Pubdate: Mon, 2 Mar 2009
Source: CounterPunch (US Web)
Column: Pot Shots
Copyright: 2009 CounterPunch
Contact:  http://www.counterpunch.org/
Details: http://www.mapinc.org/media/3785
Author: Fred Gardner
Note: Fred Gardner edits O'Shaughnessy's, the journal of cannabis in 
clinical practice.

THE JUDGE WHO RULED MARIJUANA IS MEDICINE

Most drug-policy-reform advocates know the name of Judge Francis 
Young and many can quote a line from his 1988 recommendation that the 
DEA remove marijuana from Schedule One: "Marijuana is one of the 
safest therapeutically active substances known to man."

Few if any activists know the name of Judge James A. Washington. And 
whereas Judge Young's recommendation was rejected by the DEA, Judge 
Washington's decision in United States v. Robert Randall had an 
actual and significant impact.

Randall, who faced blindness from glaucoma in his late 20s, would be 
the first patient to get marijuana from the federal government under 
an "investigational new drug" protocol. Some 30 other people with 
serious illnesses followed Randall into the IND program, which was 
closed to new patients in 1991. Four surviving patients receive 
federal cannabis to this day.

US v Randall was tried by Judge Washington in Washington, DC, 
Superior Court, over the course of two days in July, 1976. The 
prosecutor was Assistant US Attorney Richard Stolker. Randall's 
attorney John Karr recalled in a recent interview, "Judge Washington 
had been dean of the Howard University Law School before his 
appointment to the bench and I knew him to be extremely intelligent 
and compassionate. A non-jury trial was fine with me."

Randall relied on a "medical necessity" argument, which Karr 
summarized as: "faced with a choice of certain blindness or using 
marijuana to save your sight, a reasonable person would use marijuana."

The key witness was Robert Hepler, MD, a UCLA opthalmologist who had 
monitored Randall's use of all the pharmaceutical drugs then used to 
treat glaucoma, and confirmed that only marijuana could stop the 
progression to blindness.

Here are the facts as recounted by Judge Washington in his decision:

"The government has established, and the defendant has not attempted 
to refute, that on or about August 21, 1975, police officers in the 
course of their normal duties noticed what they believed to be 
cannabis plants on the rear porch and in the front windows of 
defendant's residence... A warrant was issued and a search of the 
premises conducted on August 23, 1975. Several plants and a dried 
substance later identified as marijuana were seized and defendant's 
arrest followed.

"At trial, the government's evidence demonstrated that the substance 
seized at defendant's residence was marijuana, possession of which is 
prohibited by D.C. Code Section 33-402, thus establishing all the 
elements of the crime charged. Moreover, defendant admitted that he 
had grown the marijuana in question and that it was intended for his 
personal consumption. He further testified that he knew that 
possession and use of this narcotic are restricted by law.

"Defendant nonetheless sought to exonerate himself through the 
presentation of evidence tending to show that his possession of the 
marijuana was the result of medical necessity. Over government 
objection of irrelevancy, defendant testified that he had begun 
experiencing visual difficulties as an undergraduate in the late 
1960s. In 1972 a local opthalmologist, Dr. Benjamin Fine, diagnosed 
defendant's condition as glaucoma, a disease of the eye characterized 
by the excessive accumulation of fluid causing increased intraocular 
pressure (IOP), distorted vision and, ultimately, blindness.

"Dr. Fine treated defendant with an array of conventional drugs, 
which stabilized the intraocular pressure when first introduced but 
became increasingly ineffective as defendant's tolerance increased. 
By 1974, defendant's IOP could no longer be controlled by these 
medicines, and the disease had progressed to the point where 
defendant had suffered the complete loss of sight in his right eye 
and considerable impairment of vision in the left.

"Despite the ineffectiveness of traditional treatments, defendant 
during this period nonetheless achieved some relief through the 
inhalation of marijuana smoke. Fearing the legal consequences, 
defendant did not inform Dr. Fine of his discovery, but after his 
arrest defendant participated in an experimental program being 
conducted by opthalmologist Dr. Robert Hepler under the auspices of 
the United States Government.

"Dr. Hepler testified that his examination of the defendant revealed 
that treatment with conventional medications was ineffective, and 
also that surgery, while offering some hope of preserving the vision 
which remained to defendant, also carried significant risks of 
immediate blindness. The results of the experimental program 
indicated that the ingestion of marijuana smoke had a beneficial 
effect on defendant's condition, normalizing intraocular pressure and 
lessening visual distortions."

John Karr recalls: "Judge Washington was very careful. After the 
prosecutor had conducted his examination and I had conducted the 
cross-examination, he would conduct his own inquiries. It was 
apparent that he had read all the material we had put together on the 
history of marijuana as medicine. In his decision he referred to the 
1937 Congressional hearings that led to the Prohibition, and a number 
of recent studies and reports."

A Case of First Impression

"This is a case of first impression in this jurisdiction," wrote 
Judge Washington in his decision, "one which raises significant 
issues. Consequently, the Court recognizes its responsibility to set 
forth clearly and in some depth its understanding of the applicable law."

Citing case law, Washington concluded that "the common law recognizes 
the defense of necessity in criminal cases... where the actor is 
compelled by external circumstances to perform the illegal act." He 
listed three exceptions. The necessity defense cannot be used when 
"1) The duress or circumstance has been brought about by the actor 
himself; 2) The same objective could have been accomplished by a less 
offensive alternative which was available to the actor; or 3) The 
evil sought to be averted was less heinous than that performed to avoid it."

The first two exceptions clearly don't apply in US v. Randall, wrote 
Washington:

"While the exact cause of defendant's glaucoma is unknown, neither 
the government nor any of the expert witnesses has suggested that the 
defendant is in any way responsible for his condition. Similarly, no 
alternative course of action would have secured the desired result 
through a less illegal channel. Because of defendant's tolerance, 
treatment with other drugs has become ineffective, and surgery offers 
only a slim possibility of favorable results coupled with a 
significant risk of immediate blindness. Neither the origin of the 
compelling circumstances nor the existence of a more acceptable 
alternative prevents the successful assertion of the necessity defense.

"The question of whether the evil avoided by defendant's action is 
less than the evil inherent in his act is more difficult. It requires 
a balancing of the interests of this defendant against those of the 
government. While defendant's wish to preserve his sight is too 
obvious to necessitate further comment, the government interests 
require a more detailed examination.

"One of the oldest recognized drugs, marijuana was not regulated in 
the United States until the Pure Food and Drug Act of 1906, which 
required that the presence of marijuana be indicated on the labels of 
products of which it was a component. The modern prohibition began in 
1937, in response to primarily economic pressures -- 21 -- without 
significant inquiry into its effects on users.  [Washington's 
footnote 21: "Liquor manufacturers and distributors, still recovering 
from the effects of Prohibition, were interested in eradicating the 
potential competition from a drug often used for recreational 
purposes. In addition, criminalizing marijuana simplified the task of 
eliminating the competition for jobs during the Depression posed by 
the principal users of the drug, Mexican migrant laborers."]

"The 1970 Controlled Substances Act continued the prohibition of the 
use of marijuana, but a Presidential Commission was appointed to 
study its effects. Pending receipt of this report, marijuana was 
classified as a non-narcotic and although its use was still 
prohibited, the penalties were considerable reduced, with first 
offenders being discharged conditionally. The District of Columbia 
law, however, was not changed, and retains the narcotic 
classification based on the 1937 Uniform Narcotics Act.

"Medical evidence suggests that the prohibition is not well founded...."

How's that for a soundbite? Washington's decision continued:

"Reports from the President's Commission and the Department of 
Health, Education and Welfare have concluded that there is no 
conclusive scientific evidence of any harm attendant upon the use of 
marijuana. According to the most recent HEW study, research has 
failed to establish any substantial physical or mental impairment 
caused by marijuana. Reports of chromosome damage, reduced immunity 
to disease, and psychosis are unconfirmed; actual evidence is to the contrary.

"Furthermore, unlike the so-called hard drugs, marijuana does not 
appear to be physically addictive or to cause the user to develop a 
tolerance requiring more and more of the drug for the same effects. 
The current HEW report also notes the possibility of valid medical 
uses for this drug...

"The Court finds that this defendant does not fall within the third 
limitation to the necessity defense. The evil he sought to avert, 
blindness, is greater than that he performed to accomplish it, 
growing marijuana in his residence in violation of the District of 
Columbia Code. While blindness was shown by competent medical 
testimony to be the otherwise inevitable result of defendant's 
disease, no adverse effects from the smoking of marijuana have been 
demonstrated...

Judge Washington could have ended his decision at this point, but he 
went on to assert its applicability to other necessity-defense cases. 
He projected and refuted an argument that would deny the necessity 
defense based on the literal wording of the DC Code section, which 
makes no reference to extenuating circumstances.  He also discussed 
whether a defendant should have to prove necessity "beyond a 
reasonable doubt" and concluded that "by a preponderance of the 
evidence" was sufficient.

As John Karr put it, "Judge Washington made an effort to find for 
Randall in every important way."

Recollections from Karr

"Randall came to me through Alice O'Leary, who was an employee of a 
client of mine at the time, a company called The American Theater. 
Her story was very touching: 'My boyfriend has this problem. He's 
been busted for growing marijuana on our back porch on Capitol Hill 
and he's going blind from glaucoma.' So I said 'Okay, bring him in...'

"He told me his very interesting story. So I called a Dr. Brown 
either at NIH or NIMH and said, 'What's current on the use of 
marijuana as a medicine?' And he said there were three programs 
ongoing that NIH knew about. One, I think, in Alabama; one in North 
Carolina; and one out at the Jules Stein Institute [UCLA].  He said 
one involved a THC solution delivered intramuscularly; one program 
reduced it to a pill taken orally; and the one in California was 
doing it by smoking marijuana.

"So I called the people in North Carolina and I think it was Alabama 
and they said that their results were very mixed. But Dr. Hepler at 
UCLA said 'I got this program going and it looks like a real winner.' 
So we sent Randall out to UCLA and Hepler tested him-

"He had no money for the defense. In fact, we never got paid for 
this. It may have been Alice who put together enough money for the 
trip. She was the real driver in this thing because she was very 
concerned about him. Anyway, he went out there for about 10 days and 
Hepler said 'It's a winner.' I asked Hepler if he would come and 
testify. We advanced the money for that, I think it was 13 hundred 
bucks but it didn't matter because at this point we were all excited 
about the case...Sure enough, he came and he was a terrific witness.

"There were some amusing moments in the trial. I remember the 
delivery of one of the plants from the FBI storeroom to the 
courtroom, wrapped as if it was a gift from a florist. It reminded me 
of a revue by the old comedy team, Olsen and Johnson, which began 
with a hotel bellhop crossing the stage and calling out 'Plant for 
Mrs. Jones. Plant for Mrs. Jones.' At the end of each act he would 
reappear and the plant would have gotten larger and larger and 
larger...The FBI agent carefully unwrapped the plant, which was 
mature and now withered, and the prosecutor asked him to roll a joint 
from it, which he did. This was to prove that it was a usable amount 
of marijuana...

"At one point I asked my contact at NIMH, Dr. Brown, whether there 
was a program to get him marijuana legally. And he said you've got to 
get an 'Investigational New Drug' approval from the FDA. We called 
FDA and they sent us the forms and we helped Randall fill them out 
and send them back and eventually an Investigational New Drug license 
was issued.  And for I don't remember how long, Randall would show up 
at Morton's Drug Store in the 300 block of Pennsylvania Avenue 
Southeast, three blocks from the Capitol of the United States, and 
pick up his weekly supply of marijuana. Which looked like an 
olive-drab pack of cigarettes with a band around it saying 'Property 
of the United States of America.' I remember it vividly because it 
was just so perfect.

"I called FDA and was told that it was grown in Mississippi and 
processed and packaged in North Carolina, where all the cigarettes 
are processed and packaged..."

P.S.

Attorney Paul Smollar, who worked with Karr on U.S. v. Randall, 
recalls: "As a memento, Bob took two cigarettes out of the first pack 
he received from the government, removed the marijuana, and framed 
the papers -one for each of us to commemorate our victory in 
court...'Medical necessity' was then a new argument. It had been 
argued before in criminal cases, but never in connection with 
marijuana. John is a very creative thinker and an excellent trial 
lawyer.  And he had a good working relationship with Judge 
Washington. They respected one another. Judge Washington was not only 
very bright, but he was willing to make a decision that might be 
unpopular or might be on the leading edge of the law. His decision 
for Randall was far ahead of its time."

Some 35 years after Judge Washington found for Randall, attorney 
Robert Raich framed a "medical necessity" argument on behalf of the 
Oakland Cannabis Buyers Club in a case that went to the U.S. Supreme 
Court. Raich was unaware of Judge Washington's decision in support of 
Randall. "I wish I had known about it," he told us. "It was 
scholarly, well-reasoned and well written. I would have incorporated 
it... I wish we had more such judges these days."

Judge James A. Washington died in 1998 at the age of 83. His 
obituaries made reference to his five-year stint in the War Division 
of the Justice Department, joining the Howard faculty in 1946, his 
work as a lawyer in connection with Brown v. Board of Education and 
other cases leading to the end of public-school segregation in 1954, 
and a terrible fall that confined him to a wheelchair for the last 20 
years of his life. His decision in U.S. v. Randall exonerating a 
marijuana user on grounds of medical necessity was too far ahead of 
its time to be recognized as a signal achievement.
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MAP posted-by: Richard Lake