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| General Cannabis News | |
Joseph Rogers, 40, claims that he was arrested before a small group of ill
friends could come together to help one another obtain a cheap supply of
medical marijuana.
But Superior Court Judge Gerald Hermansen ruled that however "noble" Joseph
Rogers' motives might have been, his actions "don't appear to be legal."
In barring other members of the co-op from testifying at Rogers' upcoming
jury trial, the judge said the group didn't meet the legal definition of a
"primary caregiver" and thus was legally "irrelevant" to Rogers' defense.
The medical marijuana law, passed by California voters in 1996, authorized
pot to be furnished to seriously ill patients only by someone "consistently
responsible for their health, housing or safety," the judge pointed out.
While he disagreed with Wednesday's ruling and may appeal, Rogers' lawyer,
Kevin Sears of Chico, doesn't believe it necessarily forecloses a
medical-marijuana defense.
The jury that will hear the case will still have to determine whether the 21
small pot plants found at Rogers' home were more than for "personal use"
Sears noted.
The defense contends that the local case points up a serious shortcoming in
the so-called "Compassionate Use" law.
While it's now lawful to smoke pot with a doctor's recommendation in this
state, the initiative didn't provide clear guidance on how sick people
unable to grow marijuana themselves are to obtain it.
On that point, the judge was in agreement.
But he said that is an issue for the Legislature to resolve and that he had
to take the law as it currently exists.
"It is not, I believe, up to this court to fashion a remedy" to make up for
such a legislative gap, the judge said.
Rogers, the son of a conservative Coalinga farmer, is charged with
cultivation of marijuana and possessing pot for sale.
A handful of supporters accompanied him to court Wednesday, including a
Chico cancer patient, Sherry Stiles, who said privately she relies on people
like Rogers for marijuana to help her control the nausea associated with
chemotherapy.
"I'm too scared and sick to grow it myself, said the 54-year-old woman, who
wore a sweatshirt with a picture of a pot plant over the words: "I'm not a
criminal "
Arrested with Rogers were a middle-aged Paradise couple, Roger Chambers and
Susan Spangler, whose telephone number was on a flier Rogers had allegedly
circulated advertising to sell a variety of pot "clones" for $10 and up.
This summer, Hermansen ruled that sheriff's deputies did not have "probable
cause" to search the pair's ridge residence and ordered all of the evidence
seized from it, including some 178 miniature pot plants, thrown out of
court.
At Wednesday's evidentiary hearing, Chambers told the judge that he and
Rogers had designated each other as primary caregivers for the purposes of
furnishing pot to one when the other had none.
Chambers, who has a doctor's recommendation to use marijuana for a painful
neck injury, said he and Rogers had also provided marijuana to other medical
marijuana users in the area so they would not have to pay exorbitant street
prices.
However, he denied that either he or Rogers were selling the drug.
But when deputy district attorney Dan Nelson questioned him about the
numerous plants in his own home, and whether he and Rogers had provided pot
to others outside the small community co-op, Chambers invoked his Fifth
Amendment right not to answer on grounds his responses could incriminate
him.
Pointing out that a witness cannot "pick and choose" which questions to
answer, the prosecutor got the judge to strike Chambers' entire testimony.
Siding with the prosecutor, Hermansen said, "I don't believe that simply
getting someone to declare themselves a primary caregiver" complies with the
law.
The local judge said he was relying partly on a 1997 appellate court
decision blocking an Oakland cannabis buyer's club from dispensing marijuana
to ill patients.
Rogers' lawyer had argued that a "few sick friends helping each other get
marijuana" was far different than an Oakland club selling pot to people they
didn't know.
Despite the legal setback, Rogers remained fairly upbeat.
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