POT ACTIVISTS FACE FEDERAL HURDLE

State Law Not A Shield To U.S. Prosecution

Medical-marijuana activist Steve McWilliams believes the law is on his side
when he dispenses pot to the sick. After all, California voters in 1996
approved Proposition 215, which allows patients to grow and use marijuana
for medicinal purposes.

He may not be as protected as he thinks.

The federal law that prohibits the cultivation of marijuana supersedes
California law - and that allows the U.S. attorney in San Diego to seek
criminal charges against McWilliams.

San Diego's top federal prosecutor, Carol Lam, hasn't decided whether to
file charges in the case.

If she decides to, legal experts say, mounting a defense in federal court
would be tough. The best hope for McWilliams and other medical-marijuana
patients is that individual U.S. attorneys will decide not to charge them
in the first place.

McWilliams, whose garden was uprooted by federal agents Tuesday, is the
latest medical-marijuana patient to be weighing defense strategies. In the
past year, the federal government has raided cannabis clubs in Los Angeles
and Oakland; at least seven people have been charged.

"This is not accident," said Stephen G. Nelson, who was a federal
prosecutor in San Diego for 25 years. "Somebody in Washington, presumably
the attorney general, made the decision that we are not going to allow the
people of California to defy the law."

The medical-marijuana community is preparing for a fight in San Diego that
could have national implications.

The National Organization for the Reform of Marijuana Laws plans to offer
legal help to McWilliams, said R. Keith Stroup, a public-interest attorney
who founded the Washington D.C.-based nonprofit group in 1970. He said
three dozen California attorneys are ready to assist in the case.

"We may not be able to protect him from the powers of the federal
government, but we can damn well make sure he has a good lawyer," Stroup
said. "And we've done that."

McWilliams, 47, has spent years advocating the healing powers of marijuana.
He smokes the herb to relieve pain he suffers from a 1970s motorcycle accident.

The unemployed activist has brought marijuana plants into the San Diego
City Council chambers to accentuate his point. Yesterday, he smoked the
drug outside City Hall, where 40 or so people gathered to protest the DEA
raid on his home. San Diego police stood watch but did nothing.

McWilliams' belief that his personal garden is protected by Proposition 215
seemed to be bolstered by a state Supreme Court ruling last July that
granted medical-marijuana patients limited immunity from prosecution.

Many state and local officials support his view.

Earlier this month, California Attorney General Bill Lockyer complained
about the recent raids in a letter to U.S. Attorney General John Ashcroft
and DEA Administrator Asa Hutchinson.

"The decision to continue federal raids on medicinal-marijuana providers
when there is no evidence that the operation is actually engaged in illicit
commercial distribution is wasteful, unwise and surprisingly insensitive,"
Lockyer wrote.

San Diego attorney Patrick Dudley, who has been plotting McWilliams'
defense strategy, said the state court ruling doesn't protect Californians
from being prosecuted in federal court. An earlier U.S. Supreme Court
ruling said medical need cannot be used in a defense against marijuana
charges in federal court, no matter what state law has approved.

"Because of the way federal law is right now, it's a pretty straightforward
case for them, unfortunately," Dudley said.

'Jury nullification' One possible defense strategy would be to persuade a
jury to acquit medical-marijuana activists even if the federal government's
evidence against them is overwhelming.

This tactic, known as "jury nullification," has been used by draft dodgers
and tax protesters to argue they should be acquitted because the laws under
which they were prosecuted are misguided.

San Diego defense attorney Michael Pancer said that tactic usually fails,
because judges carefully instruct jurors to follow the law, not their hearts.

"The jurors cry and say they don't want to convict - but then they do,"
Pancer said.

Peter Nunez, a former U.S. attorney under President Reagan, said he
prosecuted several people in federal court in the late 1970s for smuggling
an extract of apricot pits known as Laetrile. Most of those defendants
tried to argue for jury nullification because some cancer patients believed
the drug helped cure the disease.

Each time, they were convicted, Nunez said.

Prosecutors have another edge in the McWilliams case, because they can
argue he continued to violate the law after they warned him that growing
and distributing marijuana was illegal.

In an unusual move, the U.S. attorney notified McWilliams in a
hand-delivered letter last Thursday that he would be prosecuted if he
continued his activities.

McWilliams said he wouldn't stop, because it was a matter of principle.
Even the knowledge that a conviction could put him in prison hasn't
deterred him. If tried and convicted of manufacturing marijuana, he could
face up to 16 months in prison.

McWilliams said he hopes the U.S. attorney's office will decide not to
prosecute him.

The federal government appears to have backed down in one high-profile case
this month. In Santa Cruz County, dozens of federal agents had seized 100
plants and arrested several members of a medical-marijuana cooperative. A
few days later, federal authorities said no charges would be filed.

"It would not be a nice, easy, clean prosecution," McWilliams said. "We've
been assured that if we stayed within these guidelines, we'll be protected."

Stephen Nelson, the former San Diego federal prosecutor who once headed the
drug division, said some jurors might view a guilty verdict as unjust.

In one of the few medical-marijuana cases prosecuted in state court in San
Diego, jurors in 1993 acquitted a La Mesa man who said he needed the drug
to ease the symptoms of AIDS. The verdict was reached before Proposition
215 allowed medical use.

"Jurors aren't stupid," said Nelson, who believes federal officials should
not press charges. "There's always a chance they would hang or acquit."

Civil complaint McWilliams and his partner, Barbara MacKenzie, have been
lining up support from activists and lawyers throughout the nation.

Gerald Uelmen, a law professor at Santa Clara University who is defending
the Santa Cruz marijuana advocates, is putting together a civil complaint
seeking an injunction to prevent the DEA from conducting further raids
until the courts resolve the conflict between state and federal laws.

"They're just engaged in hit-and-run operations, trying to close down as
many (gardens) as they can," Uelmen said of the drug agents. "They just go
in and grab the plants, the records and computers and then not engage in
any criminal prosecution."

McWilliams has received a vote of confidence from some members of a San
Diego city task force that is drawing up guidelines under which chronically
ill patients may use marijuana. McWilliams was a member of the task force
until last month, when he quit because he felt the committee was moving too
slowly.

"This is a medical issue," San Diego City Councilman George Stevens said
yesterday at a committee meeting attended by dozens of McWilliams
supporters. "People are sick. The marijuana is needed to address their
illness."

The task force recommendations are scheduled to go before a City Council
committee Oct. 16. San Diego police and drug-abuse prevention groups
disagree on some of the suggestions.

City officials estimate that between 1,500 and 3,000 people will apply for
identification as registered medical-marijuana patients. The city expects
to begin issuing the ID cards early next year.

Meanwhile, McWilliams is bracing for a knock at his door he hopes will
never come. He worries whenever helicopters pass over his rented house in
Normal Heights.

Before their house was raided this week, he and MacKenzie harvested the
useable marijuana from their garden and divided it among five clients.

"If we waited and they came, then we would lose everything," McWilliams
said. "So we just tried to help as many people as we could."