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'A Platform for a Cause' 

Forget about the alleged murder of a Guatemalan man at a Kneeland marijuana farm. Tony J Serra wants to put federal pot laws on trial.

The eccentric San Francisco defense attorney who has become a cult figure in the legal profession is defending Mikal Wilde, a 32-year-old Kneeland man accused of gunning down two of his workers at a large-scale marijuana growing operation in 2010, killing Mario Roberto Juarez-Madrid and critically wounding Fernando Lopez. Serra tossed a heck of a curveball recently, as Wilde's case plods toward trial in a federal courthouse.

In an 80-page motion to the court, Serra argues the case against Wilde should be dismissed because marijuana's classification under the federal Controlled Substance Act is "arbitrary and irrational," denying Wilde's rights to due process and equal protection granted under the Fifth Amendment. At first blush, the motion is a head scratcher. After all, what does marijuana's classification as a Schedule 1 Controlled Substance — the same designation given to heroin, ecstasy and LSD — have to do with an alleged murder?

It's the alleged connection between Juarez-Madrid's death and the 1,500-plant marijuana grow that opened the door for the feds to get involved. The federal government doesn't have jurisdiction over a typical local murder, but when said murder is allegedly committed in the furtherance of another federal crime — say, the manufacturing and distribution of more than 1,000 marijuana plants — then the door's open. That's why, back in 2012, the U.S. Attorney's Office took over the prosecution of Wilde, indicting him on charges of conspiracy to distribute marijuana, manufacturing more than 1,000 plants, murder in connection with a drug offense and murder with a firearm in the commission of a drug trafficking offense. Wilde faces life in prison if convicted.

In his motion — which should be considered a must-read for anyone critical of federal marijuana law — Serra cites dozens of court cases and studies to argue that marijuana has medical benefits and therefore is erroneously classified as a Schedule 1 controlled substance.

Further — with legal arguments titled "Cannabis is not a 'gateway' drug and does not cause death or brain damage" and "Cannabis by itself also does not cause fatal car crashes nor adverse effects on driving performance" — Serra argues, "cannabis prohibition itself is irrational, because when one compares the social effects of prohibition against the social effects of decriminalization, a rational balancing test or cost benefit analysis overwhelmingly favors decriminalization."

University of California Hastings College of Law professor David Levine said Serra's argument is a longshot, but an interesting one.

"Serra's MO is to put the government on trial," Levine said. "That's what he always does. ... He's taking this guy's case and using it as the platform for a cause." But, Levine said, Serra's really pushing the envelope with this one, saying a ruling in Serra's favor would be the epitome of "legislating from the bench."

Courts, Levine said, have a long history of reticence when it comes to stepping on Congress' toes and deciding what criminal laws should be. To make his point, Levine pointed to the U.S. Supreme Court case of Ewing V. California in which the court essentially said it empathized with a man given a life sentence for stealing golf clubs under the state's three-strikes law, but said it was up to the Legislature to decide if the law was flawed. Similarly, when a case came before the court challenging crack cocaine's mandatory minimum sentences as being racially biased, the court said the law may be bad policy but that it was a matter for Congress to decide. (A later court ruling gave district judges wider discretion in crack cases.) Levine said he can't imagine a scenario under which District Court Judge Edward Chen grants Serra's motion.

"I can see him saying, 'Mr. Serra, you're making excellent arguments and they should be made to the appropriate legislative committee,'" Levine said. But, the professor added, there's a method to Serra's madness, as he's raising appealable issues in the case and may be able to get a little latitude to raise some of these arguments during trial, where he would need only to convince a single juror to spare his client a life sentence. "This is setting things up for later," Levine explained.

And even if Serra is somehow successful in throwing the nation's marijuana laws into question, Levine said it's not likely Wilde will walk free from the murder allegation.

"Let's assume he wins this thing, the state would just take [back Wilde's case] and prosecute it," Levine said. "Then, it would be just a straight-up murder case."

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