Politics: The Ceaseless Argument Over Who Gets To Do What To Whom, For How
Long, And Against What Degree Of Dissent

JUDGE ALLOWS MEDICAL NECESSITY DEFENSE

Six weeks ago, I wrote in this column about Matthew Ducheneaux's attempts
to convince Sioux Falls Magistrate Patricia Riepel to allow him to present
a "medical necessity" defense in his trial over his possession and use of
cannabis. Matthew, a quadriplegic, was arrested last summer. He had a note
from his doctor acknowledging that he used cannabis to quell spastic muscle
contractions, a common affliction of paralytics.

Judge Riepel published her decision April 11. It was well-reasoned and
well-documented, and it was the first time in history that a judge has
decided to allow a defendant in a South Dakota trial to present facts and
expert testimony as to the medicinal properties of cannabis.

Defense attorney Chris Moran, of the Minnehaha County Public Defender's
office, had submitted a brief which maintained that Ducheneaux had a right
to use cannabis based on the statute law governing acts committed to
prevent a greater harm. The text of the law is:

SDCL 22-5-1. Conduct forced or under threat of force. A person may not be
convicted of a crime based upon conduct in which he engaged because of the
use or threatened use of unlawful force upon him or upon another person,
which force or threatened use thereof a reasonable person in his situation
would have been lawfully unable to resist.

I don't style myself a legal scholar, but I am fascinated by the system
which attempts to micromanage our lives even to the point of telling us
what we can and cannot put into ourselves. I'm intrigued by the use of this
statute, particularly by Moran's assertion that the force preventing
Ducheneaux's legally acceptable medical application of cannabis is
"unlawful" force.

Compounding my interest is the fact that Prosecutor Matthew Theophilus
(under direction from Minnehaha County States Attorney Dave Nelson)
stipulated to the following facts: that Ducheneaux is paralyzed, that he
suffers from "spastic paralysis syndrome", that smoking cannabis quells the
spastic tremors, and that while prescription drugs like Valium and Marinol
also quell the tremors, they produce undesirable and toxic side effects.

Theophilus' contention is simply that, since South Dakota law doesn't
recognize a medicinal value in cannabis, then there is no such value,
despite his own stipulation that there is. Therefore, Ducheneaux should not
be allowed to present expert testimony, or even to testify himself, that
cannabis alleviates his spasms.

But, as is usually the case, what interests me is irrelevant. Judge Riepel
recognized the facts and agreed with them. She then proceeded to explain,
for the benefit of the upcoming prosecutorial appeal (first to circuit
court, then to the SD Supreme Court), why she will not only allow testimony
from an expert in medical uses for cannabis, but authorized expenditure of
public money to defray the expert's appearance expenses.

She first dismissed the prosecutor's assertion that Ducheneaux had
alternate (albeit inferior) remedies available, citing the SD Supreme
Court's repeated finding that, under the justification/necessity defense,
the jury is the finder of fact on such arguments. As for the state's
contention that the legislature doesn't recognize cannabis' medical value,
Riepel said that the pertinent fact is that the legislature does not
currently hold officially that there is no medical application. "As such,
we are left with the defense of necessity unconstrained by any legislative
determination on whether or not it is applicable to marijuana use for
medical reasons."

Judge Riepel cited the two medical cannabis bills for which I advocated in
the just-ended legislative session, noting that "the bills were not acted
on as they were set for the 41st day." I can imagine plates being shattered
in the kitchens of the committee members who decided to "41st day" the
bills rather than take them to the full Senate and House, respectively, for
evisceration and execution. "Goddam judges. Give 'em a little rope and they
hang us."

I'll lay a few bucks on the bet that they'll try to close that loophole
next January. After all, we don't want an epidemic of folks breaking their
necks just so they can smoke dope without being arrested and jailed.

Judge Riepel quotes the South Dakota Supreme Court on its standards for
reviewing lower court trial prodedure:

"The defense of necessity is properly raised when the evidence, if believed
by the jury, would support a finding by them that the offense was justified
by a reasonable fear of death or bodily harm so imminent or emergent that
-- according to ordinary standards of intelligence and morality -- the
desirability of avoiding the injury outwieghs the desirability of avoiding
the public injury arising from the offense commmitted. The essential
element permitting the submission of the defense to the jury is a
reasonable fear of bodily harm." State v Boettcher: 443N.W.2d 771 (SD 1978)

Riepel wraps up her decision: "This court concludes that the medical
defense is the extension of the necessity/justification defense recognized
by our state Supreme Court. Further, the court concludes there is no
legislative intent precluding the necessity defense. This court finds the
South Dakota Supreme Court's opinions relating to this issue are applicable
to the facts of this case. If the facts as stipulated to by the parties are
presented at trial, this court holds that the issue of
justification/neccesity would be presented to and decided by the jury.

"Thus, because we are not limited in the ways described above, the
necessity defense is available as a defense for the possession of
marijuana. Further, in light of this court's ruling, the court authorizes
the Public Defender's office to expend money for an expert witness."

Prosecutor Theophilus said he wants the circuit court to overrule Judge
Riepel's decision to allow the necessity defense. This question could even
be heard by the South Dakota Supreme Court before Ducheneaux's trial. My
inclination is that, given the excellent legal precedent documentation
provided by Judge Riepel, such appeals will have little chance of success.
In fact, given the Boettcher citation above, it would appear to be a
slam-dunk reversal for Moran had she ruled the other way.

Defense attorney Moran deserves our gratitude for, first, giving a damn,
and second, for doing the work necessary to provide Judge Riepel with the
tools with which to form her opinion. Judge Riepel deserves credit for
taking the first strokes against the tide of political pressure which has
stifled common sense in South Dakota courts on this issue for better than
thirty years.

All of which leads us again to wonder what kind of man resides inside the
skin of State's Attorney (Inquisitor) Dave Nelson. Does he really think
it's his job to prosecute a disabled man for attempting to prolong his own
life, simply because the legislature, unaware at the time of many facts
about cannabis, did not make specific provision for such an instance? Or is
he really on our side, forcing the courts (since the legislature
continually takes a pass on it) to begin to resolve this absurd issue?

Somehow, I don't believe it's the latter.