Redemption Song

DAVE HERRICK'S STRANGE ODYSSEY THROUGH THE U.S. WAR ON DRUGS

When the letter arrived, David Lee Herrick was sitting on his bunk during a
lockdown at California's Salinas Valley State Prison. He opened it, scanned
the first few pages, and decided he couldn't bear the pressure. He passed
the letter to his bunkmate. "You've been reversed, man." For a moment,
Herrick thought he had either heard wrong or was the victim of a sick
practical joke. The letter was from the California Court of Appeals and
concerned Herrick's May 1998 conviction on two counts of selling marijuana.
Herrick's alleged "customer" was a terminally ill California resident who
had a doctor's note allowing him to smoke cannabis under Proposition 215,
the medical-marijuana initiative passed into law by state voters in
November 1996.

According to the letter, a few days earlier, on Sept. 3, the appeals court
had unanimously overturned his marijuana conviction, citing prosecutorial
misconduct by a now-retired Orange County deputy district attorney named
Carl Armbrust.

For Herrick, the letter was a long-overdue get-out-of-jail-free card.
Beaming, he shouted at the nearest prison guard. "Check this out, man. I've
been reversed," he bragged. The guard glanced down at the paperwork and
then looked back at Herrick, expressionless. "So what?"

Herrick's mood was too good to start an argument. He returned to his bunk
and started packing his few belongings. The next morning, after 29 months
behind bars, he walked out the doors of the prison a free man.

But his elation didn't last long. During Herrick's imprisonment, the
medical-marijuana movement he helped found had fallen victim to the drug
war. Throughout California, judges, district attorneys, police and the
state's attorney general launched a multi-faceted legal attack on
medical-marijuana clubs, jailing members, confiscating cannabis, and
harassing doctors who took the state law at face value and prescribed
marijuana for their patients who needed it. Once-thriving clubs in LA,
Oakland and San Francisco were raided and shut down. Libertarian
gubernatorial candidate and longtime cancer sufferer Steve Kubbywho, his
doctor says, is still alive because of marijuanawas arrested near Lake
Tahoe with his wife, jailed, and driven toward bankruptcy in the subsequent
legal battle.

When Herrick left prison, he surveyed the damage and came to a conclusion:
it was time for the medical-marijuana movement to go on the offensive.
Herrick says he has a plan, one that will lead him back into the battle
over medical marijuana, a war Herrick has been fighting, in one way or
another, for most of his life.

David Herrick first emerged on the public scene days after Prop. 215
passed, when he co-founded the Orange County Cannabis Co-op with fellow
activist Marvin Chavez. Both came to the movement because of chronic pain
that qualified them to smoke marijuana under the new law. Herrick, a former
San Bernardino County sheriff's deputy, broke his back during an on-the-job
accident eight years ago; Chavez wears a back brace to combat ankylosing
spondilitis, a rare and incurable disease that has fused his bones together.

They share something else: within a year of Prop. 215's passage, Herrick
and Chavez were arrested and charged with selling marijuana by the Orange
County district attorney's office, one of the front-line players in the
state's anti-Prop. 215 blitzkrieg. Police arrested Herrick in March 1997,
after they confiscated several small bags of marijuana marked, "Not for
Sale: For Medical Purposes Only" from his Santa Ana hotel room. They also
found cannabis-club literature and a computer database that led police to
two club members, Thomas Jerry Pollard and Gregory John Hoffer.

Pollard and Hoffer told police that Herrick and Chavez had provided them
with cannabis on at least two occasions. Both men had doctor's
prescriptions for marijuana: Hoffer suffered from debilitating back pain,
and Pollard was carrying a card identifying him as the caregiver for
another man, James O'Rear, who suffered from lung cancer at the time and
has since died. The district attorney's office nonetheless charged Herrick
with four counts of selling marijuana.

It was a close case, and at times the courtroom proceedings resembled a
scene from Alice in Wonderland. During one particularly weird moment,
prosecutor Armbrust became visibly upset when O'Rear failed to answer a
subpoena to testify against Herrick. Armbrust threatened to issue a warrant
for the sick man's arrest but withdrew the threat when he learned O'Rear
was bedridden at a local hospice, dying a slow and painful death.

In court, Armbrust, a baldheaded, septuagenarian Eliot Ness, repeatedly
denounced Herrick as a "street drug dealer" cleverly trying to pass himself
off as an activist. There was no way to challenge that assertion: Santa Ana
Superior Court Judge William R. Froeberg barred Herrick's defense from
mentioning Prop. 215 during the trial. The jury had little choice but to
buy Armbrust's portrayal of the defendant.

"Do you want to know why I did 29 months in prison?" Herrick asked. "For
furnishing three-quarters of an ounce of marijuana to man who had a
doctor's written recommendation and was dying of terminal lung cancer."

It's possible to argue that Herrick's interest in the medical uses of
marijuana began two decades before he was injured, when he was a U.S. Army
combat medic serving in the central highlands of Vietnam. Born in 1950 in
Key West, Florida, Herrick was raised all over the country, the son of a
U.S. Navy employee. While still teenagers, he and his best friend, Wesley
Kerr, worked for a volunteer ambulance corps in Brooklyn, New York. When
the pair turned 18 in 1968, they enlisted in the U.S. Army Medical Corps
through the buddy system. While Herrick was still in basic training, Kerr
was shipped off to Vietnam and assigned to work on a medevac chopper, where
he helped ferry wounded troops from the battlefield to the nearest base camp.

"He was shot down and killed six months after he got there," Herrick recalled.

On April 1, 1969, Herrick arrived in Vietnam, assigned to the 5th Battalion
of the 1st Air Cavalry Divisionwhose exploits were fictionalized by Francis
Ford Coppola in Apocalypse Now.

"There were 160 guys in Charlie Company," Herrick said. "We weren't like
the Marines. We were out in the field all the time. We stayed out. We had
observation posts and listening posts and all that other happy horseshit."

In 1969, daily life in a 1st Air Cavalry infantry company was at best a
tiresome trek through a mosquito-infested, humid jungle and, at worst, a
major encounter with a well-armed and highly disciplined enemy. Given the
uncertainties, every venture into the bush brought with it a mind-boggling
mixture of mortal anxiety, sheer exhaustion and sometimes death.

"Firefights are like earthquakes," Herrick said. "They're either going to
be long and turn into a battle, or they'll be short. They're unpredictable."

Herrick's first happened near the South Vietnamese village of Quan Loi. "We
were backing [famed Indian fighter General George] Custer's old battalion,
and we had to bust ass to get to where they were. It was one of those
do-or-die situations, and we were up against North Vietnamese regulars.

"I took six wounded and three dead in my company that day," said Herrick.
"Most of those were from mortars. They had us pretty well-pinned. You get
into these situations where you're in the woods and you have no idea where
the hell you are. You're at the mercy of the terrain."

Later that year, Herrick participated in a gruesome military campaign in
the A Shau Valley, where the 101st Airborne lost dozens of soldiers in an
assault on a remote peak that became known as Hamburger Hill. "We came in
on the ass-end of that one," Herrick recalled. "When we got there, the
soldiers were sitting around ready to shoot their officers, and I didn't
blame them. When they finally got on top of that hill, they just turned
around and left."

Not surprisingly, many American soldiers turned to drugs to alleviate the
pressure of fighting a war that had no front lines against an enemy often
indistinguishable from innocent bystanders. "You didn't know who your enemy
was," Herrick said, "and you didn't care to meet the enemy.

"After you get in combat and actually get a kill to your name, it takes its
toll psychologically," Herrick continued. "But the more people you kill,
the more they reward you with medals and decorations and pump you up. So
you begin to realize that this is all bullshit. Guys are dying, losing
legs, and everyone is getting hooked on heroin."

The drug problem in Herrick's company was so intense that when Herrick
tried to treat wounded soldiers in the wake of a firefight, he frequently
found himself short of morphine. "The junkies in my company would raid my
morphine whenever they couldn't get their heroin," Herrick explained. "No
matter where I put itin my aid bag or in the front pocket of my fatigues or
even if I tried to bury it in the bottom of the rucksackit'd always end up
gone."

Without morphine, Herrick says, he turned to marijuana to medicate the
wounded. About a month after he arrived in Vietnam, Herrick's company was
patrolling a rubber plantation outside Tay Ninh when it took small-arms
fire from what turned out to be a band of Viet Cong. As the crackle of
gunfire sounded in the distance, a soldier who had been in-country for only
four days fell to the ground, shot through the shoulder.

"This kid was 18 years old and scared shitless," said Herrick. "He was
sobbing like a banshee. I had no morphine. So I went over to a guy I knew
who had just scored and grabbed two joints and gave them to the kid. He
fired one up." Herrick moved on to treat the other more badly wounded. Five
minutes later, he returned to the kid, "and he was lying against a tree,
joking like it was no big thing."

Herrick said the firefight at Tay Ninh convinced him of marijuana's value
as a painkiller and anxiety-suppressantat least in post-combat situations
in which morphine was not available. "I made it a habit from that point on
to always dispense marijuana," Herrick said. "I bought it with my own
money. Whenever someone got shot, came out of shock and started to feel the
pain, he'd usually start screaming. I would hand him a joint. Usually, he'd
smoke it. If you got shot and weren't a smoker, you either became one or
just shined it and lived with the pain."

The medical uses of marijuana were just as controversial then as now.
Herrick's captain, a Special Forces-trained career officer, opposed any
marijuana smoking by his soldiers in the field because the odor might
attract the enemy. Herrick argued that a wounded infantryman who was
hysterical and screaming his lungs out posed a much greater risk to his
comrades than a stoned grunt who shut up and stayed out of the way.

"For the most part, that's exactly what marijuana did," said Herrick.
"After smoking a joint, they were quiet. They'd sit there, or if they could
get up, they would help prepare for the medevac. When the chopper came,
they would help me load more seriously wounded grunts into the bird and
ride back to the hospital without having to be restrained." Herrick and his
commanding officer "bucked horns for 20 minutes, and then he shut up,"
Herrick said.

Unfortunately, there were always more seriously wounded grunts to attend
to, soldiers with injuries so grave they would die without immediate
surgery. Marijuana was of little or no use to them. But there were
exceptions even to this rule. One involved a soldier in Herrick's company
who was hit by a "willy-peter," a white phosphorus round that continues
burning after impact.

"His whole intestinal area, stomach, and parts of his pancreas and spleen
were exposed," Herrick recalled. "I couldn't give him morphine because it
was a stomach wound. But once I got him all bandaged up and was able to
completely cover up his vital organs, he asked for a joint because he saw
that one of the other wounded grunts was smoking one." The marijuana didn't
save the grunt's life, according to Herrick, but it didn't kill him,
either. "It was a miracle that he didn't die right there," he said. "But he
made it; he survived the war."

It's laughable to consider law enforcement's contention that David Herrick
is indistinguishable from "a street dealer." In fact, Herrick had no
criminal record before 1996the year Prop. 215 became lawwhen he was
arrested in San Bernardino for marijuana possession. By 1970, his resume
already included military service and would go on to boast hospital work,
animal rescues and a 15-year career as a cop.

After volunteering for service in Vietnam, Herrick worked at an Army
hospital in Fort Meade, Maryland. There, he says, he worked at a secret
wing of the hospital: Ward 2C, home to the Army's junkies and alcoholics.

Inside Ward 2C, Herrick learned the art of working with addicts. "It's the
same thing we see in prisons today," Herrick argued. "People who are
getting out of jail are still addicted, so the first thing they do when
they leave prison is find their dealer. Then they're right back behind bars
for violating parole. It's a revolving door."

After his honorable discharge, Herrick took a job as an inhalation
therapist at Pomona Valley Community Hospital, studied emergency medicine
at what was then Chapman College, and worked for Schaeffer Ambulance
service. In 1975, he saw a help-wanted poster for an animal-control officer
in Barstow. Herrick took the job.

Part of his duties required him to run supplies from the San Bernardino
County Sheriff's headquarters in San Bernardino to the Barstow Sheriff's
station. After three years of faithful deliveries, the captain of the
Barstow station suddenly asked Herrick if he had any desire to be a
sheriff's deputy. Herrick said he wasn't really interested but agreed to do
a few ride-alongs. He was soon a full-time deputy.

From 1978 to 1991, Herrick wore the badge and uniform of a San Bernardino
County sheriff's deputy, first at the Glen Helen Rehabilitation Center,
then at the county jail, and finally as a patrol deputy in Barstow and
Victorville. But his 15-year career in law enforcement ended in a medical
retirement when he was run over by his own car during a routine traffic
stop. "As I was getting out of the car, it shifted from park into reverse,
caught my leg, and pulled me under," Herrick explained. "It took out my
disk and herniated it so bad that it was irreparable."

hus began Herrick's painful, years-long metamorphosis into a
medical-marijuana activist.

After surgery, Herrick spent three months in bed. "I took all the
conventional medicationsVicodin, Percodan and codeine," Herrick said. "I
was becoming chemically dependent on those pills. I had no desire to stop
taking them. When I found myself eating Vicodin like M&Ms, I had to get out."

Herrick's neurologist told him that if it were legal to do so, he'd gladly
write a different prescriptionone for medical marijuana.

By this time, Herrick's career had taken a bizarre turn. Unable to work as
a patrol deputy, Herrick accepted a friend's offer to work in a head shop
in Hesperia. When his friend moved away, Herrick bought the business. His
new joband his bad backexposed him to the growing movement of disabled and
sick Californians collecting signatures for the state ballot initiative
that would ultimately become Prop. 215.

"The cops harassed the piss out of me," Herrick remembered. "I started
gathering petition signatures at the shop. I got to know guys at the Orange
County Hemp Council, and that's where I met Marvin Chavez."

The rise and demise of the Orange County Cannabis Co-op began in November
1996, just days after the passage of Prop. 215, when Herrick and Chavez
co-founded the organization. Their mission: to provide medical marijuana to
the club's handful of members, all of whom had a doctor's note recommending
cannabis. That ended in mere months, when Herrick and then Chavez were
arrested for selling marijuana.

Armbrust, like other law-enforcement officials around the state, saw a
loophole in Prop. 215: while the law allows sick people to buy medical
marijuana with a doctor's permission, it doesn't allow anyone to sell itor
even give it away.

In court, Armbrust exploited that fuzziness. He charged that Herrick and
Chavez were nothing more than sophisticated street dealers. If so, the pair
had unusual habits. Believing they were operating under the protective
umbrella of the new law, they made no attempt to mask their efforts to get
marijuana into the hands of those with a doctor's permission. They
publicized their group's activities in letters to the Times, The Orange
County Register and the OC Weekly. They invited law-enforcement and city
officials to speak to their group on the subject of Prop. 215. They
demandedand received written doctors' notes before dispensing marijuana.
They kept a strict accounting of the money they received in the form of
donations; in several cases, they simply gave the marijuana away.

But none of that mattered when Froeberg denied Herrick the right even to
refer to Prop. 215 in his defense. In July 1998, the jury convicted him of
two counts of selling marijuana but cleared him of the two remaining sales
counts.

Herrick was transferred from the pristine confines of the brand-new Santa
Ana Jail, where he had sat out the trial, to Wasco State Prison in the high
desert of San Bernardino County. A few days later, he was placed in
protective custody. To the rest of the inmates at Wasco, that meant just
one of two things: Herrick was either a cop or a child molester. Since few
cops end up behind bars, most inmates were betting on the latter. Herrick
claims the Nazi Lowriders prison gang put a hit on his life. The gang only
backed off after it realized that Herrick wasn't in the hole for molesting
children but for selling marijuana.

"That was pretty frightening," said Herrick. "They never found out I used
to be a cop."

Several months later, Herrick was transferred to Salinas Valley State
Prison, where he was put in an open dormitory with 200 other inmates.
"Anyone could hit whoever they wanted," he said. "There were articles
coming out saying that I had been a cop. So I was very vulnerable."

After his arrest, Herrick urged Chavez to lay lowto drop the aggressive,
high-profile distribution of marijuana and wait for the courts to clear up
the legal confusion surrounding Prop. 215. Chavez refused and continued
dispensing medical marijuana to members of the co-op. Then Chavez went even
further, announcing the formation of a new medical-marijuana organization
with the unwieldy handle "Orange County Patient/Doctor/Nurse Support Group."

Before Herrick's trial even started, police arrested Chavez in January 1998
on the same charges. A judge released Chavez a few days later with the
admonition that he cease distributing marijuana through the co-op. Chavez
still refused to stop. Along with Jack Schacter, a terminally ill friend,
he continued to provide bags of medical marijuana to anyone with a doctor's
note. In July 1998, the same month Herrick was sentenced, Chavez was
arrested again, this time for selling two bags of marijuana to a pair of
undercover narcotics detectives. Police also charged him with a federal
crime: mailing marijuana to a co-op member in Bakersfield. In November
1998, Chavez was convicted and sentenced to six years in state prison. (He
is currently serving out that sentence at the Susanville State Prison near
Sacramento and was unable to be interviewed for this story because of a
California Department of Corrections policy that virtually prohibits
reporters from conducting telephone interviews with inmates. Armbrust
failed to respond to interview requests for this story.)

It would be wrong to read Herrick's release from prison as a victory for
Prop. 215. In fact, if anything, his successful appeal reveals something
quite differentand rather ugly about the way in which "justice" was carried
out in Herrick's trial. The court's decision to reverse Herrick's
conviction centered on several slips of paper confiscated from Herrick's
Santa Ana hotel room at the time of his arrest. They detailed how Herrick
and Chavez had provided marijuana to members of the co-op in return for
voluntary donationsevidence that might confuse a jury being asked to find
Herrick and Chavez guilty of being garden-variety drug dealers. At the
beginning of the trial, Armbrust succeeded in petitioning Froeberg to rule
the donation slips inadmissible. But during closing arguments, Armbrust
told the jury that Herrick's attorneys could have entered the missing
donation slips as evidence if they had wanted toa statement that was
clearly false, since Armbrust himself had prevented the defense from doing
so. Adding insult to injury, Froeberg failed to admonish Armbrust for
misleading the jury at the most crucial point in the trial. In its
unanimous ruling, the three-judge panel that reversed Herrick's conviction
said Froeberg lent "tacit judicial approval to the prosecutor's falsehood,"
something that "cannot be dismissed as harmless."

Keeping a stiff upper lip, the district attorney's office says it won't
appeal Herrick's recent reversal. "We found that there would be no
practical value in retrying this case," said Tori Richards, the DA's
spokeswoman. "Mr. Herrick has already spent as much time in prison as he
would receive if he were convicted again."

Herrick is still fuming. "Armbrust has retired, but Judge Froeberg is still
on the bench," he exclaimed, shaking his head in disgust. "Judges are
supposed to be impartial. His days as a judge are numbered, in my opinion."

Herrick's rage is fueling a new ambition: to wreak havoc on law-enforcement
officials who continue to go after legal Prop. 215 marijuana smokers by
arresting them, confiscating their marijuana or ripping up their plants.

"We have to go on the offensive," Herrick said. "If you sue the police and
take money away from them, they'll stop what they're doing. They don't put
in their budget that 1,500 Prop. 215 smokers will sue their department for
false arrest or confiscation of property. From my 15 years of experience
working in law enforcement, I think the police will probably back off
because that's in their best interest."

Herrick pointed out that there are already two California Supreme Court
decisions that have ordered police to return marijuana to people carrying
doctor's notes permitting them to grow and smoke cannabis. With that in
mind, Herrick wants to establish a legal-defense fund for Prop. 215 smokers
in California, something he hopes will pick up the battle where the
vanquished Orange County Cannabis Co-op left off. "We need a cohesive
group, whatever it is," Herrick said. "If we don't have one solid
organization, this whole movement will go right down the tubes."