Favorable US Court Rulings for Medical Marijuana Defendants
(California NORML Newsletter, Dec 2003)
Medical marijuana defendants are beginning to win some encouraging decisions in the U.S. courts, as Prop. 215 supporters await the outcome of two crucial cases pending in the Ninth Circuit Court of Appeals.
In a rebuke to the federal government, Los Angeles U.S. District Judge A. Howard Matz bent over backwards to hand out the most lenient possible sentences to three defendants accused of distributing marijuana for the Los Angeles Cannabis Resource Center.
LACRC Director Scott Imler and his partners Jeff Yablan and Jeff Farrington were sentenced to a year’s probation plus community service after pleading guilty to charges that carried a potential 30-month prison sentence.
Matz praised the defendants, calling Imler a "mensch" for putting himself on the line. He justified the sentence under a "lesser harm doctrine," saying the defendants "committed a crime to avoid the harm of the greater suffering of patients."
Scott Imler, who is battling lung cancer, thanked the judge for his leniency. "Though it was hard to keep faith in the system throughout this process, I know mine was restored today," he said.
Matz called the entire prosecution "badly misguided," saying he was "baffled" and "disturbed" that the DEA and U.S. attorneys chose to pursue it. The LACRC raid was ordered by Attorney General John Ashcroft, according to knowledgeable sources.
Matz is scheduled to sentence two other LACRC defendants, Lynn and Judy Osburn, on Feb. 2. Faced with a potential 10-year mandatory minimum on cultivation charges, the Osburns reached an unusually favorable plea agreement, pleading guilty to lesser charges while maintaining full rights to appeal. Federal prosecutors recommended that the Osburns remain free on bail pending appeal.
In a letter to supporters, Judy explained, "While we accept the fact that our actions in compliance with state law violated federal law, and therefore believe our pleas of "guilty" to be truthful, nonetheless on an emotional level the word "guilty" felt like a big lie."
The Osburns’ attorney, Bill Panzer, is appealing their prosecution on grounds of interstate commerce, due process, the Fifth Amendment, and the lack of rational basis for putting marijuana in Schedule I.
Many believe that the lenient sentences accorded to the LACRC defendants are due to the government’s stinging defeat in the Ed Rosenthal trial last June. In that case, the jurors recanted their verdict, and the judge ended up imposing a one-day sentence for offenses normally punishable by a mandatory minimum of five years. Since then, there has been a noticeable let-up in federal medical marijuana prosecutions, with only one new case - that of Gary and Anna Barrett in San Bernardino County - having been initiated in the past year.
In several recent instances, DEA agents have raided medical marijuana growers but not pressed federal charges. In Mendocino, a federal-state task force busted a large, 1,000-plant garden serving a patients’ group in San Francisco. Although federal charges are common in such cases, the grower was turned over to the state for prosecution.
In Los Angeles, DEA agents were called in by local police to raid the backyard garden of a well known patient advocate, Sister Somayah Kambui, who was acquitted in a high-profile Prop 215 jury trial last year. Somayah, who runs a sickle-cell patients’ group, has been the victim of repeated LAPD raids throughout the years despite her legal status under 215. This time, the LAPD called on the DEA to do their dirty work, thereby assuring that state courts could not order return of her medicine. Nonetheless, Somayah was spared criminal charges, reflecting an apparent reluctance by federal attorneys to take on controversial, new Prop. 215 cases.
U.S. attorneys may well be awaiting the outcome of two crucial constitutional cases currently before the Ninth Circuit Court of Appeals, which challenge the federal government’s authority to interfere in California’s medical marijuana law. The first, which was heard in September, involves the Oakland Cannabis Buyers’ Cooperative and Wo/Men’s Alliance for Medical Marijuana in Santa Cruz, two patients’ groups whose activities did not involve interstate commerce and were sanctioned by local authorities. The second case, which was heard three weeks later, involves two patients, Angel Raich and Diane Monson, who are asking for an injunction to protect their own personal use and cultivation under Prop. 215. Both cases involve similar issues, in particular, whether the federal government has the constitutional power to prohibit the possession and cultivation of medical marijuana within California as part of its power to regulate interstate commerce.
Medical marijuana attorneys are hopeful of a good decision. The judges on both appeals panels have liberal reputations. In addition, there has recently been a spate of encouraging court decisions limiting the government’s powers under interstate commerce. They include two Supreme Court decisions, Lopez and Morrison, plus two new Ninth Circuit decisions, McCoy and Stewart, which struck down federal laws against personal use home manufacture of child pornography and machine guns, respectively.
The Ninth Circuit is expected to announce its decisions in the two cases sometime this spring. "A ruling restricting the government’s powers under the Controlled Substances Act would be a major, unprecedented victory that could well spell the end of federal medical marijuana prohibition," says California NORML coordinator Dale Gieringer, "On the other hand, a loss could unleash a new wave of government oppression." In either case, the decision is certain to be appealed to the Supreme Court, leaving the outcome in suspense for at least another two years.
