Pubdate: Tue, 21 Jul 1998 Source: Orange County Register (CA) Contact: Website: http://www.ocregister.com/ RESISTING THE LAW In November 1996 California voters passed Proposition 215, which then became Section 11362.5 of the California Health and Safety Code. In so doing the people expressed a strong desire for government authorities to create or at least to facilitate a small "white market" for seriously ill people whose doctors believed they could benefit from the use of marijuana. Indeed, one of the purposes of the initiative was: "(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." Most California law-enforcement officials opposed Prop. 215 when it was on the ballot. But as officials sworn to uphold the law as it is, not as they might prefer it, they could have been expected to shrug off the electoral defeat and then try to find a way to implement the law with as little harm as possible. The initiative didn't mandate, for example, setting up a government program to grow, check for the validity of physicians' recommendations and distribute medical marijuana, although that would be one possibility. But it clearly asks law-enforcement officials to make a good-faith effort to cooperate with those who are trying to implement the law, perhaps even working with them to develop reasonably clear guidelines to distinguish between a good-faith effort to provide marijuana to sick people and ordinary street sales. Looking at the way local officials have chosen to deal with Marvin Chavez, leader of a group he calls the Orange County Cannabis Co-Op, and former San Bernardino County Sheriff's Deputy David Lee Herrick, a volunteer with the Co-Op, it is difficult to avoid the suspicion that local officials are doing the opposite. Instead of making distinctions and trying in good faith to implement a law that will undoubtedly require a trial-and-error process, they are refusing to make distinctions. "I don't see any difference between Mr. Herrick and a street dealer," said Orange County Deputy District Attorney Carl Armbrust after Mr. Herrick was sentenced Friday to four years in prison for selling marijuana. He has been in jail since March 18, 1997. Mr. Herrick had in his possession several baggies identified as those of the Orange County Cannabis Co-Op, with a large "NOT FOR SALE" label. Superior Court Judge William Froeberg, who heard Mr. Herrick's case and imposed the sentence, refused to let the jury hear any arguments regarding California's medical-marijuana laws, although the jury had requested such information. To the outside observer, this approach looks more like an effort to prove to Californians that Prop. 215 was a mistake than a good-faith effort to implement it without strengthening the black market. Mr. Armbrust is using a clever ploy. Prop. 215 specifically stated that for medical patients and caregivers a physician's recommendation creates a defense against charges of possession and cultivation, but it doesn't mention sales. So the D.A.'s office contends that any time money changes hands - even if it's called a voluntary donation and there's no evidence anywhere in the police reports or the court record that the stuff is being distributed to anybody but people with a bona fide physician's recommendation - it's a sale and it's a crime. But the most relevant appeals court case on medical marijuana, People v. Peron, was clear on the matter: "Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expenses ..." Mr. Herrick's conviction and extraordinarily stiff sentence will be appealed, of course. Sharon Petrosino, his attorney, told us there were issues of possible prosecutorial misconduct, plus the fact that the judge forbade any testimony on either Prop. 215 issues or medical necessity issues, that should make an appeal be considered favorably. Meanwhile, David Herrick has been sentenced to four years, essentially for trying to help implement Prop. 215 and being honest about it when some police came to his motel room by mistake. Outrageous. The case highlights our long-held belief that local officials need to work conscientiously and soberly to implement the will of the people rather than laboring to prove that Prop. 215 was foolish. As we read the polls, almost everybody in California believes this except a few zealous prosecutors. Will even an appeals court decision get their attention? - --- Checked-by: Melodi Cornett