Pubdate: Tue, 01 May 2001
Source: Redding Record Searchlight (CA)
Copyright: 2001 Redding Record Searchlight - E.W. Scripps
Author:  Thomas Elias
Note: Thomas Elias is a political columnist whose commentary appears in 
newspapers throughout California.
Bookmark: (Recall Initiatives (CA))


It may be the first time California public officials have ever been 
targeted for recall because they're ignoring the outcome of a ballot 
initiative. It's definitely the first time a group of prospective criminal 
defendants has threatened political revenge against the people who would 
prosecute them.

Those two unique realities give wide implications to the recall efforts now 
being mounted or threatened against half a dozen district attorneys who 
have pursued users of medical marijuana.

Medical pot advocates won public approval of their cause in a 1996 ballot 
initiative campaign, passing Proposition 215 by a 56-44 percent margin. But 
most prosecutors never recognized that measure as a defense in pot cases. 
Now the activists are using recalls and the threat of recalls in an attempt 
to muscle law enforcement into accepting legalization of "medipot."

The first vote comes May 22, when Marin County District Attorney Pamela 
Kamena must try to defend her office and her actions in a special election 
called after activists for the American Medical Marijuana Assn. gathered 
thousands of petition signatures.

The same medipot backers and users have also served "official warnings" on 
half a dozen other D.A.s, threating recalls if they don't cease prosecuting 
patients who smoke marijuana to ease the pain and nausea of some illnesses 
and the dealers who provide them with pot.

"We see recall actions as a means of convincing local prosecutors to comply 
with Proposition 215," said Steve Kubby, founder of the AMMA. "This isn't a 
vindictive thing on the part of patients. It's a matter of survival."

The initiative allowed use of medipot on the recommendation of a physician. 
It has produced confusion and controversy ever since, as U.S. attorneys and 
judges and some local sheriffs and prosecutors refused to recognize it as 
law. Plus, judges and federal prosecutors contend federal laws banning 
almost all marijuana use render the proposition meaningless.

Kubby, the 1998 Libertarian Party candidate for governor, and his wife were 
cleared this spring of most charges against them in a landmark medipot 
trial stemming from a 1999 raid on their home near Lake Tahoe which netted 
police more than 100 marijuana plants.

Kubby presented evidence that he has used marijuana since 1976 to combat a 
rare form of adrenal cancer and his physician testified that he needs the 
pot to survive. He was convicted only of one count of possession of a 
hallucinogenic mushroom, but has appealed that verdict, claiming the 
mushroom was a souvenir which had long since lost any potency. The jury 
hung 11-1 for acquittal on most other counts and they were dropped.

Now Kubby's group has warned Placer County D.A. Bradford Fenocchio, who 
supervised the Kubby prosecution, that he will be the object of the next 

The recall in leafy Marin County, just across the Golden Gate Bridge from 
San Francisco, comes despite what Kamena calls her "progressive view" about 
medipot. Her office guidelines exempt from pot possession prosecutions 
anyone with fewer than seven mature cannabis plants and less than half a 
pound of dried marijuana. She also does not prosecute anyone with AIDS or 
breast cancer.

"These people want you to believe this is about medical marijuana," Kamena 
told a news conference. "It is not. This process is about the rule of law 
and the entire legal process."

She called her opponents "small minded" litigants trying to make the courts 
"bend to their thuggish ends."

But Lynette Shaw, director of the AMMA's Marin County branch, argued that 
even when medipot patients are not prosecuted, authorities in the county 
frequently confiscate their supplies. "We're looking at 300 people who lost 
their pot," she said. "After they get arrested and lose their pot and go 
through all these hoops, only then are they let go."

Other district attorneys who have been warned by the medipot advocates 
include those in El Dorado, Sonoma and Shasta County District Attoreny 
McGregor Scott.

Opponents of the Marin County recall maintain the petition drive that 
qualified the issue for a vote was misleading. The petitions, they note, 
did not mention medipot, but attacked Kamena for prosecuting a woman 
convicted of falsifying a court document in a child custody case.

State Attorney General Bill Lockyer joins the anti-recall chorus. "Recalls 
of district attorneys," he says, "are an abuse of the system."

Meanwhile, most prosecutors say they will not allow themselves to be 
pressured by any recall efforts.

"We're not going to react to someone wanting to put some type of political 
pressure on us to make a decision on how we should apply the law," said 
Edward Berberian, assistant district attorney of Sonoma County.

That declaration focuses on the real issue here: Can people who may be 
prosecuted retaliate when district attorneys choose to ignore a standing 
law they don't happen to like? And if they succeed, will they be setting a 
dangerous precedent?
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