cannabisnews.com: Cannabis Question Has Its Day in Court Cannabis Question Has Its Day in Court Posted by FoM on April 01, 2001 at 16:02:15 PT By Gerald F. Uelmen Source: San Jose Mercury News Arguing a case before the U.S. Supreme Court is viewed by many as a pinnacle in a lawyer's career. I vividly recall the reverential awe I felt as a law student in 1964, watching a case argued and hoping some day I would get a turn. It finally came when Chief Justice Rehnquist called the case of U.S. v. Oakland Cannabis Buyers' Cooperative. As a law professor, I was able to combine the preparation of this case with an intense educational experience for 12 law students at Santa Clara University. The students helped research and write the brief. When the big day came, my students flew back to Washington and had front row seats to watch the action.As I sat down to re-read the cases we were relying upon. I came across several I first read as a beginning law student. Among them was The Queen v. Dudley, a 19th-century British case used to illustrate the ``necessity'' defense in criminal law casebooks. It involved three sailors stranded in a lifeboat who survived by killing and eating a companion. The ``necessity'' defense is what our case was all about, but my current worry was that the justices would make a meal of me.The court was reviewing a decision of the 9th Circuit Court of Appeals. It ruled that an injunction closing down the Oakland club could be modified to allow distribution to a small group of patients who could demonstrate that they had serious medical conditions that could only be relieved by cannabis. Thus, there was no reasonable alternative available to them except to violate the controlled substances act.After granting a hearing, the Supreme Court granted the government's request for a stay of the modification to the injunction by a 7-1 vote, so we knew going in we were facing an uphill battle.There was one consolation, though. Even though I had been taught one needs to count to five to win in the Supreme Court, our case would only require us to convince four. Justice Stephen Breyer recused himself because his brother was the judge who issued the injunction. If the court is evenly divided, the lower court decision is upheld.The government argued that the Controlled Substances Act allowed no exceptions whatsoever; since cannabis was placed on Schedule I of the act, Congress had concluded there was no medical use and it could not be prescribed. Our response was that ``necessity'' should allow use without a prescription for patients who have no other alternative.I thought our strongest argument was that the government itself had permitted exceptions by setting up a ``Compassionate Investigative New Drug'' program to supply cannabis to seriously ill patients on an individual basis. In the early '80s, they were supplying 79 patients with cannabis cigarettes on a daily basis. Testimony before Congress clearly demonstrated that this was, in fact, a ``medical necessity'' program. In 1992, however, the program was shut down. No new applications have been accepted since then, although the government continues to supply eight patients who still survive. The decision to close the program was a cynical response to a flood of new applications coming from AIDS patients.In our brief, we traced the history of the Compassionate IND program, and asked, ``if the government can respond to medical necessity, why should the Controlled Substances Act be construed to prevent us from doing the same?''Four of the patients still being served by the government program signed a ``friend of the court'' brief.In its reply, the government responded in an arrogant fashion. In effect, it said, ``we can do it because we're the federal government; you can't, because you're a private party.''I decided that if I did nothing else in my oral argument, I wanted to respond to that display of government arrogance. An oral argument before the Supreme Court, however, lets the justices set the agenda. One must respond to the questions raised by the justices, and you are strictly limited to a half hour.At Wednesday's argument, I was peppered with questions. When the white light flashed on, signaling that I had five minutes left, I felt a cold grip of panic. I had not yet said a word about the ``Compassionate IND'' program. A brief lull in the questions gave me the opportunity I needed. I raised my voice, and launched into a passionate analysis of why the program was itself a government admission that medical necessity can be an exception. The defense requires that the defendant have no reasonable alternative. As long as the government program existed, it provided a reasonable alternative. When the government shut off the safety valve, patients were left with no reasonable alternative, hence had a valid necessity defense. Thus, as private parties we could now do what the government was refusing to do: respond to the medical needs of patients who faced life-threatening illness, and had no other alternative for relief.It was a strong ending. Now we wait for the justices to sort it all out.After the argument, one of the patients in the ``Compassionate IND'' program introduced himself. His name is Irvin Henry Rosenfeld, and he was diagnosed at 10 with a disease causing the continuous growth of bone tumors. He was treated with opioids, muscle relaxants and anti-inflammatory medications, which helped little and produced debilitating side effects. His physicians recommended cannabis. He was admitted to the program in 1982, and for 19 years the government has provided him with 12 marijuana cigarettes each day. He is a successful stockbroker handling multi-million-dollar accounts.I thanked him for his courage in signing on to the brief, so other patients could receive the benefit he has gained by getting access to the medication he needed. It was a moving reminder of what the case was all about.Gerald F. Uelmen is a law professor at Santa Clara University.Source: San Jose Mercury News (CA)Author: Gerald F. UelmenPublished: April 1, 2001Copyright: 2001 San Jose Mercury NewsContact: letters sjmercury.comWebsite: http://www.sjmercury.com/Related Articles & Web Site:Oakland Cannabis Buyers' Cooperativehttp://www.rxcbc.org/Marijuana as Medicine http://cannabisnews.com/news/thread9231.shtmlCompassion Goes Up in Smoke http://cannabisnews.com/news/thread9226.shtmlCannabisNews Medical Marijuana Archiveshttp://cannabisnews.com/news/list/medical.shtml Home Comment Email Register Recent Comments Help Comment #9 posted by kaptinemo on April 02, 2001 at 17:09:17 PT: Hot damn, he's back! It's really good to see you again, FF. Some of us 'regulars' were worried that you might have had a run-in with one of Officer Boot's more rabid siblings and come to a bad end. I am damn happy to learn otherwise. [ Post Comment ] Comment #8 posted by Dan B on April 02, 2001 at 01:33:19 PT: Hi, Freedom Fighter! Glad to see you are back with us. I was among the many who missed you and was wondering where you went. I'm glad it was just an Internet provider problem.Glad to know you are doing well.Take care.Dan B [ Post Comment ] Comment #7 posted by FoM on April 01, 2001 at 23:33:06 PT Glad you're back Hi freedom fighter, I'm glad you're back. That is a problem when an online community has one of the regular people not show up for a while. I think that it would be nice if people would ask a friend to come to a web site for them, if it is at all possible, and just say all is well. We had lost contact with a few people that way when I went to MSNBC News chat and we all were worried and never found them. It's just an idea but in the future as big as the Internet is, that problem will arise more and more frequently. If you aren't up to date on the news I'd check out the Medical Marijuana Archives first. http://cannabisnews.com/news/list/medical.shtmlHere's the link and it should help you see more information on the OCBC Case. The news is slow so I'll be finding news in the morning and calling it a day but it sure is good to know you are ok. FreedomToExhale [ Post Comment ] Comment #6 posted by freedom fighter on April 01, 2001 at 22:42:36 PT Glad to be back! Had major downtime with my internet provider! I do miss being around here and know that many of you would wonder whats up with me! I am just doing all right. Taking one day at a time is my motto! Ahh, it sure do feel funny being online.. Just got back online today. Weird feeling. Sort of like being on AOL ,,, :) I can tell you this one thing tho, if all the phonelines suddenly should die, it is like being in dark and not know what is going on around the World!! Would have gone real batty if it was not for a project I am working on now. I am building 40 more houses down in Denver Co. Oh boy, I have forgotten what is like to rant and scream on the Net!!!!! yahhhhhhhhhhh!I MISS EVERYONE OF YOU GUYS/GALS!!Yours always in freedomff [ Post Comment ] Comment #5 posted by Toker00 on April 01, 2001 at 22:14:38 PT So I guess we keep our fingers crossed till June.. Hey, Freedom Fighter. Que' Pasa? You are obviously alive. I just hope you are well, also.Peace. Realize, then Legalize. [ Post Comment ] Comment #4 posted by FoM on April 01, 2001 at 20:54:57 PT Yippie! Yippie Yippie Your Back! Not to take away from the serious comments but I have been worried about you freedom fighter. I hope you are ok. Good to see you. You were missed. [ Post Comment ] Comment #3 posted by ekim on April 01, 2001 at 20:45:54 PT: Did Dubyas Dad stop the IND program In 1992, however, the program was shut down. No new applications have been accepted since then, although the government continues to supply eight patients who still survive. The decision to close the program was a cynical response to a flood of new applications coming from AIDS patients. [ Post Comment ] Comment #2 posted by freedom fighter on April 01, 2001 at 20:36:52 PT testing to see if I am alive and well..Howdy folks! [ Post Comment ] Comment #1 posted by ekim on April 01, 2001 at 18:03:15 PT: 19 years and Gov't says it has no good Med.studies His name is Irvin Henry Rosenfeld, and he was diagnosed at 10 with a disease causing the continuous growth of bone tumorsHis physicians recommended cannabis. He was admitted to the program in 1982, and for 19 years the government has provided him with 12 marijuana cigarettes each day. He is a successful stockbroker handling multi-million-dollar accounts. [ Post Comment ] Post Comment Name: Optional Password: E-Mail: Subject: Comment: [Please refrain from using profanity in your message] Link URL: Link Title: