cannabisnews.com: Judge Not That Ye Be Not, Chuck





Judge Not That Ye Be Not, Chuck
Posted by CN Staff on February 07, 2003 at 13:29:00 PT
By Fred Gardner 
Source: Anderson Valley Advertiser 
In 1968 Charles Breyer, then a 26-year-old assistant district attorney in San Francisco, wrote in a Harvard College alumni publication, "I am fearlessly prosecuting flower children and other insidious threats to our way of life." As if his self-deprecating irony could mitigate the cruelty of his actions, as if he were just following orders as a young DA Today Breyer, 61, is a bow-tie-wearing U.S. District Judge, and he's still in the business of sending flower children to prison, and he still employs ironic smiles, gestures, and intonations to imply that he's just following orders, i.e., federal law, although now he's in a position to interpret the law and breathe humanity and rationality into it, as we, the people of California, tried to when we passed the medical marijuana initiative. 
Last week Judge Breyer rejected motions to dismiss federal marijuana cultivation charges against Ed Rosenthal, 58, who was providing cannabis clones (starter plants of known potency) for sale to Bay Area patients and caregivers entitled to grow their own under state law ( Prop 215 ). Rosenthal is the author and publisher of numerous books on marijuana cultivation and related topics. His column "Ask Ed" was a popular feature in High Times for many years, and would still be running in its glossy pages, amidst the fake buds and fake boobs, if Ed hadn't accused the lawyers who control the magazine of embezzling profits that the deceased founder had willed to the employees. But that's another story Ed was busted by DEA agents at his Oakland residence in February '02, on the same day that DEA Administrator Asa Hutchinson arrived in San Francisco to address the Commonwealth Club. ( What a coincidence! ) He was charged with cultivation of more than 100 plants, maintaining a place where illegal drugs are manufactured ( a warehouse in Oakland ), and conspiracy to grow more than 1,000 plants with Ken Hayes and Rick Watts, proprietors of the Harm Reduction Center on 6th St. in San Francisco. Hayes split for Vancouver and Watts was injured in a car crash, so Rosenthal is standing trial by himself. As we go to press on Tuesday Jan. 14 a jury is being selected in Breyer's courtroom on the 19th floor of SF's federal building ( with the judge doing his utmost to exclude anyone who feels strongly about reforming the marijuana laws ). Opening arguments are set for Tuesday Jan. 21. Rosenthal's main hope for a dismissal was based on the fact that his grow-op had been authorized by the city of Oakland, whose City Attorney had determined that the same section of the Controlled Substances Act that makes it legal for undercover cops to obtain, handle, and sell illicit drugs makes it legal for city officers to obtain, handle and sell cannabis. The relevant section of the CSA, 885( d ), states that "no civil or criminal liability shall be imposed" on any state or local "authorized officer who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances." Judge Breyer, in granting the US Department of Justice an injunction against the Oakland Co-op, ruled in September '98 that section 885( d ) could not protect deputized cannabis providers because to apply it thus would violate the basic purpose of the Controlled Substances Act. Breyer seemed skeptical that Rosenthal was not familiar with his ruling that section 885( d ) didn't apply. He seemed peeved that the defense lawyers kept citing it. He kept referring to his draconian interpretation as "the common-sense reading of the statute," but in fact it's a convoluted re-writing. Laws are supposed to mean what they say. If Congress worded the CSA too loosely, Breyer could and should kick it back to them for revision, meanwhile freeing Ed and allowing Oakland and other California jurisdictions to serve as "laboratories of reform" with respect to the earth-is-flat marijuana laws. One of Ed's lawyers, Joe Elsford, reminded Breyer that the stated purpose of the CSA was to promote the public health, and that Oakland's use of section 885( d ) was consistent with, not antithetical to the act. Breyer's response a non-sequitur about "the supremacy of federal law" was delivered with a smile of triumph, and for a second I could see a smart-ass in the Harvard Freshman Union winning a verbal joust, not fair and square but by resort to false logic, false facts, and false authority. More Free Advice "Jury Nullification" is as awkward and un-sexy a term as "Harm Reduction." And "the Fully Informed Jurors Association" sounds self-congratulatory, to boot. FIJA and the movement it's trying to inspire should refer to "Jurors' Rights," and the exercise of those rights should be called "Jury Power." And God knows we need it.  Dr. Fry's DEA Registration Revoked ( part 2 ) The September 28, 2001 DEA raid on Mollie Fry and Dale Schafer's house in rural El Dorado county could not have come at a worse time, says Dr. Fry. "Dale was trying to learn to grow indoors. It's almost impossible. You have to spend three hours a day every day playing with the plants. Ours got covered with spider mites and died. I had put them under the deck, not under lights, figuring Dale would compost them. We had nine plants growing for me, maybe four feet tall, in full bloom, and three plants from a woman I knew, a legitimate patient, who was being evicted and had asked Dale to take care of her plants for her. So we had 12 viable plants, and two of them had toppled over in a windstorm so Dale brought them into my bedroom to trim. It must have looked like a Christmas tree farm. "And the house! At the time of the raid there was a mother and four children living here, so things were a little disordered. We've had about 50 people living in our house over the years . When they handcuffed me I put my hands above my head and said 
'Thank you, praise you, thank you for making my book a bestseller! Thank you, praise you for electing my husband district attorney of El Dorado County!' The El Dorado cops were there and the DEA. I must have prayed a 20-minute prayer. They would ask me a question and I would answer yes or no and go right back to praying. I needed help. And finally they went away. But I think [El Dorado County DA Gary] Lacy got the word that Dale was really running to win, and a few days after he was re-elected, we heard that he had gone to the grand jury to get Dale indicted." A DEA official sent Fry an order-to-show-cause dated March 7 '02 advising that her prescription-writing privileges would be revoked because "It is inconsistent with the public interest for a DEA registered practitioner to live in a residence wherein large quantities of a controlled substance are being stored, cultivated, manufactured and/or processed for distribution and/or sale. In addition, it is inconsistent with the public interest for a DEA registered practitioner to be engaged in the illegal sale of a Schedule I controlled substance such as marijuana at the practioner's registered location." The notice gave Fry 30 days to request a hearing to defend herself. Fry hired a San Francisco lawyer named J. David Nick to represent her. He apparently missed the 30-day deadline. A letter to Fry dated Dec.13 revoked her DEA license, noting that she hadn't responded to the original order to show cause and expanding the list of her alleged failures to comply with federal law. ( Nick has not returned calls requesting his side of this fiasco. ) Fry says that the revocation will have a significant impact on her practice because a surprising number of her patients prefer Marinol to the crude plant. "Especially the chronic pain patients," says Fry. "I started out not wanting to prescribe any pharmaceuticals, but quite a few people really love Marinol. It's hard to say how many, because it's so expensive [about $10/pill]. So unless they have the right insurance . All my Kaiser patients have to decline it because Kaiser will not pay for it. All my Welfare patients have to decline it, and I have quite a few, because I give massive discounts. I thought the whole idea was that it's not medicine for the rich, it's medicine for the sick." Fry has now hired Nedra Ruiz to argue to the DEA that it would be "arbitrary and capricious" to revoke her prescription privileges without a hearing. "Dr. Fry has never been convicted of any offense, state or federal," says Ruiz. "Usually when people have their privileges revoked they've entered a plea or been found guilty of something, or a serious narcotic is involved In this case some undercover agents claim that Dr. Fry told them where they could get a discount on materials to grow marijuana. That kind of hearsay statement, unchallenged, is the basis for their action." Ruiz intends to argue that Fry's activities were legal under state law, and that "it would be a gross violation of her right to due process to not grant her a hearing." A negative ruling will be appealed to the Ninth Circuit Circuit. "She will have an opportunity to refute the claims that she is recommending marijuana without conducting proper examinations," says Ruiz. On Friday, Jan 3, state Medical Board Investigator Tom Campbell left a message on the answering machine. Mollie paraphrases it as, "Heads-up to Dale. We've referred a couple of the cases over to the Attorney General's office, and we're going to be reviewing some more." Fry thinks that DA Gary Lacy sought the medical board investigation. "Every patient I've been asked about by the medical board has passed through the criminal justice system in either El Dorado or Sacramento County," Fry points out, "and the complaints all came from district attorneys, not the patients themselves." Dale is thinking of enjoining the Medical Board from making any moves against Mollie's license on the grounds that Prop 215 says, "no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes." Fry's practice has dwindled to an estimated 100 patients/month, most of them seeking re-certification. Her physician's assistant is in training to become a paramedic fireman and she hasn't found a longterm replacement because, she says bluntly, "everyone is scared." Last year she and Dale paid $3,000 in taxes, mostly in self-employment tax. They're in debt and have raided the kids' college fund and can barely cover their bills.  Rekoon v. Mikuriya This is how Barry Rekoon, the San Mateo lawyer who subpoenaed Tod Mikuriya costing the Berkeley psychiatrist a morning's worth of consultations rationalized his decision not to pay expert-witness fees: "I'm only going to ask him a question or two to confirm that he wrote the letter of recommendation." Your correspondent asked Rekoon, "What if the prosecutor asks the doctor questions that call for expertise like how he made his diagnosis?" Rekoon replied that he would object on grounds of relevance and would be sustained "without a doubt." As it turned out, THM drove down to San Mateo Jan. 3 to testify that he had indeed approved the cannabis use of Robert Whitacre, a 52-year-old man with a bad back. Rekoon asked 14 questions, after which Assistant DA Morris Maya asked 51 questions on cross-examination, delving into every aspect of Mikuriya's diagnosis and practice ( over Rekoon's one futile objection ). Rekoon then asked two more questions on re-direct, and Judge Mark Forcum asked three of his own, ending with "Would marijuana help my acid reflux condition?" Mikuriya restrained an impulse to advise the judge to limit his alcohol intake... Judge Forcum expressed strong disapproval of the law created by Prop 215 "I don't like it. It invites people who have marijuana addiction to claim they're using it as medicine. It really troubles me that, in a case like this there's no way to know if the cultivation was for personal use or selling it " Robert Whitacre was busted by the San Mateo sheriff for cultivating two ( 2 ) plants! Judge Forcum said he was reluctant to assume that Whiteacre was growing for personal use, but that he had to, under the law, and given Mikuriya's testimony, and so he had to acquit. But the Department of Corrections decided to imprison Whitacre for six months for violating the terms of his parole, and so the poor man was led off by a bailiff while the judge commented, "Your attorney did a nice job." It's no coincidence that San Mateo DA George Fox was a leading opponent of Prop 215. A young assistant DA dragging Dr. Mikuriya into court and conducting a somewhat insulting cross examination knows he's looking good in his boss's eyes... The three cases on Judge Forcum's calendar preceding Whitacre all involved violations of the drug laws. Note: Fred Gardner was formerly the Public Information Officer for San Francisco's District Attorney, Terence Hallinan. Source: Anderson Valley Advertiser (CA) Author: Fred Gardner Published: January 15, 2003Copyright: 2003 Anderson Valley Advertiser Contact: ava pacific.net Details: http://www.mapinc.org/media/2667 Related Articles & Web Sites:CMCRhttp://www.cmcr.ucsd.edu/Tod H. Mikuriya, M.D.http://www.mikuriya.com/Conant vs. Walters & Judge Kozinskihttp://freedomtoexhale.com//cw.htmEd Rosenthal's Trial Pictures & Articleshttp://freedomtoexhale.com/trialpics.htmDoctors Without Ordershttp://cannabisnews.com/news/thread15398.shtmlDoctor Can Still Write Marijuana Recommendations http://cannabisnews.com/news/thread15315.shtml
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