On March 25th, Kevin Metcalfe was sentenced to 20 years jail for the fatal shooting of an intruder. We were told that the lengthy criminal record of the man who entered Mr. Metcalfe's property and was allegedly shot by him, was not admitted in Mr. Metcalfe's trial. It is also reported that Prosecutor Mr. Rick Damerville stated before the judge that Mr. Metcalfe was 'addicted to marijuana.' He implied that for Mr. Metcalfe to have applied for a gun license, he should have disclosed that he was "addicted to marijuana".

“An Ocean View man convicted of manslaughter for shooting and killing an intruder was sentenced Thursday to 20 years in prison.
Kevin Metcalfe, 49, also received a 20-year sentence for using a firearm in the commission of a separate felony. The terms will run concurrently.
Metcalfe shot and killed 44-year-old Larry Kuahuia at about 10:30 p.m. on May 6, 2009. Police and prosecutors said Kuahuia — whose criminal record included five convictions for felony -burglary and two for felony theft — was on Metcalfe’s property to steal marijuana from a greenhouse….

Deputy Prosecutor Rick Damerville said Metcalfe’s medical marijuana certificate had lapsed when the shooting occurred.
He accused Metcalfe of lying when registering the shotgun by swearing he wasn’t addicted to marijuana or using the drug unlawfully.

“He got a loaded gun, addicted to marijuana, and on the night of May 6, 2009, he had an impairment of his judgment that resulted in the unnecessary killing of a human being,” Damerville said…

Hawaii Tribune-Herald March 26, 2010

We ask that our Prosecutors, Judges and Jury work to deliver truth and justice for the residents of Hawaii County.

It is with concern that we read on March 26 that Ocean View resident and patient Kevin Metcalfe was sentenced to 20 years for the fatal shooting of a man who appeared to have been attempting to steal medical cannabis plants at Metcalfe’s home. This is a tragic case which underscores the violence and crime that is perpetuated by cannabis prohibition laws. Our sympathies extend to the family of the deceased.

Equally disturbing is the way in which defendants such as Mr. Metcalfe are characterized during trial. At one point, prosecuting attorney Rick Damerville referred to Mr. Metcalfe as being “addicted” to cannabis. There was no basis for that statement. It was insulting and dehumanizing to diminish that person to a repugnant status when there had been no findings to substantiate that claim.

We hope defamation of character and the clinically proven false representations of cannabis will no longer be allowed in court. Using “reefer madness” to argue a point in court no longer works or is acceptable in this day and age.

There are many people in this community who would like to see a more truthful representation of the facts regarding cannabis. And, in court we would like prosecutors who are less sensationalist and harsh in their treatment of people who are entitled to use cannabis to treat medical problems, as recommended by a doctor, and as sanctioned by state law.

Matthew Rifkin
American’s for Safe Access (Big Island Chapter) & member of the Board of Directors of Peaceful Sky Alliance.

Seattle, WA — Seattle’s new city attorney is dismissing all marijuana-possession cases, starting with those that were already under way under the old city attorney.

City Attorney Pete Holmes, who beat incumbent Tom Carr in November, said he dismissed two marijuana-related cases in his first day on the job, and several others are about to be dismissed.

In addition, his new criminal division chief, Craig Sims, said he is reviewing about 50 more cases. Unless there are “out of the ordinary circumstances,” Sims said, the office doesn’t intend to file charges for marijuana possession.

“We’re not going to prosecute marijuana-possession cases anymore,” Holmes said Thursday during a public interview as part of Town Hall’s Nightcap series. “I meant it when I said it” during the campaign.

Seattle voters approved Referendum 75 in 2003, making marijuana the lowest priority for local law enforcement. City records show that Carr still prosecuted many cases.

In the first six months of 2009, Carr declined eight of the 62 marijuana-related cases filed with his office, a city report shows. Of the cases he took up, marijuana was the only charge in 21 cases. In the second half of 2008, Carr dismissed 21 marijuana-related cases and filed 60 others. Of those, marijuana possession was the only charge in 20 cases.

Holmes’ policy change comes amid several state-level efforts to decriminalize or legalize marijuana.

A ballot initiative filed Monday would legalize adult marijuana possession, manufacturing and sales in the state. The Legislature is also considering two bills to decriminalize and regulate marijuana, or to make it legal in the state.

The drug would remain illegal under federal law.

Source: Seattle Times (WA)
Author: Emily Heffter, Seattle Times Staff Reporter
Published: January 15, 2010
Copyright: 2010 The Seattle Times Company
Contact: opinion@seatimes.com
Website: http://www.seattletimes.com/
URL: http://drugsense.org/url/k8wo8Yif

CannabisNews — Cannabis Archives
http://cannabisnews.com/news/list/cannabis.shtml

Another case where we know of the Office of The Prosecuting Attorney prosecuting a case that should have been dropped if Mr. Kimura and his office were in compliance with the Lowest Law Enforcement Priority of Cannabis Ordinance is described below:

Hawaiian Acres Resident had an amount that was below the amount limited to ‘Adult Personal Use’.

How would you like threats of a jail term hanging over your head for three years? Too many people are still in court over Cannabis charges that should have been dropped after November 4, 2008 when the Lowest Law Enforcement Priority of Cannabis Ordinance was passed. It's against this County Law that they are still being prosecuted.

A man with three medical marijuana licenses on his fridge was raided in 2006 by Officer John Weber. This guy has been in court ever since. He had 23 plants and an alleged amount of dried material. Officer Weber denied that there were three marijuana licenses on the fridge but the court has since found that in fact, there were three medical marijuana licenses applicable to the property. Officer Weber also weighed the material that was ‘drying’ but not ‘dry’. When it was weighed, stems and stalks were included. In the specific regulations relating to dried product, ONLY the flowering part of the plant (the buds) are to be counted. What it did back then was allow Weber to arrest our Hawaiian Acres man because in theory he was ‘over’ the limit allowed.Then the person whom this case concerns was indicted by a Grand Jury and has been in court ever since.

The point is this: THREE licenses entitle one to seven plants each which would add up to 21 plants. Even if there was, in addition,  some dried Cannabis, the weight of the stems and stalks should never have been counted. And besides .. that case should never have wasted this much time in a court room with all of the costs associated. Three years later and there still hasn’t been a hearing.

It’s just plain wrong. Prosecuting this case is a waste of County money and it’s a waste of time. And it is NOW the LOWEST PRIORITY for the Department of Public Safety in this county to spend money on searching for Cannabis, arresting for Cannabis use or possession or prosecuting for Cannabis use or possession whenever such a case involves 24 or fewer plants for adult personal use.

With three adults on the property, the ordinance would suggest that if they had 60 plants and some dried material (the equivalent of 12 plants), then the police should walk away from that too. The prosecutor needs to go through the books and look at how many more cases like the two already posted here, are about cases involving ‘Adult Personal Use’ as defined by the ordinance.

Here’s that section of the ordinance again for anyone who wants to see just what Mr. Kimura won’t see. According to the law:

Section 14-100. “County Prosecuting Attorneys:”

To the full extent allowed by the Constitution of the State of Hawai‘i, the people, through their county government, request that neither the county prosecuting attorney nor any attorney prosecuting on behalf of the county shall prosecute any violations of the sections of chapter 712-1240 of the Hawai‘i Revised Statutes regarding possession or cultivation of cannabis in a manner inconsistent with the Lowest Law Enforcement Priority, as described in section 14-98 and 14-99 of this article; in cases where the amount possessed or grown is less than twenty four plants or the dried equivalent, possession for adult personal use shall be presumed.

The problem is they need to get it.. It’s the lowest priority. Wake up! The 35,000 voters who passed this ordinance don’t want you prosecuting any more cases of ‘adult personal use’.

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To compare with case #1, go to this link http://peacefulskyalliance.com/wp-admin/post.php?action=edit&post=205&message=1

IF YOU KNOW OF A CASE OR ARE INVOLVED IN A CASE THAT INVOLVES 24 or fewer plants on private property and involving adults over the age of 21 years and you are being prosecuted by Hawaii County then please contact Peaceful Sky Alliance and let us know the details.

Mr. Jay Kimura is the chief Prosecutor for the County of Hawaii as part of the division of "Public Safety." Mr. Kimura's department has a budget of approximately 9 million dollars per year. He has been in office since 1992 and was elected unopposed last year.

The Lowest Law Enforcement Priority of Cannabis Ordinance is a document of nearly 2,000 words that sets new priorities for policy concerning Cannabis in the County of Hawaii. The ordinance prescribes for all County officials and personnel a new direction for Hawai’i County and a new set of priorities that do not involve search, seizure, arrests, prosecution, harassment or intimidation of individuals for ‘adult personal use’ of Cannabis as defined by the ordinance.

Last month the Peaceful Sky Alliance submitted a 60 page document to Hawaii County Council citing numerous departments and naming numerous County Officials who have obstructed the Ordinance or failed to make the necessary changes in policy and practice in order that the County of Hawaii is in compliance with the Lowest Law Enforcement Priority of Cannabis Ordinance.

One of the officials named in the document is Mr. Jay Kimura who heads the Office of the Prosecuting Attorney. His department continues to prosecute cases of ‘adult personal use’ as defined by the ordinance (Cultivation or possession of 24 plants or 24 ounces of dried material on private property by adults over the age of 21 years).We have posted the details of one such case and we plan to post the details of others in the future.

Far from being confusing or unclear, Hawai’i County’s own ‘Lowest Priority’ ordinance was modeled after similar ordinances successfully implemented in other counties and municipalities around the country. There is a special section of the ordinance that addresses the fact that the Prosecuting Attorney for the County of Hawaii is not permitted to spend county funds to prosecute cases which fall under the definition of ‘adult personal use’.

Since our council was served with this summary document, Mr. Kimura has appeared before Council during a special hearing and expressed open defiance and opposition to the law passed by 35,000 voters. Below is the section of the summary document that addresses the failings of Mr. Kimura and his office:

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Office of Prosecuting Attorney not yet in Compliance:

Mr. Jay Kimura of the Office of the Prosecuting Attorney has several times made negative comments concerning the validity of the ordinance as it is written into law. He was heard to make negative remarks about this ordinance when sworn into office for his current term at the Inauguration Ceremony at Afook Chinin Auditorium on December 1, 2008.

In stating a conflict of the “Separation of Powers” doctrine, Mr. Jay Kimura has ignored the fact that as the constitution is written, Federal law, while the “highest law of the land,” does not overrule laws passed by states or local ordinances such as the Lowest Law Enforcement Priority of Cannabis Ordinance.

Mr. Jay Kimura has received a letter from Peaceful Sky Alliance regarding statements he made to the effect that he was waiting for an opinion from the Office of Hawai’i State Attorney General to determine the legality of the ordinance. The chain of correspondence between Mr. Kimura and Mr. Mark Bennett has been requested by the Board of Peaceful Sky Alliance and to date, none has been provided.

Chapter 14, Article 16 of the County Code requires a bi-annual report submitted as follows:

…These reports shall include but not be limited to: the number of all arrests, citations, property seizures, and prosecutions for all Cannabis offenses in the county of Hawai’i, the number of complaints regarding marijuana eradication over-flights; the breakdown of all Cannabis arrests and citations by race, age, specific charge, and classification as infraction, misdemeanor, or felony, the estimated time and money spent by the County on law enforcement and punishment for adult Cannabis offenses, and any instances of officers or deputies assisting in state or federal enforcement of adult Cannabis offenses. These reports shall be published with the cooperation of the County of Hawai’i’s Prosecuting Attorney, the Chief of Police, and all associated law enforcement staff in providing needed data.

While a summary of the “arrests that were the result of those investigations initiated prior to November 4, 2008” was provided, this does not meet the requirement of the ordinance that the report include estimated time and money spent by the County on law enforcement and punishment for adult Cannabis offenses. This information has not been provided by the Office of the Prosecuting Attorney. An audit of the time and money spent by Mr. Kimura’s Office for the prosecution of adult Cannabis offenses has been requested of the Legislative Auditor.

Mr. Jay Kimura received a letter from Peaceful Sky Alliance dated September 9, 2009 notifying him of at least one case that concerns prosecution for an offense that would now be classified as ‘adult personal use’ and would not be subject to arrest or prosecution by our County’s police and prosecution. We have asked Mr. Kimura to review any such cases on the basis that the ordinance states the following request of his department:

…Neither the County Prosecuting Attorney nor any attorney prosecuting on behalf of the County of Hawai’i shall prosecute any violations of the sections of Chapter 712-1240 of the Hawai’i Revised Statutes regarding possession or cultivation of Cannabis in a manner inconsistent with the Lowest Law Enforcement Priority §14-100 COUNTY PROSECUTING  ATTORNEYS

To date, we have not received a reply from Mr. Kimura concerning this matter.

Mr. Kimura should be required to issue a public statement of his full support for the implementation of the ordinance. His full cooperation is required so that appropriate accounting procedures are put in place in order to meet requirements of the County Code. Further, Mr. Kimura should provide public assurance that his department is currently prosecuting no cases of ‘adult personal use’ where this would contravene the Lowest Law Enforcement Priority of Cannabis Ordinance.

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