MEDICAL POT WINS IN COURT - NEED FOR TREATMENT RULED VALID DEFENSE

SAN FRANCISCO -- Removing a major stumbling block to California's
legalization of medicinal marijuana, a federal appeals court ruled
Monday that "medical necessity" can be a viable defense for people
accused of breaking federal pot laws. The decision, by the 9th U.S.
Circuit Court of Appeals, ordered U.S. District Judge Charles Breyer
to reconsider his 1998 injunction against the 1,500-member Oakland
Cannabis Buyers' Cooperative.

Breyer must weigh whether the "public interest"
would be served by making marijuana available to seriously
ill people whose only choices are to suffer or break the law, said the
appeals court. The unanimous three-judge panel strongly suggested that
the public interest requires some leeway for medical marijuana use --
particularly in Oakland, where the city declared a "public health
emergency" in response to Breyer's injunction.

But victorious defense lawyers said the decision
had much broader implications and would
apply equally in prosecutions of individuals under the federal
Controlled Substances Act. The appeals court repudiated the view of
the U.S. Department of Justice that the statute amounted to a flat ban
on marijuana based on a congressional finding that the drug has no
medicinal value and a high potential for abuse.

The department had no immediate comment
on the ruling, which is binding in all federal
courts in the nine Western states. In five of those states --
California, Alaska, Oregon, Washington and Arizona -- state laws
shield medicinal pot users to one degree or another from prosecution
by state or local authorities.

Nevada also has passed a medicinal pot law that
will go before the voters for final approval in November
2000. In California the state law is Proposition 215 of 1996,
legalizing marijuana for people with medical authorization to use it.
Proposition 215, requiring only a doctor's recommendation, is a more
lenient defense than "medical necessity."

State Attorney General Bill Lockyer has
deferred to local prosecutors in enforcing the state law,
and Lockyer spokesman Nathan Barankin said the 9th Circuit ruling
would have no effect on prosecutions in the state courts. But
Proposition 215 carries no weight in federal prosecutions, and the
federal government has maintained that there is no workable way to
implement Proposition 215 because prescribing pot violates the federal
law.

Americans for Medical Rights, which sponsored the initiatives in
California and several other states, hailed the 9th Circuit ruling as
a possible "first step in overcoming the conflict between state and
federal laws." In the three years since passage of Proposition 215,
federal prosecutors have moved to shut down pot cooperatives
throughout Northern California and have continued prosecuting growers.

Defense lawyer Thomas Ballanco said the 9th Circuit ruling was
particularly encouraging for Vietnam veteran B.E. Smith, the defendant
in the first of the prosecutions that went to trial against someone
claiming to be a patient and caregiver since passage of Proposition
215.

The Trinity County man was convicted in federal court in
Sacramento of possessing and cultivating marijuana despite a diagnosis
of post traumatic stress disorder and a doctor's prescription. U.S.
District Judge Garland E. Burrell Jr. barred Ballanco from presenting
a medical necessity defense to Smith's jury, saying there was no such
defense in federal court.

The case goes next to the 9th Circuit. On
Monday, however, Burrell denied Smith's release while the appeal is
pending. He said Smith's medical necessity defense was precluded by
his failure to petition Congress to change the federal law.

Zenia Gilg, who represents Bryan James Epis in another federal
prosecution in Sacramento, said she expected the 9th Circuit decision
to be the death knell of that case. Defense motions for Epis, the
moving force behind a club called the Chico Medical Marijuana
Caregivers, are set for hearing in two weeks. Gilg, who works with
defense lawyer J. Tony Serra, said the Serra firm also will move to
withdraw a guilty plea by an elderly couple in another medical
marijuana case in the federal court in Sacramento.

They pleaded guilty only because the firm
doubted it would be permitted to make a medical
necessity defense, she said. Jeffrey Jones, an Oakland co-op official
who was named as a defendant in the case decided Monday, said his
organization's legal status would not change before Breyer rules
again.

Since the May 1998 injunction the co-op has been operating as a
hemp store and has continued validating patients -- 1,500 to date --
who it says are eligible to buy marijuana under Proposition 215.

Santa Clara University law professor Gerald Uelmen, one of the Oakland
cooperative's lawyers, said the likely effect of the decision on the
cooperatives will be to allow the dispensing of marijuana "to the most
seriously ill patients -- the cancer patients, the AIDS patients,
glaucoma perhaps. But I think what a lot of people don't realize is
(that) those patients were a substantial percentage of the clientele
that the clubs were serving."

In sending the case back to Breyer, the 9th Circuit suggested that he
should exempt "a large group of seriously ill individuals."

The Oakland cooperative "has identified a strong public interest in
the availability of a doctor-prescribed treatment that would help
ameliorate the condition and relieve the pain and suffering of a large
group of persons with serious or fatal illnesses," the appeals court
said. The 9th Circuit did not spell out what procedure Breyer should
follow in defining the scope of an exemption.