STAKES HIGH IN MAN'S MARIJUANA CASE

He Says Using The Drug Helps With His Multiple Sclerosis. His Trial On
Charges Of Cultivating The Drug Could Set A Precedent

Joe Merrion battled a mysterious, stinging sensation in his back for more
than a decade.

Last year, after he lost some muscular control in his legs, a neurologist
determined he had multiple sclerosis. Merrion would likely be bedridden in
three years and dead in six -- 10 at the most.

The prognosis was too much for Merrion. He made four suicide attempts in
six weeks. On the last one on New Year's Day, the responding officer made a
discovery -- four pots filled with 58 small marijuana plants in the corner
of Merrion's Hernando County apartment.

Merrion, 34, said he turned to the illegal drug when traditional remedies
didn't relieve the increasing pain, nausea and muscle spasms. What he
called a "miracle drug" landed him in jail on a felony charge of
cultivation of marijuana.

"I'm going to die," he said. "Now the government wants to ensure that I die
in pain."

At his upcoming trial, Merrion intends to fight the charge with a scarcely
used defense already established in Florida case law: medical necessity.
It's a legal maneuver made possible when the Florida Supreme Court refused
to strike it down in June. The defense seemingly contradicts Florida
statutes, which forbid the growing and possession of marijuana.

Merrion and others in the state's struggling pro-marijuana movement want to
see Florida legalize the drug for medical use, as California and a few
other states have done. Short of that, they said they should be allowed to
use the medical necessity argument to defend their drug use in front of a
jury. They hope Merrion's case leads the way for others to follow.

Their views are not without controversy or strong opposition.

Florida's legislators have balked in recent years at legalizing marijuana
for any purpose, and some are now vowing to close what they call a
dangerous loophole.

James McDonough, the retired Army colonel Gov. Jeb Bush appointed this year
as the state's drug czar, said a lot more research needs to be completed to
convince him that marijuana has any significant medical benefits.

"Right now, it's like folklore or witchcraft," he said. "How can you defend
a drug charge based on that?"

Merrion didn't intend to become a marijuana user. He often says that he
"wasn't raised troubled." He was a starting fullback on the Hernando High
School football team. He drank beer, like many of his underaged buddies,
but he didn't do drugs, he said.

After getting a diploma, he enlisted in the Navy and worked as a radio man
with high-level clearance for two years. With the clearance came random
drug tests every few months. He said he passed those tests every time.

After an honorable discharge in 1985, he returned to Publix, where he
worked in high school. Merrion cut meat for the grocery chain, a lucrative
job for someone without a college degree. He bought a Mercedes. Life was good.

In the late 1980s, the stinging started in his legs. He found it hard to do
his job. He went to doctors. He wore support stockings. He stretched and
strengthened. Nothing worked.

In 1996, he tried smoking marijuana. The drug helped him relax and control
the increasing pain and spasms. It also restored his diminishing appetite.

But the drug cost him his job in 1997 when he failed two random drug tests.
Eighteen months later, he found out he had multiple sclerosis and was
deteriorating quickly. Then came the drug bust in January.

"I need marijuana to function," said Merrion, who has one conviction on his
Florida criminal record, for DUI in 1987. "It's not like I'm having a party
on this stuff. I do it to make life tolerable. That's what I want to
explain to a jury."

Fifteen years ago, Merrion likely would not have had that chance.

Cannabis, marijuana's Latin name, was widely prescribed in the United
States for pain relief until 1937, when it became illegal. It was not until
the late 1980s that Florida's courts began to establish the state's medical
necessity defense in cases involving marijuana possession and cultivation.

A Florida appellate court ruling in 1991 further opened the door for
defendants to use the medical necessity defense against prosecution if they
met certain criteria. The ailment could not be intentionally self-inflicted
and the same medical benefits could not be obtained using a legal
alternative. Finally, the benefits had to outweigh the heinousness of using
an illegal drug.

The defense does not apply to people who buy and sell marijuana, just
people who possess or cultivate the drug.

In 1993, legislators changed the state drug statutes to prevent any further
use of the medical necessity defense in marijuana cases, or so they
thought. Despite the changes, the courts again ruled that the defense was
viable.

Broward County activist Elvy Musikka has used marijuana for 23 years to
help fight the eye disease glaucoma. She is one of only about a half dozen
people in the country who the federal government supplies with marijuana.
The government closed the program to new patients in 1992.

Musikka is helping collect petition signatures to get a question on the
2000 ballot that will ask Florida voters if they want marijuana legalized
for medical use. She thinks cases like Merrion's will help bolster their cause.

"The courts seem to be on our side," she said. "Now we need to persuade our
elected officials."

If history is any indication, that won't happen soon.

The Legislature has repeatedly turned away attempts to legalize marijuana,
and Bush said in January that fighting the drug war was one of his highest
priorities.

"We don't want to do anything that would increase drug use or send a signal
to the youth of the state that marijuana use is okay," McDonough said.

Michael Halkitis, division director in New Port Richey for the
Pasco-Pinellas State Attorney's Office, said he has heard no public outcry
to go easy on marijuana users. Halkitis knows that for now, "medical
necessity" is a legitimate defense, although he added that in each case a
judge or jury decides whether to agree with it.

"My quarrel is that to my knowledge people usually use it as an excuse to
abuse illegal drugs," he said.

The medical benefits of marijuana remain controversial, with both sides
often using the same research to bolster their cases.

The evidence is at best inconclusive as to whether marijuana has any
medicinal benefits, opponents say. They argue that smoking marijuana can
lead users to try even more addictive and hazardous drugs. Plus, many
alternatives exist such as Marinol, a prescription drug that mimics the
effects of marijuana.

"I sympathize with anyone who suffers from a disabling disease," McDonough
said. "But the evidence isn't there, and I'm not prepared to sanction what
I think would be detrimental to the residents of Florida."

Supporters of cases like Merrion's say the synthetic drugs don't work as
quickly or as well and cost a lot more than marijuana. Merrion, who takes
$1,600 worth of prescription medicine every month, estimated that he could
save taxpayers more than one third of that amount if he was allowed to
freely smoke marijuana.

They also point to research in North America and Europe that suggests that
marijuana benefits people with ailments such as glaucoma, AIDS and multiple
sclerosis. They cite dozens of anecdotal cases of people feeling and
getting better. They resent the "addict" label, saying that marijuana is
the only thing that works.

That's exactly what Merrion's attorney, assistant public defender Kirk
Campbell, hopes to prove with the help of an expert from the City
University of New York Medical School, who has testified about the medical
benefits of marijuana in other cases.

"We felt that this was our best defense," Campbell said. "Marijuana seemed
to be the best thing for him."

Few lawyers with similar cases have shared Campbell's feelings, if the
number of trials is an indication. Prosecutors from several offices around
the Tampa Bay area said they had never had a case like Merrion's come to trial.

McDonough, however, is concerned that a few successful cases could prompt
more people arrested for growing marijuana to give the defense a shot. He
said that in the few states that allow the use of marijuana for medical
purposes, people have used absurd ailments such as warts to justify their
marijuana use.

"The medical necessity defense opens up a can of worms that can be hard to
close," he said. "Where would it stop?"

Merrion spends a lot of his time these days preparing for his trial, which
should take place in two months. The State Attorney's Office offered him a
deal of two years' probation and community service. It's a deal Merrion and
his attorney both called reasonable, except for one catch: The probation
would include drug testing.

Since Merrion refuses to stop smoking marijuana, he would fail the first
test. A violation of probation charge could land him in jail. He buys his
marijuana from a friend, which is becoming more difficult as his mobility
worsens. He would like to grow it himself.

"It's not like I'm sitting outside schools selling pot to kids," he said.
"I use it in the privacy of my home where it doesn't affect anyone else."

Unable to walk very far, Merrion passes the hours playing video games and
surfing the Web, a tough role for a self-described former workaholic. He
hasn't seriously considered suicide in several months, although the scars
on his wrists remind him of the period a short time ago when the thoughts
dominated his life. He wonders whether those demons will return if his
symptoms worsen and he cannot use marijuana.

"I was in pain. I was scared. Nothing seemed to help," he said. "No one
should make me go back there."