MEDICAL MARIJUANA BACKERS PUT PUBLIC PRESSURE ON DISTRICT ATTORNEYS

It may be the first time California public officials have ever been
targeted for recall because they're ignoring the outcome of a ballot
initiative. It's definitely the first time a group of prospective criminal
defendants has threatened political revenge against the people who would
prosecute them.

Those two unique realities give wide implications to the recall efforts now
being mounted or threatened against half a dozen district attorneys who
have pursued users of medical marijuana.

Medical pot advocates won public approval of their cause in a 1996 ballot
initiative campaign, passing Proposition 215 by a 56-44 percent margin. But
most prosecutors never recognized that measure as a defense in pot cases.
Now the activists are using recalls and the threat of recalls in an attempt
to muscle law enforcement into accepting legalization of "medipot."

The first vote comes May 22, when Marin County District Attorney Pamela
Kamena must try to defend her office and her actions in a special election
called after activists for the American Medical Marijuana Assn. gathered
thousands of petition signatures.

The same medipot backers and users have also served "official warnings" on
half a dozen other D.A.s, threating recalls if they don't cease prosecuting
patients who smoke marijuana to ease the pain and nausea of some illnesses
and the dealers who provide them with pot.

"We see recall actions as a means of convincing local prosecutors to comply
with Proposition 215," said Steve Kubby, founder of the AMMA. "This isn't a
vindictive thing on the part of patients. It's a matter of survival."

The initiative allowed use of medipot on the recommendation of a physician.
It has produced confusion and controversy ever since, as U.S. attorneys and
judges and some local sheriffs and prosecutors refused to recognize it as
law. Plus, judges and federal prosecutors contend federal laws banning
almost all marijuana use render the proposition meaningless.

Kubby, the 1998 Libertarian Party candidate for governor, and his wife were
cleared this spring of most charges against them in a landmark medipot
trial stemming from a 1999 raid on their home near Lake Tahoe which netted
police more than 100 marijuana plants.

Kubby presented evidence that he has used marijuana since 1976 to combat a
rare form of adrenal cancer and his physician testified that he needs the
pot to survive. He was convicted only of one count of possession of a
hallucinogenic mushroom, but has appealed that verdict, claiming the
mushroom was a souvenir which had long since lost any potency. The jury
hung 11-1 for acquittal on most other counts and they were dropped.

Now Kubby's group has warned Placer County D.A. Bradford Fenocchio, who
supervised the Kubby prosecution, that he will be the object of the next
recall.

The recall in leafy Marin County, just across the Golden Gate Bridge from
San Francisco, comes despite what Kamena calls her "progressive view" about
medipot. Her office guidelines exempt from pot possession prosecutions
anyone with fewer than seven mature cannabis plants and less than half a
pound of dried marijuana. She also does not prosecute anyone with AIDS or
breast cancer.

"These people want you to believe this is about medical marijuana," Kamena
told a news conference. "It is not. This process is about the rule of law
and the entire legal process."

She called her opponents "small minded" litigants trying to make the courts
"bend to their thuggish ends."

But Lynette Shaw, director of the AMMA's Marin County branch, argued that
even when medipot patients are not prosecuted, authorities in the county
frequently confiscate their supplies. "We're looking at 300 people who lost
their pot," she said. "After they get arrested and lose their pot and go
through all these hoops, only then are they let go."

Other district attorneys who have been warned by the medipot advocates
include those in El Dorado, Sonoma and Shasta County District Attoreny
McGregor Scott.

Opponents of the Marin County recall maintain the petition drive that
qualified the issue for a vote was misleading. The petitions, they note,
did not mention medipot, but attacked Kamena for prosecuting a woman
convicted of falsifying a court document in a child custody case.

State Attorney General Bill Lockyer joins the anti-recall chorus. "Recalls
of district attorneys," he says, "are an abuse of the system."

Meanwhile, most prosecutors say they will not allow themselves to be
pressured by any recall efforts.

"We're not going to react to someone wanting to put some type of political
pressure on us to make a decision on how we should apply the law," said
Edward Berberian, assistant district attorney of Sonoma County.

That declaration focuses on the real issue here: Can people who may be
prosecuted retaliate when district attorneys choose to ignore a standing
law they don't happen to like? And if they succeed, will they be setting a
dangerous precedent?