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DA Must Reveal Confidential Informant in Med-West Case

DA Must Reveal Confidential Informant in Med-West Case
Photo by A.J. Herrington

Judge Laura W. Halgren ruled last week that the identity of a confidential informant (CI) must be released to the defense team of cannabis attorney Jessica McElfresh for the case against her to proceed. McElfresh is charged with several felonies in connection with her legal representation of San Diego medical cannabis company Med-West.

San Diego County Assistant District Attorney Jorge Del Portillo had asked Judge Halgren to keep the identity of the CI sealed, but she decided the person’s identity was material to the defense and must be shared.

After the hearing in San Diego County Superior Court, McElfresh said the prosecution now has several options, including sharing the information openly, or dropping the charges to preserve the anonymity of the CI. The DA could also request a gag order, to limit knowledge of the CI’s identity to the attorneys in the case.

McElfresh noted it was essential for her attorney to know the identity of the CI to properly defend the case. The credibility of the informant, she said, could be questionable, or it could be revealed that the person had a motive to lie.

The search warrants served in the Med-West case in 2016, and on the home and office of McElfresh earlier this year, all relied on information from the same CI. Judge Halgren, who has reviewed the various warrants, has said she has identified inconsistencies in the informant’s statements.

Other rulings by Judge Halgren at the hearing were also viewed positively by McElfresh.

The judge reaffirmed her decision that searches of seized physical and electronic files cannot include those of McElfresh’s other clients, and must be limited to individuals and entities specified in the warrant.

Prosecutor Del Portillo had requested for a second time that the search include any file or document that contained McElfresh’s name, despite the judge previously ruling against such a move. That broad a search would effectively hand over numerous privileged communications between the attorney and all her clients, whether or not they were included in the warrant.

McElfresh was grateful for that ruling from the judge, saying, “That issue kept coming back from the grave like a zombie.”

The case against McElfresh has received national attention because of its potential impact on the concept of attorney-client privilege. Lawyers for the National Cannabis Bar Association filed an amicus brief urging the court to uphold attorney-client privilege for other clients represented by McElfresh.

Judge Halgren acknowledged and accepted the brief, pleasing McElfresh. She believes that the District Attorney’s office has ulterior motive in prosecuting her, wishing to deny representation to legal marijuana businesses.

“This case was designed to discourage attorneys from entering into (the cannabis) space,” she said.

McElfresh’s next court appearance is set for October 27, where the prosecution is expected to report to Judge Halgren how they wish to proceed with the issue surrounding the identity of the confidential informant. The date for a preliminary hearing is also expected to be set at that hearing.

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