "Anyone could hit whoever they wanted," he said. "There were articles coming out saying that I had been a cop. So I was very vulnerable."

After his arrest, Herrick urged Chavez to lay low—to drop the aggressive, high-profile distribution of marijuana and wait for the courts to clear up the legal confusion surrounding Prop. 215. Chavez refused and continued dispensing medical marijuana to members of the co-op. Then Chavez went even further, announcing the formation of a new medical-marijuana organization with the unwieldy handle "Orange County Patient/Doctor/Nurse Support Group."

Before Herrick's trial even started, police arrested Chavez in January 1998 on the same charges. A judge released Chavez a few days later with the admonition that he cease distributing marijuana through the co-op. Chavez still refused to stop. Along with Jack Schacter, a terminally ill friend, he continued to provide bags of medical marijuana to anyone with a doctor's note. In July 1998, the same month Herrick was sentenced, Chavez was arrested again, this time for selling two bags of marijuana to a pair of undercover narcotics detectives. Police also charged him with a federal crime: mailing marijuana to a co-op member in Bakersfield. In November 1998, Chavez was convicted and sentenced to six years in state prison. (He is currently serving out that sentence at the Susanville State Prison near Sacramento and was unable to be interviewed for this story because of a California Department of Corrections policy that virtually prohibits reporters from conducting telephone interviews with inmates. Armbrust failed to respond to interview requests for this story.)

It would be wrong to read Herrick's release from prison as a victory for Prop. 215. In fact, if anything, his successful appeal reveals something quite different—and rather ugly about the way in which "justice" was carried out in Herrick's trial. The court's decision to reverse Herrick's conviction centered on several slips of paper confiscated from Herrick's Santa Ana hotel room at the time of his arrest. They detailed how Herrick and Chavez had provided marijuana to members of the co-op in return for voluntary donations—evidence that might confuse a jury being asked to find Herrick and Chavez guilty of being garden-variety drug dealers. At the beginning of the trial, Armbrust succeeded in petitioning Froeberg to rule the donation slips inadmissible. But during closing arguments, Armbrust told the jury that Herrick's attorneys could have entered the missing donation slips as evidence if they had wanted to—a statement that was clearly false, since Armbrust himself had prevented the defense from doing so. Adding insult to injury, Froeberg failed to admonish Armbrust for misleading the jury at the most crucial point in the trial. In its unanimous ruling, the three-judge panel that reversed Herrick's conviction said Froeberg lent "tacit judicial approval to the prosecutor's falsehood," something that "cannot be dismissed as harmless."

Keeping a stiff upper lip, the district attorney's office says it won't appeal Herrick's recent reversal. "We found that there would be no practical value in retrying this case," said Tori Richards, the DA's spokeswoman. "Mr. Herrick has already spent as much time in prison as he would receive if he were convicted again."

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