Federal appeals court revives marijuana grow case

WASILLA — A federal appeals court has resuscitated the criminal prosecution of a local couple accused of growing marijuana.

U.S. District Court Judge John Sedwick eviscerated the case against Trace and Jennifer Anne Thoms when he threw out most of the prosecution’s evidence in April of last year, saying he didn’t find the officer credible who applied for the search warrant that uncovered the 500-plant grow.

That officer, Kyle Young with the Mat-Su Narcotics Team, had claimed he smelled the Thoms’ marijuana as he drove passed their house. A smell expert testified for the defense that between the distance the smell had to travel, the fact that it was winter, and the anti-odor setup the Thoms’ employed, the odds of Young smelling anything were highly improbable.

But the prosecution appealed to a higher court, saying that before tossing out the search warrant, Sedwick should have held a hearing to listen to evidence from both sides.

Prior to the appeal, prosecutors had requested that type of hearing but Sedwick ruled it was unnecessary. A magistrate had already held one.

“The evidence presented renders it highly improbable (indeed, it seems to this court in light of all the evidence, virtually impossible) that Investigator Young could smell the marijuana grow under the circumstances,” Sedwick wrote. “That conclusion would not change simply because this court heard the evidence all over again.”

But the magistrate who had heard all that evidence had actually recommended a finding against the Thomses, finding Young credible enough for the case to move forward. Sedwick essentially overruled the magistrate.

Federal appeals court judge Carlos Bea wrote in an opinion filed June 29 that if Sedwick had overruled the magistrate in a manner that favored the prosecution over the Thomses, he would have been required by the defendants’ constitutional rights to due process to hold a second hearing.

But prosecutors don’t have due process rights, Bea wrote, and the question of what to do when prosecutors aren’t allowed a second hearing isn’t one the court had answered until the Thoms ruling.

The court ruled that Sedwick should have held the hearing. Indeed, in so ruling the court actually made a rule that all judges should hold such a hearing unless the magistrate’s initial ruling was so far outside the law that had a jury made the same ruling the judge would have been forced to throw it out.

The reason? Hearing someone say something on an audio recording or reading a transcript is different from watching someone say it in person.

“Live testimony is the bedrock of the search for truth in our judicial system,” Bea wrote.

And while some psychologists believe that seeing a person testify in person actually hinders a person’s ability to tell if the testimony is truthful, courts have long held that such “demeanor evidence” is a big deal.

“Perhaps seeing investigator Young’s demeanor as he testified to what he smelled would have changed the outcome,” Bea wrote.

And, the judge noted, while the state doesn’t have rights to due process, being essentially found to have perjured himself in a federal court means a lot for Young professionally and, potentially, legally.

“Before a district court calls a police officer a liar,” Bea wrote, “the judge should look him in the eye first.”

Bea and his colleagues ordered the case sent back to Sedwick for an evidentiary hearing and a new ruling, but left the size and the length of that hearing up to Sedwick.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.