MEDICAL POT USE DEFENSE REJECTED

The Supreme Court agreed unanimously yesterday that "marijuana clubs" may
not invoke a patient's illness as a defense from federal prosecution, but
justices bickered over whether sick patients themselves can avert arrest by
claiming they need pot.

"We hold that medical necessity is not a defense to manufacturing and
distributing marijuana," the court said in its 8-0 judgment allowing
federal officials to shut down such operations in California and eight
other states. But only five justices signed its explanatory opinion because
of a spirited argument over Footnote 7.

The footnote, suggesting that even serious illness would not excuse a
patient -- a comment not necessarily binding in other cases -- was a side
issue that lawyers call "dicta" in the opinion written by Justice Clarence
Thomas and backed by Chief Justice William H. Rehnquist with Justices
Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy.

"Whether the defense might be available to a seriously ill patient for whom
there is no alternative means of avoiding starvation or extraordinary
suffering is a difficult issue that is not presented here," Justices John
Paul Stevens, David H. Souter and Ruth Bader Ginsburg countered in chiding
their colleagues for venturing beyond the facts in the case.

Many advocates of permitting marijuana use for medicinal purposes claim it
offsets nausea and other discomfort that causes patients with cancer and
AIDS to wither from malnutrition, but the court disputed that stance.

"It is clear from the text of the act that Congress has made a
determination that marijuana has no medical benefits worthy of an
exception," Justice Thomas wrote.

"It's encouraging to see the Supreme Court has seen through the pot
enthusiasts' smoke screen by ruling in favor of the federal government,"
said Robert Maginnis, of the Family Research Council, who called lobbyists
for medical marijuana a front for drug legalization. "Smoking pot is never
sound medicine."

Chuck Thomas, communications director for the Marijuana Policy Project,
minimized the decision's impact on the premise that virtually all marijuana
prosecutions are at state and local levels.

"We're still going to be able to protect 99 percent of the marijuana users.
The Drug Enforcement Administration doesn't have the resources to go into
states and deal with individual users," Mr. Thomas said.

Joyce Nalepka of Silver Spring, president of Drug Free Kids, praised
yesterday's decision, which she expected to help her organization's
campaign to block the practice of using voter initiatives to approve
medicines by popular vote.

"We agree with Justice Thomas. For all Schedule 1 drugs, there is no
medicinal use. We are going to work to turn back those initiatives," Mrs.
Nalepka said.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington
followed the lead of California's voter initiative to permit medicinal use
of marijuana.

Justice Stephen G. Breyer took no part in the case because his brother,
U.S. District Judge Charles Breyer, originally granted a federal request to
block marijuana distribution by Oakland Cannabis Buyers' Cooperative and
five other distributors.

The 9th U.S. Circuit Court of Appeals reversed the lower court and ordered
Judge Breyer to clarify "criteria for a medical necessity exemption."

The justices had no disagreement about overturning the 9th Circuit order,
which applied solely to distributors and manufacturers.

But the five justices who see the federal marijuana ban as absolute used
the same footnote to lecture against judicial interference, even to support
federalism by letting state law prevail.

"We share Justice Stevens' concern for showing respect to the sovereign
states that comprise our federal union," Justice Thomas wrote.

"However, we are construing an act of Congress, not drafting it. Because
federal courts interpret, rather than author, the federal criminal code, we
are not at liberty to rewrite it," he said in rebutting what he construed
as a call for judicial activism.

In other action yesterday, the high court:

* Ruled that federal appeals courts should use a broad standard to decide
if awards of punitive damages are so large as to be unconstitutional. The
court ordered further review of a $4.5 million punitive award against
Cooper Industries, a small California tool company.

* Allowed Tennessee to sentence Wilbert K. Rogers to 33 years in prison for
murder even though his victim, James Bowdery, died 15 months after being
stabbed. State law held attackers responsible for a death only if it
occurred within a year and a day of the assault.

* Agreed to decide if police may prosecute new crimes with evidence seized
from homes of criminals who consent to blanket searches as a condition of
probation on earlier convictions.

* Made public new appeal papers filed Friday night by Terry Nichols, asking
the justices to reconsider denial of his plea for a new trial on charges he
conspired with Timothy McVeigh in the Oklahoma City bombing that killed 168
persons. He said his plea is justified by the FBI's failure to give defense
attorneys thousands of documents, an omission that also led to postponement
until June 11 of McVeigh's scheduled execution tomorrow.