cannabisnews.com: Medicinal Cannabis Patient Had His Case Heard!





Medicinal Cannabis Patient Had His Case Heard!
Posted by FoM on June 30, 1999 at 05:59:31 PT
Source: CRRH
Dave Herrick, the medicinal cannabis patient and Orange County Patient-Doctor-Nurse Support Group Volunteer who was sentenced to four years in prison in 1998, had his case heard in front of the Orange County Fourth District Appeals Court on Monday, June 21.
Dave was charged for giving away medicinal cannabis to two patients and sentenced to four years after a jury was not allowed to consider Proposition 215 or a medical necessity defense. Dave's attorney, Stephen Gilbert, argued for a medical necessity defense and prosecutorial misconduct in front of Appeals Court Justices Thomas F. Crosby, David G. Sills, and William W. Bedsworth. Gilbert said the most significant societal problem is the construction of 215 as if it doesn't exist. 215 is meaningless if there is no way for patients to obtain their cannabis. The jurors in Dave's case came out during deliberations and asked the judge why they couldn't consider that during deliberations and the judge told them 215 doesn't cover sales. In the two charges Dave was found guilty of, both witnesses testified the cannabis was free. They said that if they made any monetary transactions at the time they received the cannabis, it was a voluntary donation to the support group, not for the cannabis. They also testified that they couldn't remember if it was Dave who handed them their medicine. Judge Thomas Crosby made a comparison of medicinal cannabis to pornography. He said that in some jurisdictions it is legal to posses pornography, but illegal to traffic it. He said 215 and the arrest of people for "sales" is similar. Judge Crosby also said he felt the most troubling aspect of Dave Herrick's sentence is the excessive length and he felt that could be cruel and unusual punishment. Gilbert said the only way the court could deny a medical necessity defense is if the court decides a person isn't allowed to help another person who is suffering. The patients who Dave was convicted of giving cannabis to couldn't be treated with any other medication and the jury was denied the right to take that in to consideration. Judge Crosby asked how it could be a medical necessity when Dave wasn't required to help others. He also asked if someone who shot up someone in pain with heroin because they were addicted to Demerol but out of it would be allowed a medical necessity defense. The judge also implied that if the patients had been family members of Dave's, he might be allowed a medical necessity defense. Gilbert said if he had cancer and no family members could help him and Dave offered to help, should Dave be punished and not considered a caregiver because he's not a blood relative, but at the same time still be able to help his sister without getting in trouble. Judge William Bedsworth said patients could grow their own medicine themselves, completely disregarding the fact that many patients don't have space to grow or are too ill to cultivate plants themselves. He also said that we can't have citizens breaking laws because it's a medical necessity. He then asked if someone should be allowed a medical necessity defense for stealing a TV because he can't sleep at night without a TV on. Gilbert said Dave is entitled to a jury trial for them to decide if a medical necessity defense should be heard. Gilbert then went on to describe the prosecutorial misconduct of Carl Armbrust, Deputy DA who brought charges against Dave Herrick. The judges agreed that what Armbrust did was a foul, but asked several times what the harm was in doing that. Gilbert said Dave Herrick may not have been convicted had the jury seen the donation slips. Several times during Dave's trial, his defense attorney asked for copies of donation slips in Armbrust's possession. Each time, Armbrust argued that they are irrelevant and never handed them over. The donation slips showed donations made to the Orange County Patient-Doctor-Nurse Support Group. During closing arguments, after Herrick's attorney mentioned Armbrust not handing over the slips, Armbrust told the jury that Dave's attorney could have had the donation slips at any time, but never asked. The donation slips would have shown that donations were made for the operations of the support group and were not a purchase of cannabis. The donation slips also could have shown that on the dates he was accused of sales, no monetary transactions took place for the purchase of cannabis. The appeals court judges seemed reluctant to make a ruling on a case involving medicinal cannabis. They asked the attorney for the state about Lockyer's task force on medicinal cannabis and if they had come up with a solution for Dave's situation. The attorney replied that 215 allows patients to legally posses, use, and grow, but that it doesn't allow sales. She said she wasn't familiar with anything the medicinal cannabis task force is doing because she is not part of the task force. The judges will decide if Dave Herrick's case should be reheard or if it should stand with the lower court's decision. 
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