Pubdate: Thu, 30 Jul 1998 Source: Orange County Register (CA) Contact: http://www.ocregister.com/ JUDICIAL ILLOGIC There's a fundamental contradiction at the center of Superior Court Judge Robert Fitzgerald's rulings last Friday in the case of Marvin Chavez, a patient who founded the Orange County Cannabis CoOp, which has tried to create an above-board "white market" for patients whose doctors believe they could benefit from medical marijuana. On the one hand, Judge Fitzgerald upheld the prosecution's request to be given access to the Co-Op member's medical records, in order to access (presumably from a prosecutor's perspective) whether those who joined the club actually had valid maladies. The most compelling prosecution argument was that the police had entrapped Mr. Chavez with a phony doctor's note; so.maybe there were other phony notes in the Co-Op files. Should prosecutors be in the business of second-guessing licensed doctors or penetrating the doctor-patient relationship to conduct a fishing expedition whose main purpose seems to be intimidation? Judge Fitzgerald didn't address those questions in his ruling. But in making the ruling, he acknowledged, as prosecutors have certainly acknowledged, that Mr. Chavez's Co-Op has records that include notes from doctors. That means the organization is engaged in activities related to Prop. 215, which allows patients with recommendations from doctors to grow and possess marijuana. Mr. Chavez may be trying to implement Prop. 215 imperfectly, foolishly or even illegally. His organization might not be a bona fide "primary caregiver" as the proposition defines the term. But there's no question his activities are related to the initiative California voters approved in 1996. Certainly there's no evidence that he has made a lot of money from his activities; if anything the evidence is to the contrary. In this regard, Judge Fitzgerald's ruling that Mr. Chavez cannot use Prop. 215 in his defense at his upcoming trial for selling marijuana is logically inexplicable. The ruling can only be understood from a certain narrow legal perspective. Orange County Deputy D.A. Cecil Armbrust has argued that since Prop. 215 did not specifically authorize sales then all sales are still illegal, even if cloaked as "donations." (The proposition, however, did speak of the government implementing a system for "safe and affordable" distribution, which seems to imply money might change hands.) So, according to this reasoning, if the case involves selling marijuana, Prop. 215 doesn't come into play and shouldn't even be mentioned. But that's a legal reading that ignores the reality. It is widely known that Marvin Chavez has been trying to set up an organization to provide marijuana to medical patients, who since November 1996 have had a legal right to it. Granted, perhaps he hasn't done it properly. Why couldn't the authorities work with him to operate under proper guidelines - unless they anticipate the county government setting up a program to grow marijuana and distribute it to bona fide patients? The alternative is to wink and send patients who have a legal right to possess marijuana to the streets to find it, which only strengthens the black market. Is that what prosecutors and law enforcement officials want to do? To treat Marvin Chavez as "just a marijuana dealer" and to forbid any mention of Prop. 215 at his trial is to perpetrate a fiction in the courtroom and deny the jury relevant information. The only explanation that makes sense is that certain people in the law-enforcement and judicial community are determined not to find a way to implement the law the people voted for, but to prove that it can't be implemented and the people were foolish. Mr. Chavez's attorneys say Judge Fitzgerald's decisions will be appealed, and they expect to prevail on appeal. Judging from appeals court rulings to date on medical marijuana-related cases, they will probably be successful. But that outcome won't excuse Judge Fitzgerald's illogical rulings. - ---