Pubdate: Sat, 21 Aug 2010
Source: Rutland Herald (VT)
Copyright: 2010 Rutland Herald
Author: Cristina Kumka
Bookmark: (Cannabis - Medicinal)


An East Wallingford woman will not be able to tell a jury that she 
needed to grow 30 marijuana plants in her backyard to save the life 
of her ill son, following a split decision by the Vermont Supreme 
Court released Friday.

Sue Thayer was driving her son, Winter Maxwell Thayer, to college 
Friday and could not be reached.

The mother lost her appeal of Rutland District Court Judge Thomas 
Zonay's ruling that forbade her to use a necessity argument to fight 
a 2007 felony marijuana cultivation charge.

In a 3-2 vote, the higher court ruled that Thayer can't tell a jury 
she grew marijuana outside for four years to improve the health of 
her son, Winter, who suffers from a kidney disorder, and a second 
son, Tristan Thayer, who died of leukemia in 2005.

A jury could have excused Thayer of the criminal charge if they 
believed she did it because of an emergency.

The Vermont Marijuana Eradication Reduction Team seized 30 plants 
from Thayer's Centerville Road yard in August 2007 after receiving a tip.

Thayer's attorney, Daniel Sedon, called the decision disappointing 
but said he would fight to reargue the appeal.

But he said, two judges understood his client's point exactly.

"Chief Justice Paul Reiber's dissent shows he really understood the 
argument we made, that it was an issue for the jury, not the court," 
Sedon said Friday.

"What Ms. Thayer did is provide her son with the marijuana that 
probably saved his life," Sedon said. "At the time, he (Winter) 
needed that and it probably made a difference. He just had a kidney 

Thayer, a master gardener with no criminal history, contends that she 
grew marijuana outside her home since 2003 because it eased her son 
Tristan's nausea following chemotherapy, improved his appetite and 
contributed to him returning to school.

It also improved the health of her other son, who suffered ill health 
due to scarred kidneys he had since infancy, according to the ruling.

Three of five justices said Thayer did nothing to demonstrate indoor 
cultivation was impossible for her for years, citing law that 
requires registered caregivers to grow medical marijuana inside and 
limit production to no more than 2 ounces or up to one mature plant.

The justices ruled that Thayer did nothing to try to follow the rules 
of the state's medical marijuana law and while she said she was 
"dismayed" by the provisions in the law, "she is nonetheless bound -- 
like the rest of us -- to abide by the law."

But Reiber, in his dissenting opinion, and Associate Justice Denise 
Johnson, said Thayer's dying son was an emergency.

Reiber said Thayer didn't break the law to protest Vermont law but to 
save the life of her son.

"I worry that today's ruling will lead to a trial where defendant's 
actions will be viewed in a vacuum and where she will be treated as a 
run-of-the-mill drug possessor, when in fact, according to defendant, 
she is a loving mother who simply wishes to provide her son with the 
best medical treatment available to avoid losing him like she lost 
her first son," Reiber wrote.

Sedon said the ruling forbids a jury from hearing the testimony of a 
longtime family doctor, who says the medical marijuana did help 
Winter Maxwell Thayer's illness.

Michele Martinez Campbell is a visiting professor of law at Vermont 
Law School specializing in drug cases.

She said although state medical marijuana laws differ slightly from 
state to state, the U.S. Supreme Court recently ruled, in a 
California case, that federal law that classifies marijuana as an 
illegal, controlled substance trumps all.

"The bottom line is in order to do that (grow medical marijuana or 
give it to her two sons) she had to go through certain procedures and 
she didn't do that," Campbell said.

"I don't know what precedent it's setting," Campbell said of the 
case. "We have a law and you need to follow it and the court is 
saying we're not going to make many exceptions to that."
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