Pubdate: Thu, 26 Sep 2002
Source: San Diego Union Tribune (CA)
Copyright: 2002 Union-Tribune Publishing Co.
Authors: Marisa Taylor,  Jeff McDonald, San Diego Union-Tribune Staff Writers
Bookmark: (Ashcroft, John)
Bookmark: (Hutchinson, Asa)
Bookmark: (Cannabis - California)
Bookmark: (Drug Raids)


State Law Not A Shield To U.S. Prosecution

Medical-marijuana activist Steve McWilliams believes the law is on his side 
when he dispenses pot to the sick. After all, California voters in 1996 
approved Proposition 215, which allows patients to grow and use marijuana 
for medicinal purposes.

He may not be as protected as he thinks.

The federal law that prohibits the cultivation of marijuana supersedes 
California law - and that allows the U.S. attorney in San Diego to seek 
criminal charges against McWilliams.

San Diego's top federal prosecutor, Carol Lam, hasn't decided whether to 
file charges in the case.

If she decides to, legal experts say, mounting a defense in federal court 
would be tough. The best hope for McWilliams and other medical-marijuana 
patients is that individual U.S. attorneys will decide not to charge them 
in the first place.

McWilliams, whose garden was uprooted by federal agents Tuesday, is the 
latest medical-marijuana patient to be weighing defense strategies. In the 
past year, the federal government has raided cannabis clubs in Los Angeles 
and Oakland; at least seven people have been charged.

"This is not accident," said Stephen G. Nelson, who was a federal 
prosecutor in San Diego for 25 years. "Somebody in Washington, presumably 
the attorney general, made the decision that we are not going to allow the 
people of California to defy the law."

The medical-marijuana community is preparing for a fight in San Diego that 
could have national implications.

The National Organization for the Reform of Marijuana Laws plans to offer 
legal help to McWilliams, said R. Keith Stroup, a public-interest attorney 
who founded the Washington D.C.-based nonprofit group in 1970. He said 
three dozen California attorneys are ready to assist in the case.

"We may not be able to protect him from the powers of the federal 
government, but we can damn well make sure he has a good lawyer," Stroup 
said. "And we've done that."

McWilliams, 47, has spent years advocating the healing powers of marijuana. 
He smokes the herb to relieve pain he suffers from a 1970s motorcycle accident.

The unemployed activist has brought marijuana plants into the San Diego 
City Council chambers to accentuate his point. Yesterday, he smoked the 
drug outside City Hall, where 40 or so people gathered to protest the DEA 
raid on his home. San Diego police stood watch but did nothing.

McWilliams' belief that his personal garden is protected by Proposition 215 
seemed to be bolstered by a state Supreme Court ruling last July that 
granted medical-marijuana patients limited immunity from prosecution.

Many state and local officials support his view.

Earlier this month, California Attorney General Bill Lockyer complained 
about the recent raids in a letter to U.S. Attorney General John Ashcroft 
and DEA Administrator Asa Hutchinson.

"The decision to continue federal raids on medicinal-marijuana providers 
when there is no evidence that the operation is actually engaged in illicit 
commercial distribution is wasteful, unwise and surprisingly insensitive," 
Lockyer wrote.

San Diego attorney Patrick Dudley, who has been plotting McWilliams' 
defense strategy, said the state court ruling doesn't protect Californians 
from being prosecuted in federal court. An earlier U.S. Supreme Court 
ruling said medical need cannot be used in a defense against marijuana 
charges in federal court, no matter what state law has approved.

"Because of the way federal law is right now, it's a pretty straightforward 
case for them, unfortunately," Dudley said.

'Jury nullification' One possible defense strategy would be to persuade a 
jury to acquit medical-marijuana activists even if the federal government's 
evidence against them is overwhelming.

This tactic, known as "jury nullification," has been used by draft dodgers 
and tax protesters to argue they should be acquitted because the laws under 
which they were prosecuted are misguided.

San Diego defense attorney Michael Pancer said that tactic usually fails, 
because judges carefully instruct jurors to follow the law, not their hearts.

"The jurors cry and say they don't want to convict - but then they do," 
Pancer said.

Peter Nunez, a former U.S. attorney under President Reagan, said he 
prosecuted several people in federal court in the late 1970s for smuggling 
an extract of apricot pits known as Laetrile. Most of those defendants 
tried to argue for jury nullification because some cancer patients believed 
the drug helped cure the disease.

Each time, they were convicted, Nunez said.

Prosecutors have another edge in the McWilliams case, because they can 
argue he continued to violate the law after they warned him that growing 
and distributing marijuana was illegal.

In an unusual move, the U.S. attorney notified McWilliams in a 
hand-delivered letter last Thursday that he would be prosecuted if he 
continued his activities.

McWilliams said he wouldn't stop, because it was a matter of principle. 
Even the knowledge that a conviction could put him in prison hasn't 
deterred him. If tried and convicted of manufacturing marijuana, he could 
face up to 16 months in prison.

McWilliams said he hopes the U.S. attorney's office will decide not to 
prosecute him.

The federal government appears to have backed down in one high-profile case 
this month. In Santa Cruz County, dozens of federal agents had seized 100 
plants and arrested several members of a medical-marijuana cooperative. A 
few days later, federal authorities said no charges would be filed.

"It would not be a nice, easy, clean prosecution," McWilliams said. "We've 
been assured that if we stayed within these guidelines, we'll be protected."

Stephen Nelson, the former San Diego federal prosecutor who once headed the 
drug division, said some jurors might view a guilty verdict as unjust.

In one of the few medical-marijuana cases prosecuted in state court in San 
Diego, jurors in 1993 acquitted a La Mesa man who said he needed the drug 
to ease the symptoms of AIDS. The verdict was reached before Proposition 
215 allowed medical use.

"Jurors aren't stupid," said Nelson, who believes federal officials should 
not press charges. "There's always a chance they would hang or acquit."

Civil complaint McWilliams and his partner, Barbara MacKenzie, have been 
lining up support from activists and lawyers throughout the nation.

Gerald Uelmen, a law professor at Santa Clara University who is defending 
the Santa Cruz marijuana advocates, is putting together a civil complaint 
seeking an injunction to prevent the DEA from conducting further raids 
until the courts resolve the conflict between state and federal laws.

"They're just engaged in hit-and-run operations, trying to close down as 
many (gardens) as they can," Uelmen said of the drug agents. "They just go 
in and grab the plants, the records and computers and then not engage in 
any criminal prosecution."

McWilliams has received a vote of confidence from some members of a San 
Diego city task force that is drawing up guidelines under which chronically 
ill patients may use marijuana. McWilliams was a member of the task force 
until last month, when he quit because he felt the committee was moving too 

"This is a medical issue," San Diego City Councilman George Stevens said 
yesterday at a committee meeting attended by dozens of McWilliams 
supporters. "People are sick. The marijuana is needed to address their 

The task force recommendations are scheduled to go before a City Council 
committee Oct. 16. San Diego police and drug-abuse prevention groups 
disagree on some of the suggestions.

City officials estimate that between 1,500 and 3,000 people will apply for 
identification as registered medical-marijuana patients. The city expects 
to begin issuing the ID cards early next year.

Meanwhile, McWilliams is bracing for a knock at his door he hopes will 
never come. He worries whenever helicopters pass over his rented house in 
Normal Heights.

Before their house was raided this week, he and MacKenzie harvested the 
useable marijuana from their garden and divided it among five clients.

"If we waited and they came, then we would lose everything," McWilliams 
said. "So we just tried to help as many people as we could."
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MAP posted-by: Jay Bergstrom