Pubdate: Fri, 14 Apr 2000 Source: Orange County Register (CA) Copyright: 2000 The Orange County Register Contact: P.O. Box 11626, Santa Ana, CA 92711 Fax: (714) 565-3657 Website: http://www.ocregister.com/ Author: Teri Sforza, The Orange County Register CHAVEZ TO MAKE BID FOR FREEDOM PROP.215: The medical marijuana advocate hopes to get out of prison while his conviction is appealed. Marvin Chavez didn't have to go to prison for his zealous dedication to medical marijuana. A judge offered him five years of probation if he would plead guilty to selling pot. "My answer was no," Chavez wrote in a recent letter from state prison, where he has been for more than a year. "To have taken the deal, I would have sold my integrity." Chavez, founder of Orange County's Patient, Doctor, Nurse Support Group Cannabis Co-op, felt sure that a jury would see that he was operating in good faith under California's Proposition 215 when he gave pot to people who said they were sick. So he took his chances on a trial. But the judge prohibited him from mounting a defense based on the murky new medical marijuana law. He was found guilty of selling and transporting pot, and in January 1999, sentenced to six years in prison. Today - after some 15 months behind bars - Chavez will be back before the judge, asking to be freed pending appeal. "We're just hoping he can get out and stay out," said Linda Chavez, his ex-wife. The District Attorney's Office plans to oppose the motion. The motion comes a long time after conviction, and his lawyers disagree about why. "The trial lawyer ought to have done the bail motion a long time ago," said Dylan Schaffer, who is handling Chavez's appeal. Not so, says J. David Nick. "One of the requirements is that you have to show that you have viable issues on appeal, or you're not entitled to bail," Nick said. Friday's motion, filed by Nick, gives Chavez's supporters reason to hope. The two men who worked alongside Chavez, and were arrested on similar charges, are free: The district attorney dropped charges against co-op co-founder Jack Shachter, who is in Florida dying of cancer; and an appeals court over-turned the conviction of co-op volunteer David Lee Herrick, on the grounds of prosecutorial misconduct. The misconduct was this: Prosecutor Carl Armbrust erred in his closing arguments by saying the defense failed to use certain co-op records - records that the judge had ruled inadmissible. That unfairly undermined the defense's credibility, the appeals court said. The same prosecutor handled Chavez's case, and committed similar misconduct there, the appeal charges. While Armbrust persuaded the judge to forbid Chavez from mounting a defense based on Prop. 215 - and objected every time Chavez's defense attorneys tried to mention the medical marijuana law or probe Chavez's intentions regarding the co-op - Armbrust still used his interpretation of Prop. 215 in his closing arguments. That, Chavez's attorneys maintain, was unfair, and constitutes misconduct. The appeal hits on numerous other legal issues, but the chief complaint is that, by forbidding Chavez from mounting a defense based on Prop. 215, he was denied a fair trial. "People like Marvin were operating in a a very murky legal atmosphere, just trying to do the right thing, hoping that, if they were challenged, that jurors would believe their cause was just, even if they weren't 100 percent clear on the law," said Dave Fratello, spokesman for Americans for Medical Rights, a key backer of Prop. 215. "In Marvin's case, the jurors didn't even get to hear that." Chavez's odyssey began in 1996, when he crusaded for the passage of Prop. 215. After its victory, he created Orange County's first "cannabis club," got a business license, spoke at city council meetings and worked to familiarize people with the new law - at least as he understood it. His understanding was wring, as far as the District Attorney's Office was concerned. When officers posing as patients came to Chavez for pot, complaining of pain, Chavez insisted on seeing a doctor's not, then gave them "medicine" in exchange for "donations." That, prosecutor Armbrust successfully argued, is a marijuana sale. But while Chavez is seen as a martyr by many activists, his background makes him a less-than-perfect poster boy. In the 1970s, he was twice arrested on suspicion of carrying a loaded firearm in public. In the 1980s he was arrested on suspicion of cocaine trafficking, though not convicted. But Chavez remains passionate about his cause. "The nonprofit organization I formed, its sole aim was to help the sick and dying to obtain the medical cannabis that they needed as well as to improve their quality of life," he wrote recently. "I do not have any regret. I am still committed to Prop. 215. I will not allow these groups of individuals to imprison my mind and spirit." - --- MAP posted-by: Jo-D