STAGE IS SET FOR SHOWDOWN ON USE OF POT

Court to hear man's claim he has compelling medical need to smoke marijuana

The law says marijuana is a crime, but to Michael Domangue, it's medicine.

And now the 50-year-old Grand County man will get to take his case to a jury.

Next month Domangue may become the first person in Colorado to argue in
court that his medical condition justifies smoking pot, even though it's
against the law.

"Nobody has ever jumped over this hurdle with a medical marijuana case
before," said Domangue's attorney, Warren Edson.

Colorado doesn't have a law exempting the medical use of marijuana from
criminal prosecution, but it does have a "choice of evils" defense.

Generally, it allows a defendant to argue that he was justified in breaking
the law to prevent a greater injury. Domangue claims he smokes pot to ease
a variety of mental and emotional problems stemming from his military
service in Vietnam.

Similar cases are percolating in courts nationwide as part of a movement to
allow the use of marijuana to ease conditions ranging from glaucoma to
arthritis, said Tanya Kangas, director of litigation for the National
Organization for the Reform of Marijuana Laws, known by the acronym NORML.

"The legal precedent that's important to NORML is that a defendant ought to
be able to tell a jury why he or she smokes marijuana," Kangas said. "Then
the jury can decide whether that information is important to that
particular case."

NORML and several other groups have a "Medical Marijuana Support Fund" that
helps with expenses in such cases, including Domangue's. "We are definitely
seeing a wave of these cases going through the courts," Kangas said.

Earlier this month, Edson, who serves on NORML's legal committee, argued in
Grand County District Court that Domangue ought to be allowed to tell a
jury that he smokes marijuana for medicinal reasons.

Although prosecutors objected, Judge Richard P. Doucette agreed to allow
the "choice of evils" defense, setting the stage for a perhaps
precendent-setting trial in Hot Sulphur Springs beginning Oct. 14.

Prosecutor Craig Henderson of the Grand County district attorney's office
will now have to prove that not only did Domangue violate laws against
possessing and cultivating marijuana, but also that he can't use his
medical condition as a justification for breaking the law.

Henderson won't talk about the case, but he argued in a motion that
allowing the defense in this case is a waste of time that will confuse the
issue and mislead the jury.

This won't be the first time Domangue has been involved with the law over
marijuana, or that he has made a case for what he believes are the plant's
medicinal powers.

In March 1995, he founded the Sacred Herb Church in Boulder to promote
marijuana, and he has long been a proponent of exploring new legal
territory in pot cases, Edson said. Domangue has been charged with several
minor marijuana offenses in the past few years. They were either dismissed
or they resulted in a fine or probation.

Edson said Domangue in 1984 attacked police officers because he thought
they were Viet Cong. He was found not guilty by reason of insanity and was
sent to the Colorado State Hospital in Pueblo until he was discharged in 1989.

Domangue declined to discuss the current case. Records show he was sitting
in his mobile home last October when Grand County deputies in the trailer
park on other business noticed a pot plant in his window.

Domangue invited them in and when he was asked if he knew why they were
there, he pointed at the window and said, "It's probably that plant there."

There was also a wood plate on the coffee table in front of Domanague with
marijuana seeds and "a little marijuana."

He's been charged with possession of less than one ounce of marijuana. But
he's also been charged with cultivation, a felony punishable by six years
in prison. He is now free on $5,000 bail.

The wall of the trailer had a cloth picture with the words "Why Hemp," and
his reading material included Marijuana Growers Handbook and Marijuana Botany.

Domangue also said he had a letter from his doctor saying he smoked
marijuana for medical purposes.

Dr. Ray Leidig of the Mental Health Center of Boulder County, who once
treated Domangue, testified in his behalf at the recent hearing.

Leidig said the use of marijuana reduces anxiety in people who suffer
delusions or hallucinations.

He declined to discuss Domangue specifically, but he and Edson said
Domangue has a long and troubled legal and medical history.

Edson said Domangue is a Vietnam veteran who is suffering from post
traumatic stress disorder and who smokes to ease the symptoms of
psychiatric problems.

Domangue has taken a prescription drug called Marinol, a synthetic
marijuana, but Edson said the medication is too intense and long-lasting
for Domangue.

One of the elements of the "choice of evils" defense requires that the
defendant show that other reasonable alternatives were pursued but didn't
work. -----

Rocky Mountain News
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Denver, CO 80204
Phone: (303) 892-5000
Fax: (303) 892-5499 Email: letters@denver-rmn.com Web: www.denver-rmn.com

Checked-by: Pat Dolan