THE HIDDEN WAR

Narcs Are Arresting Medical Pot Patients And The State Is Investigating
Their Doctors

More than two years after California's voters approved Proposition 215, a
behind-the-scenes war is still raging over the legality of a law that
allows sick people to grow and smoke marijuana as a legitimate medicine.

The victims of the war are medical marijuana patients and their physicians.
Dozens of patients have been investigated, arrested and jailed by local and
federal authorities for growing pot. And now even the state's watchdog for
bad doctors has entered the fray, the SN&R has learned. A number of
physicians who have recommended marijuana to patients under the provisions
of Prop. 215 are being investigated by the Medical Board of California.

"The [Central] Valley has a whole cadre of what I call victims of 215,"
said Dr. Alex Stalcup, a prominent Concord physician who is one of the
doctors being investigated by the medical board for recommending marijuana
to patients. "It's very sad, very sad. I just think it's a scandal. These
people believed in 215. Many of these people have terminal illnesses,
chronic illnesses. Many of these people are ashamed that they have to use
cannabis. The last thing they would do is be a dealer."

More than 30 medical marijuana patients have been arrested in the
Sacramento region since Proposition 215 passed in November 1996, according
to Ryan Landers, spokesman for a loose-knit Sacramento-based organization
that was formed recently to provide legal assistance for the numerous
medical pot patients now facing trials in about five different local
counties. A large number of the patients were arrested by the Placer County
Sheriff's Department, said Landers.

That agency's most high-profile arrest occurred last month. Steve Kubby, a
medical marijuana patient who was the Libertarian Party's gubernatorial
candidate in last year's election, and his wife, Michele, were arrested for
growing pot at their Squaw Valley home by a North Lake Tahoe narcotics task
force that included Placer County narcs and federal agents of the U.S. Drug
Enforcement Agency. The arrest of Kubby has fueled allegations that the war
on Prop. 215 is based on politics and has little to do with the medical
needs of the patients who have been targeted by narcs.

"This is such an obviously political case and who's pulling the strings,"
said Kubby. He and his wife have pleaded innocent and said they plan to
file criminal and civil cases against Placer County officials. Libertarian
Party members in Placer County said last week the Kubby bust has prompted
them to organize a recall election against Placer County District Attorney
Brad Fennochio and Placer County Sheriff Edward Bonner.

Officials at the Placer County Sheriff's Department could not be reached
for comment. A spokeswoman at the Placer County District Attorney's Office
said Fennochio was out sick and no one else at the agency was allowed to
comment on the Kubby case. The DA recently turned prosecution of the Kubby
case over to a Placer County grand jury.

Placer County narcotics agents launched a surveillance of Kubby last summer
after receiving an anonymous letter alleging that Kubby was selling pot to
fund his gubernatorial campaign, according to police records. The letter
was mailed from Marina Del Rey to El Dorado County sheriff's deputies. El
Dorado County Sheriff's Detective Don Atkinson forwarded the letter to
Placer deputies with the following note: "We have no information as to the
origin of the letter, other than the Southern California postmark. The
information is weak and non-specific, but I wanted to pass the letter along
in the event your narcotocs (sic) enforcement team is interested in
reviewing the contents."

The "weak and non-specific" letter was apparently all Placer cops needed to
launch a full-fledged investigation and surveillance of Kubby, according to
police records obtained by the SN&R. On July 2, the same day Placer cops
received the letter and note from Atkinson, Edward York, a Placer County
investigator, started a case file on Kubby with the following statement:
"Suspect KUBBY is the Libertarian Party candidate in the current State of
California Governor's race and an outspoken advocate of medicinal marijuana."

Indeed, Kubby has been called "the savior of 215" by many medical marijuana
advocates. That's because he was the politician most responsible for
getting Prop. 215 on the California ballot. He convinced a number of
wealthy businessmen to put up the campaign funds that ensured the
initiative's success at a point when the proposition was in danger of not
making a ballot deadline.

Kubby also has been the state's most high-profile medical marijuana
patient. Fifteen years ago he was diagnosed with a form of terminal cancer
that no one has lived with for more than five years. His physician at the
University of Southern California Medical Center has called him a medical
miracle because smoking pot appears to have played a part in keeping his
tumors in check and keeping him alive for the past 15 years. Dr. Vincent
DQuattro, the USC physician, sent letters to Placer County officials on
Feb. 4 informing them that they are now endangering Kubby's life by
depriving him of his medical pot.

Medical pot advocates point to Kubby's campaign against former state
Attorney General Dan Lungren in last year's governor's race as an
indication of the political overtones of his arrest. Lungren, who lives in
Placer County, opposed Prop. 215 and led the opposition against it. Medical
pot advocates say Lungren is directly responsible for the dozens of arrests
that have occurred because he issued guidelines that insisted any medical
pot patient who was caught growing more than two plants was in violation of
the law. Patients such as Kubby hotly dispute Lungren's two-plant rule and
claim they often have to grow many more than two plants to ensure
themselves an adequate supply of medical marijuana. Prop. 215 said patients
could grow as much as they need without specifying a number of plants.

In almost all arrests, police have no evidence that patients are growing
plants for any reason other than personal use, said Landers. Prosecutors
are using Lungren's two-plant rule to charge all of the patients with
cultivation of marijuana with intent to sell. The Clinton administration's
opposition to 215 also has added political overtones to the war against it
since the DEA plays a huge role in pot busts. Landers said his group is
exploring the possibility of filing a class-action suit in the future that
would allege violation of rights of medical pot patients by government
agencies.

"This area seems to be one of the state's highest areas of arrests and
prosecution of medicinal [pot] patients," said Landers. "There seems to be
more medicinal busts than recreational or black market busts."

While dozens of medical pot patients are now facing trial, some of their
doctors are now facing investigations by the Medical Board of California. A
source at the medical board confirmed that it has opened some
investigations of physicians based on their recommendations of medical
marijuana. But the medical board would not comment on specific investigations.

The number of investigations of physicians related to Prop. 215 is
"probably not very many-a couple, handful at most," said Dave Thornton, a
supervising investigator with the medical board and member of state
Attorney General Bill Lockyer's new task force on medical marijuana.
Thornton said the investigations were prompted by routine complaints that
the board has an obligation to check out.

"What we're trying to determine is if the physician properly recommended
the use of marijuana," said Thornton. "We're not looking at them because
they recommended the use of marijuana. [Recommending marijuana is not a
problem] as long as they follow the guidelines for prescribing any drug.
That's if they do a good faith examination and that there is a medical
indication that the use of marijuana is medically necessary."

The investigation of Stalcup, the Concord physician, by the medical board
itself is one of the grand ironies of the war against Prop. 215. The
prominent physician is considered by law enforcement officials to be one of
the nation's leading authorities on illegal drugs and has worked for years
as a consultant to the California Narcotics Officers Association. In the
past two years, as many as eight local district attorneys have sought his
opinion on medical marijuana cases after patients were arrested for growing
pot, the physician said.

"When I have concluded that they did have a 215 condition, they dropped the
charges," said Stalcup. "I'm viewed nationally as very pro-law
enforcement." The physician said the medical board investigation of him was
triggered by the Placer County Sheriff's Department, which arrested two of
Stalcup's medical marijuana patients in South Placer County and charged
them with illegal cultivation of pot with intent to sell.

"I've always been proud of working very closely with the California
Narcotics Officers Association," said Stalcup. "I've run a practice that
has a lot of pain patients. [Medical marijuana] is a major step forward for
pain patients. I don't write a lot of [medical marijuana recommendations].
I write them for people who are regular patients of mine. Unfortunately,
quite a few of those patients have been arrested and are facing prosecution."

The medical board also is investigating Stephen Banister, a Nevada City
physician who recommended marijuana to at least one of his Nevada City
patients, according to medical board documents obtained by the SN&R. The
board "is reviewing the quality of care provided to you by Stephen
Banister, M.D.," said a Jan. 13 letter sent to Banister's patient, Wesly P.
Stockdale. The letter asked Stockdale to grant it permission to review his
medical records, and said the board would issue a subpoena for the records
if Stockdale did not grant permission within 10 days.

Stockdale sent a letter back to the board that stated: "I will not sign a
release of my records with Dr. Banister. Not only do I find this to be a
gross invasion of my privacy (wherein I also object to the subpoenaing of
my records in any and every way possible) but I believe Dr. Banister to be
a man of high integrity, competence, decency and compassion and I believe
that the review of my chosen physician to be a highly inappropriate and
misguided action."

Stockdale was initially arrested for possession of marijuana before Prop.
215 was passed, according to court records and Department of Justice
documents. One of the conditions of his probation was that he was not
allowed to smoke pot. After Prop. 215 passed, Banister recommended pot for
a chronic spasticity problem in Stockdale's back. Stockdale challenged the
probation restriction in Nevada County Superior Court on the grounds that
medical necessity under Prop. 215 took precedence over the probationary
restriction. The court ruled in Stockdale's favor. Despite that ruling, the
medical board launched its investigation of Banister, who could not be
reached for comment.

State and local officials involved with Prop. 215 say the confusion and the
war over the groundbreaking initiative will not be settled until both the
federal government and Lockyer come up with new guidelines to end the
confusion about the initiative. Lockyer, a Democrat and supporter of Prop.
215, established a new task force on Prop. 215 last month that hopes to
make a stab at such an effort.

"I think Lockyer is going to take a more reasonable look at it," said
Thornton, the Medical Board investigator who sits on the task force. "It's
a real law enforcement nightmare. I got to tell you everybody's confused
out there. Local district attorneys and law enforcement agree this is the
will of the people, but they're between a rock and a hard place of having
the burden placed on them to determine how much is legitimate medical use."