Pubdate: Wed, 11 May 2011
Source: Anderson Valley Advertiser (CA)
Copyright: 2011 Anderson Valley Advertiser
Author: Fred Gardner
Note: Fred Gardner is the editor of O'Shaughnessy's, the journal of 
cannabis in clinical practice.


Marian "Mollie" Fry, MD, and her husband Dale Schafer, an attorney, 
turned themselves to U.S. marshals Monday, May 2. They were taken to 
the Sacramento County jail, where they are awaiting transfer to 
federal prisons. They have begun serving five-year terms -ostensibly 
for the crime of Cannabis cultivation (growing plants), but actually 
for the crime of political organizing (educating people).

Mollie Fry is a founding member of the Society of Cannabis 
Clinicians, the group organized by Tod Mikuriya, MD, in 2000 to 
enable doctors entering the field to share and publish findings and 
observations - and defend themselves against persecution. Law 
enforcement at the state and federal levels had loudly opposed 
Proposition 215, the measure enacted by voters in 1996, and has 
curtailed its implementation ever since.

Fry, 54, is a breast cancer survivor. She will be going to the 
Federal Correctional Institution in Dublin, which is in visiting 
distance for the kids and grandkids. Schafer, who turns 57 this 
month, will be sent Taft, near Bakersfield. His looming concern is 
medical care - he's a hemophiliac with severely painful, 
blood-swollen joints, and is currently taking high doses of morphine 
and other analgesics.

I asked Dale how he was going to be spending his last week-end of 
freedom. He said, "Hugging my family."

Mollie and Dale raised five kids who are now grown-ups - Heather, 35, 
and Jeremy, 34, from Dale's first marriage, and Jeffrey, 24, Carol, 
20, and Tyler, 18, from their union. Heather and Jeremy have kids, 10 
and 11. Carol is going to have a baby in October. The extended 
family, minus mama and papa - which is what the grandkids call Mollie 
and Dale - will be together in the house in the foothills west of Auburn.

"We've got to keep paying the bills while our parents are gone," says 
Heather. "The government took all their savings, everything but the 
house." An insurance policy has been paying the mortgage 
($3,500/month) since 2007, when Mollie stopped practicing due to 
disability. Dale doesn't think the company will use her imprisonment 
as an excuse to stop paying, but he lined up a lawyer just in case.

Jeffrey has gone to work for the CannaCare dispensary in Sacramento, 
and feels grateful to have a job. Jeremy is going to be traveling 
with a country-jazz band. "They've got a big bus and gigs lined up 
throughout the south," according to Dale. "He can't get wait to hit 
the road. I told him, 'If that's your dream, man, jump on it and do 
it. If you don't do it right now..."

* * *

Mollie Fry says proudly that there have been doctors in her family 
since the Civil War. Her mother, a research psychiatrist, died of 
breast cancer at age 42. Mollie, then 13, started using cannabis to 
deal with her grief. It didn't impair her academically. She graduated 
from UC Irvine School of Medicine in 1985 and did an internship at UC 
Davis in psychiatry. She switched to family practice when she began 
practicing in Lodi in '87. It wasn't until 1999 that she became a 
cannabis consultant - a decision stemming from her own illness.

In December, 1997, an exploratory procedure (which Mollie had 
insisted on against the advice of an oncologist) revealed a 
malignancy that had spread to three lymph nodes. Her breasts were 
removed and she underwent extensive radiation treatment. She used 
cannabis to deal with the nausea and anxiety. "It was hard to get," 
Dale says, which is why he grew a few plants in their garden in the 
summer of '98.

Dale had observed the medical use of marijuana first-hand when he was 
in the Navy, a lanky 19-year old assigned to Oak Knoll Hospital. He 
has indelible memories of assisting surgeons trying to "perfect" the 
stumps of sailors whose limbs had been amputated en route from 
Vietnam. "People who were in radiation therapy would go down the back 
hallway to smoke," he remembered. "We knew that it was the only thing 
that helped."

Dale worked in Kaiser emergency rooms to put himself through college 
and law school. "I wasn't naive, I knew that marijuana had medical 
benefits," he says, "But it wasn't until Mollie got cancer that I 
really started digging into what Prop 215 was all about."

It's difficult to picture now - now that doctors willing to issue 
cannabis recommendations are advertising in the media - but when Prop 
215 passed there was only one physician proclaiming his willingness 
to approve cannabis use for conditions other than AIDS or cancer: Tod 
Mikuriya, a Berkeley-based psychiatrist. As of 1999 the number was 
not in double digits, although demand was enormous. Most pot smokers 
were embarrassed or afraid to ask their regular doctors for letters 
of approval, and most doctors were unwilling to write them. Some were 
afraid of getting in trouble with the medical board or the DEA and 
jeopardizing their livelihoods. Others were too conscientious to 
recommend use of a medicine they had learned nothing about in medical 
school and couldn't discuss in terms of proper dosage, side effects, etc..

Bobby Eisenberg, an acquaintance whose son played on a Little League 
team that Dale coached, put him in touch with Tod. "Mollie called him 
and he invited us to visit him." Dale recounted. "We saw his office, 
then visited him at home. I started reading everything I could find 
on medical marijuana because I wanted to know how to advise people to 
do it right. And the cops wouldn't tell me. Nobody will tell you to 
this day how to do it right. That's the problem. They want you go to 
go out and fuck up and then come and arrest you. Every other law that 
the government passes, they tell you how to make it work. They won't 
tell you. They want to keep it that way, they want everybody to be 
afraid, to be afraid that if there's a slight change, they could go down."

In the summer of '99, Dale and Mollie opened adjoining offices in a 
small foothills town called Cool. She did Cannabis consultations, he 
advised patients of their rights. They were growing 20 plants on 
their property when two El Dorado County Sheriff's deputies paid a 
visit. The next day, Dale says,

"Mollie called the head narcotics detective, Tim McNulty. She told 
him, 'Don't waste your money snooping around. I've had cancer, I'm 
growing pot, and we want to talk to you about it. Get up here.'

"McNulty came to the house and I took him up to the garden. I used to 
represent cops. I thought they trusted me. I talk their language 
pretty well. He took a look at our paperwork and said it looked fine. 
He even said I was a good grower! But he made a request that Mollie 
wasn't willing to grant. He said, 'You should help us separate the 
18-year-old skateboarders from the people with cancer.' Mollie said 
'I'm a doctor, not a cop. I'm willing to see people and determine if 
they're qualified. I'll do my job, you do yours.'"

Dale and Mollie felt confident that their medical/legal practices 
were appropriate under Prop 215. In addition to seeing patients in 
Cool, they leased space in Oakland and Lake Tahoe to conduct 
one-day-a-week clinics (again following Mikuriya's practice model). 
In Tahoe they met a young couple, Paul Maggy and Tracy Coggins, who 
came to work for them as office managers. Maggy was facing a 
cultivation charge from a 900-plant grow - which is not something 
Mollie and Dale held against him. During the seven months he would 
work for them, Maggy helped them grow marijuana (they grew 43 plants 
in 2000) and in distributing the surplus to patients of Mollie's.

In this period Mollie encountered Attorney General Bill Lockyer at a 
VFW fundraiser and told him about her practice. "Lockyer said 'Okay, 
go for it,'" according to Mollie, "'but be low-key.' He said 
something to imply, not that I should hide, but that I should be 
discreet. Maybe that was the word he used... But the problem was, I 
had staff and office rents, and how do you let patients know that 
you're available without advertising?"

Dale arranged a meeting with Dave De Alba, the senior assistant AG 
whom Lockyer had put in charge of medical marijuana cases, trying to 
confirm that Mollie's procedures were legal under state law. The only 
thing DeAlba advised doing differently, Dale says, was "stay the hell 
away from Tod. He said that Tod is targeted, and that Tod is a 
problem. We ignored that, of course, because we liked and respected Tod."

As for federal law, Dale was relying on a 1999 ruling by the 9th 
Circuit Court of Appeals in the U.S. v. Oakland Cannabis Buyers Co-op 
case that made "medical necessity" a possible defense for marijuana 
distribution. Dale says he told the deputies who inspected his grow 
in 2000 and again in 2001 that any surplus would go patients, and 
they told him that as long as the plant total was below 100, the feds 
would not take notice.

In July of 2001 Dale -increasingly convinced that marijuana was safe 
and effective medicine- announced that he was running for District 
Attorney of El Dorado County. In September the DEA raided his 
property, confiscating 34 plants and 6,000 patients' files. In 
November he got 15% of the vote for DA.

Mollie recalls the raid:

"I was going to bed with a migraine headache and they came running up 
my driveway with their guns in their riot uniforms. I opened my arms 
and said, 'I entirely submit. You are welcome in my home.' And they 
still forced me to the ground and handcuffed me for two hours. My 
hands turned white. I was so cold, my hands were shaking... So they 
moved me into the trailer. Then I had to change our granddaughter's 
shitty diaper while in handcuffs. I couldn't quite wipe... I said to 
the agent, 'It's so hard having five children and a baby to take care 
of and cancer...' And she looked at me and said, 'You have cancer?' 
And I go, 'Of course I have cancer, why the hell do you think I'm doing this?

"Not even the staff that raided me and was abusing me knew the truth."

Neither Mollie nor Dale was indicted then, but the DEA notified Fry 
that her prescription-writing privileges would be revoked because "It 
is inconsistent with the public interest for a DEA registered 
practitioner to live in a residence wherein large quantities of a 
controlled substance are being stored, cultivated, manufactured 
and/or processed for distribution and/or sale. In addition, it is 
inconsistent with the public interest for a DEA registered 
practitioner to be engaged in the illegal sale of a Schedule I 
controlled substance such as marijuana at the practioner's registered 

It wasn't until June 22, 2005 -two weeks after the U.S. Supreme Court 
ruled in the Raich case that an individual's right to use marijuana 
as medicine under California law was superseded by the federal 
prohibition - that Fry and Schafer were indicted. The charge was 
conspiracy to grow ("manufacture") and distribute marijuana between 
August '99 and September '01. Because they had grown more than 100 
plants in this period, they were facing five-year mandatory minimums. 
Dale says he was completely blindsided by the feds basing their 
charges on a cumulative three-year total.

The US attorney offered a deal that would have meant 18 months in 
prison for Schafer and no prison time for Fry. "But if she couldn't 
practice and I was gone," Dale says, "we would have gone bankrupt and 
lost the house. So we said 'Thanks but no thanks.'"

A 10-day trial was held in August 2007. Schafer was represented by 
Tony Serra, Fry by Laurence Lichter. Opening arguments hadn't 
concluded before Judge Frank Damrell instructed the jury that any 
references to the medical use of marijuana were irrelevant under 
federal law, and that they absolutely had to abide by his 
instructions. Damrell also forbade the defense from citing their 
belief that "medical necessity" on the part of patients justified 
marijuana production and sales. (In 2003 the U.S. Supreme Court had 
overruled the 9th Circuit's recognition of "medical necessity" as a 
defense in the Oakland CBC case.)

Paul Maggy was the star prosecution witness. He had gone to prison in 
connection with his earlier grow op, and been released after serving 
13 months of a five-year term in exchange for his testimony. Maggy 
swore that on behalf of Mollie and Dale he had sold processed 
marijuana, clones, and "starter kits" consisting of lights, plant 
nutrients and clones.

According to Bobby Eisenberg, whose account of the trial is 
trustworthy, "Several patients were brought in to testify that they'd 
purchased their marijuana from Dr. Fry or her staff. Jody Bollinger 
testified that she purchased a half ounce of medicine from Mike 
Harvey with a check made out to Schafer for $40. Keep in mind the 
going rate for a half ounce of bud is closer to $200. Harvey 
testified that some patients received their medical marijuana for 
free; in some cases they paid only $10 delivery charge.

"Another patient, Jeff Teshera, a convicted robber, got leniency for 
testifying that Fry examined him on Nov. 30, 1999, and that she and 
Heather Schafer then sold him marijuana. It turned out that Heather 
Schafer had given birth to her daughter on Nov. 29 and that Mollie 
was with her at UC Davis on the 30th, all day. Dr. Fry had her 
Physician's assistant, Rob Poseley, working in clinic on the 30th and 
he testified that he, and not Dr. Fry, had examined Teshera. No 
marijuana was sold.

"El Dorado County sheriff's deputy Bob Ashworth told the jury that he 
had deceived Fry and Schafer for over a year and a half leading them 
to believe that everything they were doing was legal under state law 
and safe, given federal policies. He observed their marijuana gardens 
in 1999, counting 20 plants and in 2000 when he counted 43 plants. He 
spoke with Schafer on the phone numerous times, right up until a few 
days before the raid on September 28, 2001, with assurances that 
everything was fine. It turned out that El Dorado County deputies 
were working hand in hand with the DEA and the prosecutor to entrap 
Fry and Schafer throughout the investigation.

"Jacob DuCharme had been employed by Fry and Schafer just after Paul 
Maggy had been hired. Jake wanted to testify that he and his wife had 
been unwilling to work for Fry and Schafer because Maggy and his 
girlfriend, Coggins, were up to no good. The DuCharmes knew that 
Maggy and Coggins were out to sell marijuana to Fry's patients 
without Fry's knowledge. DuCharme was silenced by prosecution 
objections. He never got to say that Fry and Schafer had gone to 
great lengths to insure that everyone in the office understood and 
upheld the law in California. The jury never heard the truth."

The Real Crime

Why did federal prosecutors add up plant counts from three years of 
cultivation to push the total over 100? Why were they so bent on 
making Mollie Fry and Dale Schafer face mandatory-minimum sentences? 
Why were Mollie and Dale a much more important target than Maggy, the 
freed informer, who had grown 900 plants and had numerous other 
offenses on his record?

Because unlike Maggy, Mollie and Dale were political organizers.

Anybody who joins a movement or a party has been organized by another 
person or persons. Being organized (in the sense I mean it) is not 
the same as being moved by a speech or a leaflet (no matter how 
briliiant the orator or writer). It involves a closer, more direct 
connection. There's always a person who confirms your inclination to 
throw in with the group, or convinces you by example or explanation 
that the cause is in your interests. That's what Mollie Fry and other 
MDs following Mikuriya's leadership did with their patients - they 
organized them. They did more than define the patient's pain 
(emotional and/or physical) in medical terms, they enabled the 
patient to tell the truth about their illegal drug use, i.e., their 
subversive behavior.

Mollie Fry and her colleagues have helped organize hundreds of 
thousands of legal medical marijuana users in California. This was 
the insight of Phil Denney, MD, a neighbor of Mollie's. A brief 
conversation with her at the mailbox in 1999 led Denney to get into 
the field, too.
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