PATIENT'S POT PLEA MEETS SKEPTICISM

Judges' Questions Hint They Won't Protect Medicinal Use.

PASADENA - A frail medicinal pot user from Oakland took the federal
government to court again Monday but left with little encouragement.

Judges of the 9th U.S. Circuit Court of Appeals, who had ruled in
favor of Angel Raich in an earlier phase of the same case, sounded
skeptical this time.

They questioned repeatedly why she was seeking their protection when
she's never been prosecuted for using marijuana, which her doctor
swears she needs to stay alive.

The judges suggested that the appropriate way to assert her legal
rights would be to raise a defense of medical necessity after being
charged with a crime - a situation that a government lawyer called
"incredibly unlikely."

"The federal government always has focused on large-scale
distributors and growers," said Assistant U.S. Attorney Mark
Quinlivan, who argued the case against Raich's request for an injunction.

He said he knew of no federal marijuana prosecutions based solely on
personal possession.

Raich, now 40, was the plaintiff in last year's U.S. Supreme Court
case concerning the power of the federal government to regulate
marijuana within the borders of states that permit medicinal use.
After winning a 2-1 decision from the 9th Circuit, she lost the
states' rights argument 6-3 in the Supreme Court.

But other issues raised in her case remain unresolved, including the
"medical necessity" doctrine as it applies to medicinal pot users and
a closely related argument that the Constitution gives people a
fundamental right to make their own "life-shaping" decisions.

Raich, who suffers from multiple ailments, including an inoperable
brain tumor, has a sworn statement from her doctor that without pot,
she'll suffer greatly and die of starvation.

Her lawyer, Boston University law professor Randy Barnett, asked the
judges to recognize a right to use medicinal pot only for his client
and those like her, people "who will die if they don't get cannabis"
because other drugs fail to control deadly conditions - the nausea
associated with chemotherapy or the wasting syndrome associated with
AIDS, for example.

The government could require proof, he said.

"It seems to me this would be a regulatory nightmare," said C. Arlen
Beam, a visiting 8th Circuit judge who was assigned to the case.

"How would you narrow the use of this?" asked Judge Harry Pregerson
of Woodland Hills. "There are a lot of prescriptions out there.
Things get abused."

Judge Richard Paez of Pasadena asked whether Barnett's argument would
"fit more comfortably in the context of a criminal prosecution."

Barnett, however, said prosecution isn't Raich's only worry. A more
likely scenario is that federal agents will confiscate her pot supply
without prosecuting her. That has been the pattern in federal
anti-pot enforcement in California in recent years.

"Seizure is tantamount to a death sentence," Barnett argued.

Although judges' questions during oral arguments are not a reliable
indication of the way they will rule, Barnett seemed to fare no
better with his claim that Raich has a fundamental right to use a
drug that isn't overwhelmingly accepted as beneficial.

Beam asked how the right could be fundamental when there's still a
substantial argument.

Quinlivan argued that a minority of states aren't enough to create a
fundamental right.

Eleven states, including seven in the 9th Circuit, have functioning
medicinal marijuana laws. All of them operate in tension with the
federal government's near-absolute ban on pot.

The Supreme Court has ruled twice against different attempts to place
pot on firmer legal footing, both times overturning the 9th Circuit.
But in 2003 it let stand a 9th Circuit decision barring federal
sanctions against doctors who recommend pot to their patients under
the California law.