MEDICAL POT BACKERS TARGET MARIN DA:

A Cannabis Club Is Pushing For Recall Tuesday Because Seized Weed Is Not
Returned.

SAN RAFAEL -- At first glance, Paula Kamena would seem to be a friend of
medical marijuana supporters.

As the district attorney of pot-friendly Marin County, she established
guidelines that shy away from prosecutions of people who grow or possess
sizeable amounts of the illegal drug for use as a treatment for
illnesses such as cancer or AIDS.

But, with medical marijuana advocates leading the charge, Kamena faces a
serious effort to oust her from office in a recall election Tuesday. Her
detractors say she essentially is undermining California's medical
marijuana law, Proposition 215, by condoning the arrests of cannabis
patients who ultimately are not prosecuted but whose pot is confiscated
nevertheless.

"That's a terrible thing to do to patients," said the Rev. Lynnette
Shaw, Kamena's chief antagonist and the operator of the Marin Alliance
for Medical Marijuana, a cannabis club in the county.

"That means that (Proposition) 215 is subverted in every instance,
because no matter what, the plants are dead and they lose their
marijuana."

The seizures led to a spike in her sales, Shaw added, fed by patients
whose supplies had been hauled away.

But Kamena says she cannot force the police to return marijuana in cases
that are not prosecuted, even if 73 percent of Marin voters endorsed
Proposition 215, the second-highest percentage in the state. Of
particular concern, she said, is that federal law does not recognize the
legality of marijuana for medicinal use.

"People think the DA is in charge of everything," she said. "Law
enforcement, they're the ones on the street. They're the ones that have
to make the judgment call."

Just last week, the U.S. Supreme Court barred cannabis distributors such
as Shaw from using a medical necessity defense to shield themselves from
prosecution on federal marijuana charges.

Proposition 215 remains in effect, though, granting users with
legitimate medical needs a legal defense if they are prosecuted in state
courts.

Kamena describes her policy on medical marijuana as one of the most
progressive in the state.

In cases where a person possesses no more than 12 immature and six
mature marijuana plants, a half-pound of dry cannabis and legitimate
evidence of medicinal need, and if there is no indication of illegal
sales, "you can be kinda darn sure that we will not prosecute," she
said.

Out of 815 criminal cases involving marijuana that were filed in Marin
from 1998 through 2000, 73 defendants employed the medical marijuana
defense, Kamena said. Charges against half of those defendants were
dropped after a legitimate medical need was established. Most of the
other half pleaded guilty and one went to trial, she added.

"I don't think we have ever gotten a case from police where someone had
AIDS or cancer," said Kamena, who was first elected in 1998. "The kind
of cases we (pursued) was the person who had an arthritic knee and
wanted to ski better ... or a longtime junkie."

The problem in Marin County, Shaw and her allies charge, is that in
those cases where an arrest occurred but there is no prosecution, the
marijuana of sick people almost never was returned. Kamena, therefore,
should pressure local police to give it back, they say.

"There's an oversight responsibility on the part of the district
attorney and City Council to rein in police practices that are
illegal," said Jay Cavanaugh, head of the American Medical Marijuana
Association.

If they win the recall election against Kamena, medical marijuana
proponents are likely to train their sights on other top county
prosecutors around the state, most notably Placer County's Bradford
Fenocchio.

Fenocchio angered medical marijuana advocates with his prosecution of
the 1998 Libertarian Party candidate for governor, Steve Kubby. Kubby's
case ended in March when a judge dismissed pot possession and
cultivation counts against him, saying he needed the marijuana to treat
a rare form of cancer.

While the recall campaign against Kamena clearly is being organized now
by medical marijuana advocates, it grew out of a Sonoma County woman's
custody battle. Carol Mardeusz fought for several years to gain custody
of her daughter from the girl's father through courts in a number of
counties, including Marin.

When that proved unsuccessful, she and supporters began recall efforts
last year against, first, judges who had overseen her case, and then
against Kamena.

The petition against Kamena accused her of failing to prosecute persons
involved in Mardeusz's custody case, as well as a county supervisor who
ran up thousands of dollars in personal purchases on her county credit
card. It made no mention of marijuana, medicinal or otherwise.

The petition signature-gathering effort was faltering when Shaw and her
allies joined, pumping in almost $10,000 to hire signature gatherers
who collected far more than the necessary 14,000 names.

Since then, Kamena has labeled her foes obliquely as drug dealers and,
more explicitly, as "thuggish." She also has pummeled her lone
opponent, Tom Van Zandt, calling him unqualified for the district
attorney's job because he has been a lawyer for only three years and his
specialty is patent law.

Van Zandt, who did not respond to requests for an interview, is
Mardeusz's brother.

Kamena's critics have returned the favor, charging she has done
backflips to aid the politically powerful. At a recent debate, Van Zandt
cited Kamena's decision not to prosecute state Supreme Court Justice
Joyce Kennard after she was arrested in 1999 near Sausalito on suspicion
of drunken driving. Kennard's blood alcohol level was below the legal
limit, Kamena has said.

If Kamena is recalled, Van Zandt needs only one vote to replace her.