PLANTING EVIDENCE

Local prosecutors say the proposed medical-marijuana law would pose big
problems for law enforcement.

If Multnomah County prosecutors are to be believed, the state police
academy had better be prepared to start teaching classes in horticulture.

According to a recent analysis by the Multnomah County District Attorney's
Office, the proposed medical-marijuana law poses all sorts of problems for
police and prosecutors.

Under Measure 67, people with "debilitating medical conditions" would be
allowed to possess and grow marijuana to help treat their illnesses. The
measure requires the Oregon Health Division to issue medical-marijuana
permits to people who present notes from their doctors saying that
marijuana may help with their condition. Show the permit to the police,
and, if you have less than one ounce of usable pot and no more than seven
(four mature and three immature) plants, they're supposed to go away.

That sounds pretty clear, but Mark McDonnell, who heads one of two drug
units in the district attorney's office, says the law presents all sorts of
loopholes and complications. Two of his points, outlined in the analysis,
have the most credibility.

First, McDonnell says, the measure allows people with debilitating
illnesses to claim the medical defense even if they don't have the permits
at the time they're busted. Others who are not ill may be growing marijuana
for a sick friend, which is allowed under the measure. In either case, the
measure allows a person to avoid conviction if it can be established that
the pot was being used to treat a medical condition.

According to McDonnell's analysis, "persons who have never obtained, or
even applied for, a marijuana-use permit can wait until the day of trial
and claim for the first time that they suffer from a debilitating medical
condition."

If the measure passes, McDonnell expects more and more marijuana defendants
to claim that they were using or growing pot for medical purposes. "We'll
likely see it in virtually every case," he says, "except where it's a
marijuana sale to an undercover officer [the measure prohibits sales] and
large commercial grows where not even a defense attorney could argue
medical necessity with a straight face."

Lawyers who represent marijuana defendants agree that the defense will
probably be used frequently, both by people with real health problems and
by others with bogus medical claims.

"I think it's in people's nature, if they're in trouble, to try to get out
of trouble," says defense lawyer Pat Birmingham. "Sure there's going to be
people that try to abuse it."

"Theoretically, I believe it is a defense that could be used," says defense
lawyer Michele Kohler, although she believes that it will only be effective
in cases in which the person is legitimately and obviously ill.

McDonnell's second point is that even if prosecutors can weed out bogus
claims, the law would suck up resources. The measure, he says, prohibits
authorities from "harming" or "neglecting" any property seized by the
police until the defendant's case has been resolved. McDonnell says the
provision includes the plants themselves.

"As a result," the analysis says, "the police will be required to maintain
and care for all growing marijuana plants they seize until the defendant's
case is finally resolved."

McDonnell, who says that last year 7,917 marijuana plants were seized by
local police, pictures a vast police greenhouse filled with the budding
plants.

David Fidanque, the director of the Oregon chapter of the American Civil
Liberties Union, which helped write the measure, says the provision was not
designed to protect plants but other property that may be seized as part of
a marijuana case.

"I think it's a ludicrous reading of the statute," he says. If the courts
do require police to care for growing marijuana plants, he adds, "I think
we would be the first ones to support a clarification of that statute."

To the district attorney's office, the bottom line is that the law is
difficult to enforce. "The measure puts the police and prosecutors in the
untenable position of trying to enforce a law with huge loopholes,"
McDonnell says. "What the measure really intends to do, under the guise of
medical purposes, is to legalize marijuana or make it extremely difficult
to prosecute these cases."

While the district attorney's analysis is being criticized by proponents as
an attack on medical-marijuana users, it does not directly oppose the
measure. "Personally, I don't think half the DAs care one way or another,"
says Kohler. "But professionally it's their
duty to uphold the law."

originally published September 30, 1998

[these paragraphs were laid out in a separate column in the online version
of this story:]

Over the past three years, there have been just 19 cases in which marijuana
defendants in Multnomah County claimed their pot was for medical purposes.
In some of these cases, the charges were dismissed.

"I think it's in people's nature, if they're in trouble, to try to get out
of trouble. ...Sure there's going to be people that try to abuse it." --Pat
Birmingham

Checked-by: Joel W. Johnson