Pubdate: Tue, 15 May 2001
Source: California Lawyer (CA)
Copyright: 2001, The Daily Journal Corporation
Author: John Roemer
Bookmark: (Kubby, Steve)
Bookmark: (Cannabis - California)


Prosecutors Feel The Sting Of Prop. 215. 

It was bad enough for prosecutors who opposed Prop. 215 to lose by more than
10 percentage points. But now, five years after its passage, the law that
legalizes the use of marijuana for medicinal purposes is being used as a
club to threaten the careers of DAs across the state.

The strategy has been most effective in Marin County. There District
Attorney Paula Kamena is facing a recall election on May 22 for allegedly
harassing legitimate marijuana users. Also, in Placer County signatures were
being collected to hold a recall election for DA Bradford Fenocchio, but
then the organizers of the effort agreed to a 30-day "cooling off" period
after Fenocchio agreed not to prosecute any more medicinal users. Meanwhile,
other DAs facing similar threats include El Dorado County's Gary T. Lacy,
Shasta County's McGregor Scott, Calavaras County's Peter H. Smith, and
Sonoma County's J. Michael Mullins.

What's going on here? The question leads very quickly to Steve Kubby, a pot
activist and former Libertarian Party gubernatorial candidate who, while
fending off marijuana cultivation charges, started the American Medical
Marijuana Association last year with the goal of pressuring law enforcement
officials to leave medical marijuana users alone. But his recall-the-DA
strategy has clearly taken this effort one giant step further. And along the
way, he's managed to form some unlikely alliances with fiscal conservatives
who worry about the cost to taxpayers of any civil lawsuits that might arise
from ill-advised drug raids. "We're trying to empower citizens to hold
public officials accountable," Kubby says. "Now I'm constantly getting
inquiries about how to start recalls elsewhere."

"It's a very disturbing development," acknowledges Lawrence Brown, the
executive director of the California District Attorneys Association. "We're
making a good faith effort to interpret a poorly written law, and
dissatisfaction with that shouldn't trigger recalls." One often-expressed
complaint about the law is that it fails to specify how much marijuana a
legitimate user can possess.

"These people want you to believe this is about medical marijuana," says
Marin County's Kamena, who's now fighting for her political life. "It is
not. This is about the rule of law and the entire legal process. "Oddly
enough, when the recall fight started in Marin it had nothing to do with
marijuana. Instead, the controversy was about a series of divorce cases that
allegedly betrayed the biases of four superior court judges and Kamena, who
successfully prosecuted criminal charges against one woman for attempting to
kidnap her daughter in an especially contentious custody case. The judges
were eventually spared. However, energized by allegations of overzealous
prosecutions in more than 30 medical marijuana cases-cases that were later
dropped-the cannabis advocates managed to get enough signatures to force a
recall vote on Kamena. 

"We're not looking for payback here," says Kubby, who's often accused of
playing hardball. "We're not vindictive. If we could work in good faith with
law enforcement to stop the raids and arrests on sick people, we'd be happy
to hold back." But at this point restraint doesn't appear likely on either

All of this puts the state's attorney general, Bill Lockyer, in an awkward
position. On the one hand, he supported Prop. 215, and more recently he
filed an amicus brief with the U.S. Supreme Court supporting the medical
necessity defense in prescription pot cases. Yet he also supports Kamena in
her recall battle in Marin. 

"The AG has been clear," insists his spokesperson, Nathan Barankin. "He
supports medical marijuana, but he thinks Prop. 215 was so poorly drafted
that it puts local law enforcement, including district attorneys, in an
impossible position." That, Barankin adds, is why Lockyer has pushed so
hard, since becoming attorney general, for legislation to clarify

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