WHEN IS THERE MERCY?

The transcript of a hearing in which the Dane County DA's office
sought to jail a terminally ill man for smoking pot.

The following is a transcript of a hearing held March 18, 1999, before
Dane County Circuit Court Judge Angela Bartell, as well as a
chronology of events provided by Deborah McCants, the wife of the man
being prosecuted, who died the next day. An article on this case
appears in the April 9 issue of Isthmus.

STATE OF WISCONSIN

CIRCUIT COURT Branch 10

DANE COUNTY

STATE OF WISCONSIN,

Plaintiff,

VS.

ABE MCCANTS,

Defendant.

Case Nos. 97 CM 003836

98 CF 001966

98 CM 004052

PROCEEDINGS: EMP Review Hearing

DATE: March 18, 1999

BEFORE: The Honorable ANGELA BARTELL, Presiding Circuit Court Judge

APPEARANCES:

LYN OPELT, Assistant District Attorney, appearing on behalf of the
State of Wisconsin;

MICHAEL ALESCH & REBECCA REPAAL appearing on behalf of the
Alternatives to Incarceration Program;

JORDAN C. LOEB, Attorney at Law, appearing on behalf of the defendant,
and the defendant in person.

THE COURT: This is State of Wisconsin versus Abe McCants, 98 CF 1966,
97 CM 3836, 98 CM 4052.

Today's appearances, please?

MS. OPELT: The State appears by Assistant District Attorney Lyn Opelt.
Also present from Alternatives to Incarceration are Rebecca Repaal and
Mike Alesch.

MR. LOEB: Abe McCants appears in person represented by Jordan
Loeb.

THE COURT: I'm just reviewing Ms. Repaal's letter from March 12. Give
me just a moment. All right. Ms. Opelt, have you reviewed that letter?

MS. OPELT: Yes, I have, and I've spoken with all the parties
involved.

THE COURT: Do you have a suggestion for the Court?

MS. OPELT: This is one of those very difficult and impossible
situations, but given Mr. McCants' behavior while he has been in the
Alternatives to Incarceration Program, I am recommending that he be
revoked from that program and placed back in the jail.

I know that Mr. McCants has, is not well. He is on morphine I believe
every three hours, but I'm very concerned about the fact that he has
had these positive U.A.s through the program and he has not been
forthright or honest with either Mr. Alesch or Ms. Repaal about why he
is having those positive U.A.s; plus just his behavior in general has
been such that he feels for whatever reason he doesn' t have to follow
the rules of the program. I know that he is --

THE COURT: His convictions are for what? Would you remind me what the
charges are?

MS. OPELT: You know, I don't have the CF case. That's Ken Farmer's
case, but I assume it is some drug conviction.

MR. LOEB: No. It is an obstructing. It was amended to
obstructing.

MR. MCCANTS: I don't have a drug conviction on my case at
all.

MR. LOEB : Okay.

MR. MCCANTS: I don't.

MR. LOEB: I know.

THE COURT: There appears to be two resistings or obstructings, and
there appears to be one disorderly conduct. MS. OPELT: That is
correct. And I believe that his ending date for the jail sentence
according to Ms. Repaal would be June 26th. He started his jail
sentence on January 16th, and then it was modified as you can see from
the letter on February 19th.

THE COURT: Mr. Loeb, are you able to tell me whether it is resisting
or obstructing?

MR. LOEB: It's resisting --

THE COURT: It's resisting?

MR. LOEB: -- from my understanding.

THE COURT: Each of them?

MR. LOEB: Yes.

THE COURT: Mr. Alesch or Ms. Repaal, is there any statement that
either of you wishes to make?

MR. ALESCH: Just to agree with Ms. Opelt. It has been very difficult.
And I understand Mr. McCants' situation, but we have program rules,
and we have to enforce those rules no matter what the situation. I
mean we know that's what the Court expects when they put someone in
our program.

It's very disconcerting that Mr. McCants has not been honest with us.
He comes up with various reasons why he tests positive. He not only
tests positive, but he puts them off the scale over at the Huber
Center for marijuana, and he gives us various reasons. We believe that
he is using marijuana. He just is not straight forward about that, so
he has been very difficult to deal with.

THE COURT: Thank you. Mr. Loeb?

MR. LOEB: Thank you. I've been speaking with Mr. McCants'
doctor.

THE COURT: Who is his doctor?

MR. LOEB: Dr. Felipe Manalo. On short notice, I wasn't able to get Dr.
Manalo to come here and be able to speak to the issues, but I don't
think it takes a whole lot of imagination to reiterate and understand
his point. From a medical perspective, the biggest problem in Abe's
life is that he is dying of cancer. The record shows and the letters
that have been forwarded to the Court confirm that. The December
letter was suggesting that they predicted six months to live. That is
obviously not a 100 percent forecast. It is a doctor's best guess
given his experience with cancer. The doctor's response when I talked
about this is why are people concerned with the marijuana. Why are
people concerned with what seemed to him to be trivial rules? Of
course I work in a criminal justice system, and I'm able to explain to
the doctor that's exactly what the criminal justice system is suppose
to be concerned with. So we have a clash right there in terms of two
legitimate sets of priorities.

The medical priority is to try to keep Mr. McCants comfortable while
he is ill. He is more than ill. He is dying. I've known him for two
months. In looking at him. I'm watching him die. I don't know him
personally, but it is obvious to me that he is deteriorating in front
of us. Unfortunately I've had a lot of experience to know that people
get real optimistic. In this case if only we could get him out of jail
and get him home, things would be better. That was probably naivete in
not addressing the limitations of the Alternatives to Incarceration
Program when we asked for it a month ago. I probably should have
thought that program might be too rigid obviously with a criminal
history, and putting him on this program doesn't change the fact that
he has a history with the DA's office. Part of the reason that he has
a" history with the DA's office is a bad attitude. That is not going
to change overnight, and I'm not asking the Court to forgive him.

Alternatives to Incarceration suggests that if he had been honest
up-front in using marijuana that might make a difference. The fact of
the matter is it doesn't make a difference. Despite what's out there
in the medical world about maybe marijuana could be useful for cancer
patients, it is not legal in this state. For him telling them that and
him coming to this Court and saying I'm using marijuana for relief
doesn't help our situation because it is not legal. The fact of the
matter is that the medicines he is on are Morphine, Dilaudid, every
two hours two milligrams, the maximum doses. I would suggest that that
is part of his bad attitude. He is on a heavy narcotic, a narcotic
stupor 24 hours a day just to relief the pain. He takes a liver
cleaner, and then he takes two other medications just to basically
help him die comfortably. I think it is easy to say he is breaking the
rules, he should go back to jail, but I . think that simplifies the
problem a little too much. The jail isn't going to be able to
administer to his pain at all. I've had a lot of clients in jail, and
they complain that they can't get an aspirin within 12 hours, let
alone Morphine every three hours.

And in terms of suggestions, I would point out to the positive of
Abe's behavior while he has been in Alternatives to Incarceration. He
has been on electronic monitoring, and the information that I have is
that he hasn't violated that. He is not out roaming the streets. He is
not out looking to make trouble in Madison at large.

He hasn't been compliant with the program. Maybe his attitude is part
of the problem, and maybe the amount of medication he is on is
hindering any attempts he might be making to have a good attitude to
be compliant. I guess I would ask the Court -- I can't ask you just to
forgive him and say time served, you know, that cancer makes up for
any wrongs that you have done. Reading between the lines and hearing
what Alternatives to Incarceration is saying is that they have their
rules. Maybe with the Court's permission Alternatives to Incarceration
can supervise him electronically. As long as he stays in his house, he
is not making trouble on the streets, the city of Madison, and the
community of Dane County won't have to worry about him. I think it is
unfair to the jail and I think it is even more unfair to Abe McCants
for him to go to the jail at this time. They are just not going to be
able to serve him.

THE COURT: Thank you. Ms. Opelt, any response?

MS. OPELT: No, Your Honor. I don't think there is an easy answer so I
have no other response.

THE COURT: Mr. Alesch or Ms. Repaal, do you want to respond to Mr.
Loeb's suggestion, basically that you continue to supervise on a
modified basis? I take it that is what he is suggesting.

MR. ALESCH: I guess I don't have a problem with that except we weren't
going to just do that arbitrarily on our own, change a program rule.
We would like the Court's permission to do that.

THE COURT: What does the electronic monitoring data show about his
whereabouts?

MR. ALESCH: In talking with Ms. Repaal, apparently that has all been
okay.

MS. REPAAL: He has done well.

MR. ALESCH: He has done well other than this thing with the urine
tests.

THE COURT: I'm concerned about the failure to report. In the letter of
Ms. Repaal, it says --

MR. ALESCH: Oh, that was I think for a U.A., wasn't
it?

MS. REPAAL: Yes.

MR. ALESCH: That was for a drug test.

MS. OPELT: Your Honor, I believe it was a refusal to report more than
a failure, or failing to appear, and I would guess that that's because
he knew that his U.A. was going to be positive.

MR. MCCANTS: Uhm, --

MR. LOEB: Abe, I'll explain.

MR. MCCANTS: Wait. Wait. Wait. Wait. The reason why I didn't report
was my feet had swollen up. As you can see, they are swollen still. My
feet are swollen up. I called my doctor. I says, hey. He told me, man,
were you just down here yesterday? I said yeah I was just down here
yesterday. He says well, okay. I'm going to call down to the jail, I
mean call down to Ms. Repaal --

THE COURT: Repaal?

MR. MCCANTS: -- and Mr. what-you-call-it and let them know. I don't
know if he did that or not. I don't know. Did he do that? He did do
that?

MS. REPAAL: Yes.

MR. MCCANTS: That's as much compliance as I can do on that. He told me
just go on and lay back down. You won't have to do that.

THE COURT: Anything further, Mr. Loeb?

MR. LOEB: I just got handed a fax. Apparently the doctor is now
responding explaining some of the situation.

THE COURT: Do you want to present that to the Court? First you need to
show it to the other side.

MR. LOEB: I'm not sure it does anything other than putting in writing
what I already suggested to the Court. I don't think the State or the
Alternatives To Incarceration Program is questioning the accuracy of
what I was saying. I think Dr. Manalo is giving Abe McCants one set of
priorities, take care of yourself. The fact of the matter is that that
doctor doesn't have the authority to relieve or release Abe from any
of his obligations under the program. I don't want to put words in Mr.
Alesch's mouth, but what I hear him saying is we are not going to
change the rules, but if 'the Court gives us permission to just
supervise him electronically, they can work with that. That's my suggestion.

THE COURT: I'm reviewing a fax from Felipe B. Manalo. All right. Dr.
Manalo corroborates the physical status of Mr. McCants as being,
having a low blood pressure whenever he stands up, that he was on
March 13th markedly jaunticed, weak, and dizzy. He indicates that it
is not impossible for him to show up for this hearing, and he is
present in court, but indicates that it would be very difficult for
him. The doctor hasn't seen him since March 13th, and, of course,
today is the 18th.

Mr. McCants' left leg is markedly swollen. He showed it to the
Court.

My major concern is that Mr. McCants be where he is ordered to be and
that he report when he is ordered to report assuming he is medically
able to report. I think some modifications of the obligation to report
would be in order given his medical condition provided that the
electronic monitoring report show he is where he is suppose to be, and
so I would ask the Electronic Monitoring Program to continue to
supervise consistent with those principles.

Is that clear enough, Mr. Alesch?

MR. ALESCH: And suspend our drug testing also?

THE COURT: I'm going to leave that in your discretion as to whether it
is necessary or appropriate.

MR. ALESCH: Well, my feeling is it is going to continue to test
positive. I believe Mr. McCants will continue to use marijuana while
he is on our program. I guess I'm just looking for permission to
ignore that given his condition. I mean it is obvious that every time
we give him one it is going to test positive.

THE COURT: That is not --

MR. ALESCH: In all honesty, about --

THE COURT: Excuse me. That aspect of your program is not of concern to
me. My major concern is that he is completely within the boundaries of
where we expect him to be, and if he is not, then he needs to be in
the jail, and the jail will have to make a judgment whether they can
deal with this medical condition or not. Okay. Thank you.

MR. LOEB: Thank you. Judge.

MS. OPELT: Thank you. Judge. (Proceedings concluded.)