Pubdate: Wed, 7 April 1999
Source: San Francisco Bay Guardian (CA)
Copyright: 1999 San Francisco Bay Guardian
Author:  Randall Lyman  Our newshawk writes: "Randall Lyman covers a lot of ground in this
thoughtful and comprehensive article about California's war against sick
people. This is good journalism, because it helps readers understand the
players and issues." 


California voters supported medical marijuana. The state's new
attorney general says he does too. So why are patients who smoke pot
still getting arrested?

By Randall Lyman

LAST YEAR  Dr. Vincent DeQuattro learned that Steve Kubby, a former
patient, was still alive. DeQuattro was amazed: 15 years ago he had
diagnosed Kubby with malignant pheochromocytoma, a rare form of
adrenal cancer that usually kills within five years.

The doctor learned of Kubby's survival when he opened the state voter
information pamphlet. Kubby was listed as the Libertarian Party's
candidate for governor.

"I contacted him to determine how it was that he had survived all
these years," DeQuattro wrote to the Tahoe City Superior Court. "He
told me that he was treating himself with the advice of his physicians
in northern California with marijuana and has been taking no other
medical therapy for several years."

"In some amazing fashion, this medication has not only controlled the
symptoms of the pheochromocytoma, but in my view, has arrested its

For growing and owning this medication, Kubby and his wife, Michele,
were arrested Jan. 19 at their home in Olympic Valley by officers of
the federally funded, four-agency North Tahoe Task Force. Agents
seized 265 marijuana plants the couple was growing as medicine.

California's war on drugs has become a head trip in its own right.
When Bill Lockyer was elected California attorney general last year,
medical marijuana activists hoped Proposition 215 -- the 1996 ballot
initiative that sought to legalize marijuana cultivation and
possession for medical use -- would finally be enforced fairly and

In the two years since voters approved the Compassionate Use Act
(Prop. 215's full title), implementation of the law has been nothing
short of chaotic. Former attorney general Dan Lungren cooperated with
federal drug agents to close cannabis buyer clubs throughout the state.

The federal government is still aggressively enforcing federal
anti-pot laws, which don't make an exception for medical users. The
Drug Enforcement Agency often raids pot gardens or funds local
multiagency drug task forces; in October federal marshals closed the
Oakland Cannabis Buyers Cooperative (CBC). Late last month, according
to reports, federal drug czar Barry McCaffrey told Lockyer he would be
subject to arrest under federal law if he tried enforcing Prop. 215
back home.

Lockyer's communications director, Nathan Barankin, told the Bay
Guardian that McCaffrey did not threaten Lockyer. He said Lockyer
suggested to McCaffrey that it might be possible to aid the federal
government with marijuana research by providing it with pot seized in
California from illegal commercial growers; McCaffrey told Lockyer
that that would probably violate federal law.

"It was not a threat," Barankin said, "but on the other hand, it
affirmed for the attorney general how serious the feds are about
enforcing federal law."

For medical marijuana users in many parts of California, local law
enforcement is just as much of a threat. Like Lungren, Lockyer has
left decisions about arresting and prosecuting medical pot users to
police chiefs, sheriffs, and district attorneys.

Some prosecutors have respected the 215 mandate. The office of San
Francisco district attorney Terence Hallinan hasn't busted any medical
marijuana patients. The Oakland City Council has stood behind the
cannabis clubs that provide pot to patients with doctors'
testimonials, and it even declared a public health emergency when the
Oakland CBC was closed. Alameda County has filed an amicus brief in
the CBC's federal court case challenging the closure.

But many local prosecutors are unable or unwilling to differentiate
between sick people and large-scale commercial growers. And months
after Lockyer took office, the state's voter-approved, medically sound
policy is still falling through the cracks.

"I see no good faith on the part of law enforcement through most of
the state to uphold Prop. 215," says Bay Area cannabis activist Chris
Conrad, who appears as an expert defense witness in two or three
medical marijuana trials a month.

"You have to plead guilty to misdemeanor cultivation, then the judge
says you're a medical marijuana patient and can grow and smoke it,"
Conrad told us. "People get found guilty for something they're legally
allowed to do, then they're told they can go ahead and do it."

Hillary McLean, another Lockyer spokesperson, told us her boss would
continue to let anti-pot D.A.s round up medical users. "Lockyer's
philosophy on 215 is that he respects local prosecutors' decisions to
prosecute or not, and he's going to be consistent with that and not
overrule the decisions of the local district attorney," she said.

The Kubbys have been charged in Placer County Superior Court with a
total of 19 counts of cultivating marijuana, possession for sale, and
conspiracy to commit a crime. Their trial is scheduled for May 18.

"The task force began the surveillance because they received an
anonymous note that I was financing my campaign with drug money,"
Steve Kubby told the Bay Guardian. "In six months they didn't catch us
in a single criminal act. Now they have to explain why they spent half
a million dollars on a crank note, peeking through our windows, and
going through our trash" -- where the Kubbys left notes saying they
were medical marijuana users.

Current state guidelines, drafted by Lungren's office, allow medical
marijuana users to grow two plants each. Patients say that's not
nearly enough. Under the Oakland CBC's guidelines, member patients may
grow up to 156 plants.

Michele Kubby suffered a miscarriage in September; her husband blames
the stress caused by the surveillance. He told us a prison stay would
be "literally a death sentence" for him.

"I am at risk of my adrenal tumors suddenly giving me a lethal dose of
adrenaline," he said. "For some reason we don't understand, cannabis
provides a miraculous relief."

Lockyer hasn't intervened in the Kubbys' case, or in any other medical
marijuana cases. But he allowed a Justice Department employee, special
agent supervisor Mick Mollica, to appear as a prosecution witness
against the Kubbys at a March 2 hearing.

Barankin said he did not know if Lockyer knew in advance that Mollica
would be testifying. "Mollica was subpoenaed as a recognized expert in
the area," he told us. "He was called upon to testify, and he did so
truthfully and honestly."

"I think with Lockyer we'll start to see some good faith enforcement,
but not right away," activist Conrad said. However, he said, at a Feb.
13-14 conference of California NORML (National Organization for the
Reform of Marijuana Laws), "there was a lot of talk about Lockyer and
a sense of disillusionment. People feel upset: they were stumping for
Lockyer in November because of his position on 215, but he hasn't
dropped a single medical marijuana case yet."

Lockyer is reviewing his policy on enforcement of Prop. 215. A state
task force met to discuss the issue Feb. 3. The group is composed
mostly of law enforcement officials -- 14 of them, compared to seven
medical experts and only one medical marijuana activist. The law
enforcement members include San Francisco's Hallinan, who has publicly
supported medical marijuana, and Arcata police chief Mel Brown, whose
patient ID program has been lauded as an exemplar of police-patient

But Lockyer has kept on Deputy Attorney General John Gordnier, the
lead prosecutor on medical marijuana cases under Lungren.

McLean defended Gordnier's presence. "He's a civil service attorney
with a lot of institutional knowledge about the issue," she said. "He
is participating in discussions of the task force. I wouldn't
attribute his motives to one side or another. He's going to do the
best job he can for his boss."

Those hours the North Tahoe Task Force spent peering through the
Kubbys' windows paid off double. As well as netting Steve and Michele
Kubby, they took in a reporter who visited the home to interview Steve.

Butte County sheriff's officers arrested freelance writer Pete Brady
at his Chico home Jan. 21 after his name was supplied to them by the
North Tahoe Task Force, which observed Brady at Kubby's home through a
window on Jan. 1 (see On Guard, 2/17/99).

Brady was arrested on the last day of a five-year probation for
possession of marijuana. He began using pot in 1994, on the
recommendation of his doctor, to treat pain from a back injury and
botched surgery. He now faces nearly four years in prison on state and
federal charges stemming from the new arrest. He is currently free on

Asked whether Brady was searched because he was observed with Kubby,
Detective Andy Dally of the Butte County Sheriff's Department said,
"That's part of it." He told us that "other than being on probation,"
the cops hadn't seen Brady commit any criminal activity.

Dally also said that during the search Brady could not produce a
doctor's recommendation for medical marijuana. Brady did show Dally an
Oakland Cannabis Buyers Club membership card.

"The cops bust people with any amount of pot, whether they've got a
doctor's recommendation or not, and let the courts sort it out," Brady
told us. He has filed a motion to dismiss for selective prosecution,
arguing he's being targeted because he's published articles slamming
the local police. The motion was scheduled for a hearing April 6.

"I'm continuing to represent myself so that my case will set precedent
and force implementation of Prop. 215 as its authors intended it,"
Brady said. "That means that when law enforcement comes into contact
with a person who possesses or grows marijuana, their first response
is to determine if the person has a valid medical recommendation."

A week before these arrests, Humboldt County sheriff's officers
evicted Richard Schwaner and Jean Baker from their Eureka home.
Schwaner, who uses pot to treat pain from a back injury, and Baker had
forfeited their home when they didn't show up in court to fight a
civil suit. They were afraid to appear in court because criminal
charges for pot possession were pending. (That case is currently on

The evicting officers discovered the couple's indoor pot garden and
took him in. In a voice mail message left shortly after the bust,
Baker told us the deputies had held a gun to her chest, and that she
had since gone into hiding.

Deputy district attorney Eamon Fitzgerald declined to comment on the

Schwaner told us his public defender, Bill Cater, recommended that he
plead guilty to cultivation and possession for sale -- and testify
against Baker, his partner -- to stay out of jail. "I told them I
can't cut a deal because I'm not guilty," he said.
- ---
MAP posted-by: Richard Lake