HEAD AGAINST HEART IN POT CASE

Supreme Court Reviews Local Law

There's a scene in the 1942 film "The Talk of the Town" in which a fugitive
framed for murder, played by Cary Grant, chides a law professor (Ronald
Colman) for reducing the law to a set of rules and facts.

"People wind facts around each other like a pretzel," says Grant's
character, Leopold Dilg. "Where's the soul, where's the instinct, where's
the warm human side? ...Your way, you have a Greek statue, beautiful but dead."

It's available on video. U.S. Supreme Court Justice Stephen Breyer might
want to check it out.

The court's hearing on medical marijuana on Nov. 29, a case about whether
federal drug laws can be enforced against locally grown pot supplied to
patients without charge, was the first I'd ever attended. So I was probably
among the few reporters dumbfounded to hear Breyer deliver an obviously
well-prepared lecture to the lawyer for two Northern California women who
sued to be safe from federal prosecution.

In urbane tones, the justice, a San Francisco native, said he'd reviewed
all the paperwork in the case and still wasn't sure whether marijuana had
any medical value. Rather than going to court, he said, people like these
two women, who have strong views, might have asked the U.S. Food and Drug
Administration to answer the question once and for all.

"That would seem to be the obvious way to get what they want," Breyer said.
Then the punch line: "Medicine by regulation is better than medicine by
referendum."

The women's lawyer, Randy Barnett, replied that the government had a long
record of obstruction on the issue. In fact, as Breyer and everyone else in
the courtroom knew, the FDA, part of an administration committed to the war
on drugs under both Democrats and Republicans, isn't about to reclassify
marijuana as medicine.

As if to drive the point home, less than two weeks after the court hearing,
the agency rejected a proposal, which it had been considering since
mid-2001, to let the University of Massachusetts grow marijuana for medical
research.

Barnett might have also noted that "medicine by regulation" has
traditionally been left to the states and that California regulates the
doctors who recommend marijuana under Proposition 215, the initiative
approved by voters in 1996.

But on its face, Breyer's position didn't seem unreasonable. The FDA,
despite recent blots on its record, presumably knows more about drugs than
judges or voters do.

On the other hand, consider how his words must have sounded to one member
of the audience, plaintiff Angel Raich.

Partially paralyzed, needing a wheelchair and in constant pain from a
nightmarish assortment of internal disorders, spinal and pelvic conditions,
a wasting syndrome and an inoperable brain tumor, Raich turned to marijuana
as a last resort in 1997 and found relief. Now an advocate for other
patients in Oakland, she consumes the drug every two waking hours and,
according to both Raich and her doctor, would starve to death in agony if
deprived of it.

As Raich commented after the hearing, Breyer's advice amounted to a death
sentence.

Not that she plans to accept it -- she's made it clear that she'll leave
the country if she loses the ruling, due by the end of June -- but as far
as she's concerned, it's a little late in the day to be told to go through
channels.

Still, hard cases make bad law, as they say, and justices whose decisions
affect millions are supposed to look beyond particular circumstances and
seek broad principles that are faithful to legal precedent. The results,
courts often observe, may seem harsh in an individual case but serve
justice, or at least the rule of law, in the aggregate.

But as Cary Grant's character might argue, a lot depends on whether you're
on the giving or the receiving end of the court's view of justice. Consider
Roger Coleman, a Virginia Death Row inmate whose state appeal of his death
sentence was dismissed because his lawyer missed a filing deadline by three
days.

In 1991, the Supreme Court refused to consider Coleman's federal court
appeal. Justice Sandra Day O'Connor's opinion began with the words, "This
is a case about federalism" -- that is, the federal system's deference to
state courts' procedures for their criminal cases.

Coleman, no doubt, had a different view of what the case was about. He went
to his death eight months later, despite claims of innocence by his
supporters that continue to this day. The state of Virginia is still
fighting a request for DNA testing of some of the evidence.

Once in a while, a justice -- the late Harry Blackmun comes to mind --
seems to look at the world through Leopold Dilg's eyes.

In 1989, the court refused to let a mother sue the county whose social
workers had ignored danger signs and allowed her 4-year-old son to remain
with his father, who beat him into a coma. A six-member majority reasoned
that the county had no duty to protect a child who wasn't in its custody.

"Poor Joshua!" lamented Blackmun in a dissenting opinion, urging a
constitutional interpretation that "recognizes that compassion need not be
exiled from the province of judging."

Breyer is not given to such passionate outcries, but he's not known to be
hard-hearted, and he would surely deny any intent to be insensitive to the
marijuana plaintiffs.

The main legal issue in their case, after all, is not the effectiveness of
either medical marijuana or the FDA, but whether the federal government has
the constitutional power to prohibit a drug that was neither sold nor
transported across state lines.

Breyer's position, which he has expressed in earlier cases and made clear
at the November hearing, is that the government must have broad regulatory
authority to protect public health and safety, even within a state's
borders. This might upset marijuana patients and advocates but arguably
would serve larger public interests.

Perhaps Breyer's suggestion about the FDA was a gentle hint to the
plaintiffs not to pin their hopes on the courts.

Still, even Supreme Court justices might occasionally take note of the
little people who get caught in the path of the law.

In the climactic scene of "The Talk of the Town," Ronald Colman holds off a
lynch mob, then delivers a courtroom oration on the need to harmonize legal
rules and human concerns. As wrong as it is to trample over the law, he
tells the mob, it is equally wrong "to look upon the law as just a set of
principles, just so much language printed on fine heavy paper. ...The law
must be engraved in our hearts and practiced every minute, to the letter
and the spirit."

As the film closes, Colman's character has just been seated on the Supreme
Court. Now that's a Hollywood ending.