cannabisnews.com: L.B. Tangled in Murky Marijuana Law





L.B. Tangled in Murky Marijuana Law
Posted by CN Staff on February 18, 2003 at 07:09:27 PT
By Wendy Thomas Russell, Staff Writer
Source: Press-Telegram 
Long Beach -- Sipping coffee and thumbing through a 2-inch-thick stack of documents, 69-year-old Nathan Smiley looks as though he could be planning his retirement. But the documents have nothing to do with 401(k)s or IRAs. They are court transcripts and legal motions left over from his trial involving felony marijuana charges in Long Beach Superior Court. 
Two years ago, the white-haired Fontana man who walks with a limp was arrested and charged with cultivating 19 marijuana plants in a rental apartment in Long Beach. He says he had hoped marijuana would dull the pain of his ailing hip, so he acquired a doctor's recommendation to try it. Local prosecutors said they did not believe Smiley fit the description of a legitimate patient under Proposition 215, the 1996 state ballot initiative that legalized medicinal marijuana in limited circumstances. They still don't. After Smiley's trial ended in a hung jury, Long Beach Judge Richard Romero dismissed the case last month "in the interest of justice.' But city prosecutors convinced he was cultivating the drug illegally refiled the case last week. Whether or not Smiley is an ideal spokesman for medicinal marijuana, one thing is certain: He has been pulled into one of the state's more contentious and confusing areas of law. Rife with ambiguity, Prop 215 still invokes a tangle of mixed messages from city, state and federal agencies. And while police, prosecutors and judges try to sort it out, people such as Nathan Smiley are left wondering where they stand. "My hindsight tells me that there was no attempt by the state of California, county of Los Angeles or city of Long Beach to establish any procedures, rules, issue any permits, give any permission, or in any way supervise the raising of medical marijuana,' Smiley says. "But instead, they treat sick people as if they were some kind of drug addicts.' Now going into its sixth year on the books, Prop 215 is still a procedural and jurisdictional nightmare. California's top prosecutor, Attorney General Bill Lockyer, has given little guidance to implementing the vaguely worded law, so local authorities must interpret the language for themselves. And many agencies including the Los Angeles district attorney's office have refused to draft policies that would put prosecutors on the same page and take a stand on some of the law's murkier issues. Some cities have taken up the cause themselves. San Diego recently became the latest city in the state to issue proactive guidelines on Prop 215. Among other things, city officials ruled on the amount of pot they deemed suitable for a patient to possess: up to 1 pound. Meanwhile, the federal government has begun to throw its weight around. Because pot is still strictly off limits under federal law, the U.S. Attorney has the authority to bring federal charges when the state can't or won't. Most recently, that office won a possession case against self- proclaimed "Guru of Ganja' Ed Rosenthal, who maintains he was growing cannabis in San Francisco for the sick and dying.  Case by case Long Beach police say they abide by the law both its letter and its spirit and they evaluate marijuana users on a "case-by- case basis.' What that means is that officers look over suspects, eyeball their marijuana and scan their doctors' notes the closest thing to a prescription patients can get before deciding whether the suspects are more likely patients or recreational users. To activists, this procedure amounts to inappropriate "medical determinations' by police officers. To police, it's the only way to enforce a law with such obvious open-ended questions. Like all other cases, officers make arrests based on what they believe the evidence shows, says Officer Greg Schirmer, a spokesman for the Long Beach Police Department. If police arrest a legitimate patient, he says, that will get sorted out in court. "As far as enforcement,' Schirmer says, Prop 215 "doesn't give patients immunity from arrest, but it gives them limited immunity in a trial.' In other words, the doctor's note may be raised as a defense at trial, but it doesn't protect a person from arrest. If it did, every user with the wherewithal to forge a physician's signature could argue immunity. LBPD keeps no records on how many defendants have claimed Prop 215 exemptions, and the district attorney also was unable to track those cases. But in the past two years, at least four cases were filed in Long Beach. David Zink, an arthritis sufferer, was arrested in August 2000 after police seized 30 cannabis plants from his garden. He was charged with marijuana cultivation, possession for sale and manufacturing a controlled substance, but prosecutors dismissed the case three months later for lack of evidence. Smiley was arrested in February 2001 and charged with cultivation after police found 19 plants in an apartment he had rented. His jury was hung 7 to 5 in favor of guilty, and a judge dismissed the case over the prosecution's objection. The case has since been refiled. Joseph Czuba said he was using marijuana to combat the effects of heart palpitations and stomach ulcers when he was arrested in May 2001 and charged with cultivation and sale of mari juana. A judge dismissed his case in April 2002 based on a defense motion. Marie Rutledge, a homeless woman who said she suffered from asthma, muscle spasms and migraines, was arrested in May 2001 and charged with possession and cultivation of marijuana, as well as public intoxication. Police found two plants, as well as dried marijuana, in her car. She was convicted at trial, but an appellate court recently overturned the conviction. Allen Fields, head deputy of the Los Angeles district attorney's Long Beach branch, says his prosecutors evaluate Prop 215 cases as they do any other case. They look at police reports, inquire into the validity of the doctors' notes and depend on witnesses to paint a picture of the individual's circumstances. "We only file those cases where we think it's a bogus issue in terms of medical marijuana,' Fields says, "or we think somebody is cultivating for the purpose of sale.' Fields couldn't say whether he'd ever declined to file a case in which a Prop 215 defense had been raised to police, but he said he respects the law as written and enforces it as written. "We look at all the factors of a case, and we try to do what's fair, and we try to follow the law,' he says. "Like anything in law, it's a question of interpretation.' Judge Romero, who dismissed the Smiley case, says judges operate under a similar philosophy. Declining to comment on the Smiley case specifically, Romero says it's not uncommon for laws to allow a fair bit of wiggle room. Prop 215 cases are no different, he says. Fields' boss, District Attorney Steve Cooley, once considered issuing uniform enforcement guidelines to his prosecutors about Prop 215 cases. Two years ago, he said through a spokeswoman that he was working to draft written guidelines that would "put prosecutors on the same page.' The office created several working groups to look at the issue, but the plan for a formal policy has since been abandoned. Chief Deputy District Attorney Curt Livesay says any new Prop 215 guidelines would simply instruct prosecutors to follow the law, exercise discretion and treat these cases like any other.  State law According to the California Penal Code, the Compassionate Use Act of 1996 acts in the following way: "To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine or any other illness for which marijuana provides relief.' It goes on to state that a patient or a patient's caregiver shall be exempt from possession and cultivation charges. In a landmark state Supreme Court decision last summer, the burden of proof in these cases was shifted from the defendant to prosecutors. Now, defendants must only provide "reasonable doubt' that they had legitimate medical reasons for using cannabis, rather than proving that point by a "preponderance of the evidence.' But federal magistrates have made it clear that Prop 215 flies in the face of federal law. In May 2001, the U.S. Supreme Court held that the Oakland Cannabis Buyers Cooperative had no medical-necessity defense to manufacture and distribute marijuana. In addition, the court noted that marijuana was still considered a schedule 1 drug with no accepted medical use. The decision opened the door to many U.S. Drug Enforcement Agency investigations into California medicinal-marijuana clubs, set up to dispense marijuana to patients with doctors' notes. According to the Drug Policy Alliance, a national organization supporting drug-policy reform, the U.S. Attorney has filed at least 30 such cases, mainly in Northern California. On Jan. 31, Rosenthal was convicted of felony drug possession after a San Francisco jury found he had grown more than 100 cannabis plants. He now faces five to 40 years in federal prison. The jury was not allowed to consider Rosenthal's medicinal- marijuana defense. To Long Beach patients' rights advocate Bill Britt, who uses marijuana to counter the effects of epilepsy and post-polio syndrome, the Rosenthal case is the most recent example of repeated violations of states rights. "Unlike San Francisco,' he says, "we don't have to worry about the federal government ... down here because our own law enforcement are ignoring the law just as much as the federal government.' Patients scared Patients here say they continue to live in fear. "Potential patients are terrified,' Britt says. "Nobody can grow. Every patient I know is looking for a place to grow. Everyone who does grow is getting arrested.' Attorney J. David Nick, who has handled hundreds of Prop 215 cases, agrees. He says many of his clients are trying to live their lives legally and are astonished when they find themselves the subject of criminal investigations. Prosecutors "need to know the pain they've caused individuals who, in their hearts, waited for this law to pass in order to be able to come out of the closet and use this in a legal manner,' he says, adding that the prosecutions often put undue financial burdens on individuals and taxpayers as well. Some cities, including San Diego, have developed task forces to enact Prop 215. Some have suggested creating registries or ID cards for medicinal-marijuana patients, and giving them more specific parameters in which to use marijuana such as how many plants are suitable and who classifies as a "caregiver.' Activist Diana Lejins contends Long Beach should follow suit. Most "of the large cities in this state now all have some type of task force or committee in place that is addressing this issue,' she says. "What we need are guidelines.' Drugs: Officials' mixed approach to Prop 215 leaves many who use medicinal pot not knowing where they stand.Source: Long Beach Press-Telegram (CA)Author: Wendy Thomas Russell, Staff WriterPublished: Monday, February 17, 2003 Copyright: 2003 Los Angeles Newspaper GroupContact: speakout presstelegram.comWebsite: http://www.presstelegram.com/Related Articles & Web Site:Ed Rosenthal's Pictures & Articleshttp://freedomtoexhale.com/trialpics.htmPot Patients' Lawyer Wants DA Off The Casehttp://cannabisnews.com/news/thread15046.shtmlPot Laws Costing Plentyhttp://cannabisnews.com/news/thread14271.shtml
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Comment #12 posted by afterburner on February 18, 2003 at 20:53:13 PT:
The big picture
God is love. God created all the seed-bearing herbs for our food. God said, "Do not murder."One love. One heart. Let's get together and feel alright. Hear the children crying, "One love," hear the children crying, "One heart" saying, "Give thanks and praise to the Lord, and I will feel alright," saying, "Let's get together and feel alright." ...Let's get together to fight this holy armageddeon. One love. So when the Man comes there will be no doom. One song. Have pity on those whose chances grow thinner. There ain't no hiding place from the Father of Creation. One love. One heart. Let's get together and feel alright. I'm pleading to mankind. One love. One heart. Give thanks and praise to the Lord, and I will feel alright. -Bob Marleyego destruction or ego transcendence, that is the question.
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Comment #11 posted by Virgil on February 18, 2003 at 19:50:03 PT
Disney's Musicman that was on Sunday
Did anyone see the musical Musicman that was on this last Sunday. It is an old remake of an older movie, but there is one interesting thing that was incorporated into this time honored musical.At the beginning of the movie the flm-flam MusicMan needed to find something for the townspeople to be afraid of so he could save them by getting the youth into a boys marching band. In this case it was a pool hall that would corrupt the youth into things like saying that horrible word, swell.P in pool rhymes with T as in trouble would be the words of the song that told the townspeople they had something to fear. Cannabis would help them and us too with all the anxiety.Free Cannabis For Everyone. Everyone Free Cannabis. Cannabis will find the pain.
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Comment #10 posted by FoM on February 18, 2003 at 19:38:32 PT
Thank You
I wanted to say that I seldom say how I really feel about important issues like war. Because of me doing CNews I check myself quite a bit. I believe in peace. I don't want to see anyone killed. If believing in a peaceful solution means I'm weak well then I'm weak. I don't believe in killing anyone. If I was attacked I would defend myself but that is as far as I can go in good conscience. Thank you all for looking at the big picture. 
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Comment #9 posted by afterburner on February 18, 2003 at 19:22:35 PT:
mayan - on critical mass & a fork in the road.
We have achieved critical mass and the mainstream media can no longer ignore the cannabis law reform movement or the peace movement.The Hundredth Monkey 
by Ken Keyes, Jr.
http://www.spiritual-endeavors.org/free/100monk-all.htmThe U.S. has come to a fork in the road. One road leads to war,pollution & oppression. The other road leads to peace,sustainability & freedom. Which road we choose now will decide what kind of a future we will have, or if we will have a future at all. Thank God for the cannabis plant! It is opening the eyes of the world!amen. ego destruction or ego transcendence, that is the question. May we choose wisely.Emancipate ourselves from mental slavery. None but ourselves can free our minds. Have no fear for atomic energy 'cause none of them can stop the time. How long shall they kill our prophets while we stand aside and look? Some say its just a part of it we've got to fulfill the book. Won't you help to sing these songs of freedom? Won't you help to sing redemption songs?
 
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Comment #8 posted by Truth on February 18, 2003 at 18:40:04 PT
I second this.
"Thank God for the cannabis plant! It is opening the eyes of the world!"
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Comment #7 posted by mayan on February 18, 2003 at 18:30:39 PT
Fork in the Road...
Donahue is about over & he is saving the last word for Neil Boortz so I shut it off. It was a good show and further exposed the hypocrisy of the federal government, just like the cannabis plant and it's users are doing. The cannabis issue(medicinal & recreational)in the U.S. has enlightened the population of the greed,the lack of compassion and the lack of common sense associated with the policies of the federal government. We have achieved critical mass and the mainstream media can no longer ignore the cannabis law reform movement or the peace movement. If they do choose to ignore them, their credibility will furthur decline to the point of irrelevance. We are witnessing history but the corrupted powers that be will not go down without a fight. They will try to take us all down with them rather than admit that their leadership has failed miserably. The U.S. has come to a fork in the road. One road leads to war,pollution & oppression. The other road leads to peace,sustainability & freedom. Which road we choose now will decide what kind of a future we will have, or if we will have a future at all. Thank God for the cannabis plant! It is opening the eyes of the world!MARCH 5 - National Moratorium to Stop the War on Iraq:
http://www.notinourname.net/call_for_the_moratorium.htmlMohamed Atta and Rudi Dekkers Seen Together in Venice in Weeks Before Sept. 11 Attack:
http://www.madcowprod.com/index.htmlKaminski's Best 9/11 Sites - 4th Edition:
http://www.scoop.co.nz/mason/stories/HL0302/S00024.htm9/11 Prior Knowledge/Government Involvement Archive: http://www.propagandamatrix.com/archiveprior_knowledge9/11 Truth Alliance: http://unansweredquestions.org/alliance/index.html 
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Comment #6 posted by afterburner on February 18, 2003 at 17:51:11 PT:
Prop. 215 is in need of a citizens' Referendum.
Compassionate Use Act of 1996 alias Prop. 215 is not a perfect law. The Initiative was successful in establising the principle and practice of medical care and need. Prop. 215 is in need of a citizens' Referendum evaluating the effectiveness of the law in meeting it's goals; and recommending to the voters of the State of California a complete solution, addressing both supply and demand of medical cannabis treatment. Many cities are already on-board. State politics can support the local communities on this issue. This issue may become nationally and/or internationally prominent. ;)before deciding whether the suspects are more likely patients or recreational users. What about both? Many families that "live in marijuana consciousness" contain both patients and spiritual users. Is it Compassionate to deny access to medical patients? Is it Compassionate to deny access to spiritual users? ego destruction or ego transcendence, that is the question. fear-based or love-based? States Fight Federal Schedule 1 & Countries, UNhttp://www.cannabisnews.com/news/thread15480.shtml#3Deep Spirit & Great Heart "What is it about marijuana that, on the one hand, serves up so much fear and anger among its denouncers, the proponents of reefer madness, and on the other hand, so much passion, commitment among its users?"
Louis Silverstein,Ph.D. Dept. of Liberal Education, Columbia College Chicago, talks about his new book:Deep Spirit & Great Heart: Living In Marijuana Consciousness http://www.pot-tv.net/archive/shows/pottvshowse-1771.htmlego destruction or ego transcendence, that is the question. 
 
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Comment #5 posted by FoM on February 18, 2003 at 17:33:08 PT
Thanks mayan
I turned on Donahue!
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Comment #4 posted by mayan on February 18, 2003 at 17:00:50 PT
Off Topic...
For those who may be interested, Donahue is doing a show on the massive anti-war protests staged around the world last weekend! It starts at 8:00 Eastern on MSNBC. Hurry!
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Comment #3 posted by p4me on February 18, 2003 at 12:00:19 PT
This is for the wall, but it is not BS
"To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine or any other illness for which marijuana provides relief.' A BS'er BS's in the hope that some of the crap sticks to the wall. I know all the words we throw at the prohibitions' fine wall on their Fortress of Insanity have a low percentage of sticking. I throw words at it not so much in the belief it will stick, as it will stink.On the intellectual side I want to use some words that have been absent for several years according to the search engine. From what I can tell the cannabanoids in the cannabis plant are produced to protect it from fungi, bacteria, sunlight UV, and insects for starters and even though Jack Herer speaks of 400 cannabinoids, the Canadian Senate Report and two other sources like to use the number 60.THC, delta 9-tetrahydrocannabinol can properly be called dronabinol. When this breaks down in the liver a delta 11-THC is produced that is more psychoactive than delta-9. And I have read there is a delta 1- THC.In addition to those three there is CBC (cannabichromene), CBD (cannabidiol), CBD (cannabidiol), CBG (cannabigerol), and CBN (cannabinol)- cannabinol being the web name of Nol Van Shaik that said the reference for the warning label on future cannabis pills should read, "Don't smoke these pills."Here are two paragraphs copied from http://www.druglibrary.org/olsen/hemp/iha/jiha5113.html It should be noted that the compounds that I displayed initially, the four compounds, normally are not present as just phenolic compounds in the plant. They have a carboxylic acid moiety attached. This is usually ortho to the phenolic group on the C ring, the right-hand-side ring. What happens, though, is it is easily decarboxylated with the application of heat. Anything over, say, 110 or 120 degrees Celsius will very rapidly cause that carboxylic group to disappear as water and CO 2 , although this also happens slowly at room temperature.The carboxylic acid species are not orally active in a significant sense. You have to heat them up. If you were going to take oral medical marijuana, you would have to cook it in order to decarboxylate these compounds, although a certain percentage is naturally decarboxylated by the fact of the plant staying outside in the sun all day. However, the percentages of that happening are actually fairly low. However, when you smoke the materials, the in situ heating of the pipe or the joint, or whatever it is, causes that decarboxylation to occur. This renders the materials not only more absorbable, but it helps to make them more volatile because the carboxylic acid groups of the native compounds have more hydrogen bonding.So out of the 60 I can only find reference to these 8. Of course there is the term, anandamide that has something to do with all the cannabinoids that occur naturally in the body.I just want ot point out a 12 page PDF file that is Chapter 3 in the Oregon studies that were done for their MMJ program- http://www.or-coast.net/contigo/PDF%201%20Files/chpt_3.pdf On the second page it presents a list of maybe a hundred diseases helped by cannabis in 11 categories and presented by a Dr. Tod Mikuriya. On page 3 of the PDF file under the heading, “Cannabis makes people feel better,” the first sentences read, One underlying denominator, which underscores Cannabis’ vast utility, is its antianxiety effect. Most people who suffer from disease suffer also from the accumulation from the experience of suffering. This ongoing and emotional weight contributes to hopelessness and depression and, in turn, increases the severity of the disease process.”Our RC commentary yesterday again used the words cannabis prohibition , which I now match, when he talked about the costs prohibition itself puts on the sick and dying, with sick and dying being another term lifted from RC- 
http://www.marijuananews.com/news.php3?sid=626 Since I am lifting from him anyway, here are three paragraphs from RC’s commentary yesterday. If science is “any system of knowledge that is concerned with the physical world and its phenomena” then it must take into consideration the fact that the legal harassment of patients is very much a part of the “physical world and its phenomena.”If medicine is concerned with the well being of the patients, then it is bad medicine and bad science to ignore the problems caused by prohibition. Where are the studies on the side-effects of being arrested? Where are the studies of the effects of fear on patients? There are none, of course. But it is bad science to ignore these facts, which result from “modern medicine” as interpreted by Health Canada and the official medical establishment. It should not come as a surprise that they are reluctant to study the adverse consequences of their own policies. Who watches the watchman?On page 1 of the Oregon PDF file it says The lack of investigation is largely the result of U.S. governmental policy that subtly controls what, if any, research is carried out. … In this climate the risks to patients and family members attempting to secure Cannabis for medical use include arrest, prosecution, and conviction by a legal system so blinded by law-and-order hyperbole that it will not see the destruction it causes to the lives of sick peopleSo with all of that and the preventative benefits of cannabis it seems all cannabis use is medicinal whether you like it or not, which makes it so ubiquitous as not to need a recommendation.
Free Cannabis For Everyone.
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Comment #2 posted by FoM on February 18, 2003 at 08:47:04 PT
Dr. Russo
I wish you the best of luck for your state. I hope we get a medical marijuana law in Ohio too. Our laws are better then most states but a medical marijuana law woud be wonderful and very helpful to many people.
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Comment #1 posted by Ethan Russo MD on February 18, 2003 at 08:41:33 PT:
Not So Difficult
There is very little about the Prop 215 language that is difficult to understand. The problem comes about when over-zealous law enforcement and prosecutors challenge something that is fairly straight forward.That aside, in the Montana Clinical Cannabis Act we are attempting to make clear: qualifying conditions, patient identification, qualifying amounts for cultivation, but with affirmative defenses available. Please see:http://data.opi.state.mt.us/bills/2003/billhtml/HB0506.htmHearings in the legislature are on Friday.
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