Confident they can find 12 jurors that will convict Moon Hill resident Alan Ager of growing marijuana for sale, county prosecutors have decided to bring him to trial once again.

However, they're doing it despite the reservations of two county supervisors.

Ager, a former foot doctor who's been avoiding conviction on federal and county pot charges for four years, beat the last rap on Aug. 20.

In a Marin Superior Court trial, prosecutor Teresa Leon persuaded only 10 of 12 jurors of his guilt. A conviction requires a unanimous verdict.

Ager claims that the 135 pot plants seized Sept. 11, 1996, at his property on Moon Hill, which separates San Geronimo Valley from Nicasio Valley, were grown only for his own use. He used the pot, his lawyer said, to relieve chronic, severe back pain.

Superior Court Judge Vernon Smith allowed Ager to invoke Proposition 215, the medicinal marijuana initiative approved by state voters last November, retroactively.

Supervisors Steve Kinsey and John Kress have told prosecutors they believe the language of Prop. 215 should be interpreted as broadly as possible. And Kinsey has told them that marijuana cases should go to the bottom of the list of those to be prosecuted.

Kinsey told The Light Wednesday that at Ager's request, he met with Paula Camena, who heads the criminal division of the District Attorney's Office and is thus far the only announced candidate to replace retiring DA Jerry Herman in the June 1998 election.

Kinsey said it would be "an overstatement" to say he asked Camena to drop the case, but he did tell her that "we have enough important life-threatening and health and safety-threatening cases" to consider, and that pot cases "should be our lowest priority."

However, he added, "if there's one thing I've learned it's that each of us has our special role" and politicians should stay out of the business of law enforcement.

But backers of Prop. 215, Kinsey said, should "be heartened" by the inability of the DA's Office to convict Ager so far, even though his case is maybe not an ideal test case for the new law.

For his part, Supervisor Kress on Wednesday confirmed that on a different occasion, he and Kinsey met with Camena and Sheriff Bob Doyle to discuss how Marin County would approach Prop. 215. (Doyle is also up for election next June).

Kress said that in the meeting he and Kinsey noted that "marijuana is legal for personal, medical purposes" and they told Camena and Doyle that "we should try to accommodate the law as liberally as we can."

Supervisors are working on a "rigorous and coherent policy" on Prop. 215, Kress said, and the supervisors wanted to talk with the Camena and Doyle about "the inconsistencies in the language of Prop. 215" in regard to medical pot distribution centers.

The prosecutor and the sheriff "certainly listened and understood our point of view," Kress said, but stopped short of saying any agreements were reached.

The supervisor said he doesn't remember if Ager's name was mentioned, but he said the specifics of Ager's case were not discussed. Kress said he would never suggest to prosecutors which cases they should or shouldn't bring to trial.

"I'm not going to interfere with the inner workings of the District Attorney's Office," he said.

As for Ager's case, Kress said, prosecutors "probably don't think [the cultivation of] 130 plants constitutes personal use."

But, he added, "I don't know if 12 jurors can be found to convict." If he were the prosecutor, Kress said, "I would give it long, hard thought before I decided to retry the case."

Nonetheless, Ager will be brought back to court, and prosecutor Leon thinks she can convict him.

"Was he cultivating for his own personal use, does he have a medical condition, and does he have a [doctor's] recommendation? Those are the big questions the jury will have to answer," said Leon, who believes the answers are yes, no, and no.

The prosecutor said she's not sure if she'll use the same strategy she used in the week-long trial in August. That will depend on what evidence Ager's new attorney enters into the pretrial "discovery" phase.

After the last trial, Ager told The Light he let go his long-standing attorney, Larry Lichter, because the lawyer's long-winded speeches coupled with Judge Smith's restrictive rulings and harsh admonishments eroded Lichter's "credibility" with jurors.