CANNABIS CLUB CASE TESTS READING OF MEDICINAL POT LAW

Courts: Three are accused of selling the drug through a Garden Grove
operation. They say they merely sought donations.

Hundreds of drug-related cases pass through Orange County courts each
month, but the case of the People vs. David Lee Herrick is bound to set a
new standard regardless of its outcome.

A member of a Garden Grove-based cannabis club, Herrick is charged with
selling marijuana, and his case offers the first local test of the
medicinal marijuana initiative passed by California voters in 1996. At
issue for a jury to decide is whether Herrick's acceptance of cash
"donations" in exchange for marijuana for medicinal use amounts to the
illegal distribution of the narcotic. If convicted, Herrick would face as
many as nine years in prison. The trial, expected to begin Wednesday in
Orange County Superior Court, puts the cannabis club on the front lines of
the statewide battle to keep marijuana available for medicinal use: In
addition to Herrick, club director Marvin Chavez is in jail awaiting trial
on marijuana charges while club member Jack Schachter--arrested in the same
snare that caught Chavez--is out on bail.

The medical marijuana initiative, known as Proposition 215, was approved by
56% of voters in November 1996--much to the chagrin of law enforcement
officials who believe it is a step toward legalizing the narcotic.

Since then, cannabis club members and directors have been taken to court
from San Francisco to San Diego, with many activists alleging they have
been unfairly targeted for arrest.

Members of the Garden Grove club, officially called the Doctor, Patient,
Nurse Support Group, say the arrests of Herrick, Chavez and Schachter, who
have all pleaded not guilty, prove their point. Marijuana is natural
medicine, and the men are guilty only of helping sick people soothe their
chronic pain, they say. The club's roughly 200 supporters statewide see the
trio as martyrs in a noble cause.

Club members and defendants see the trial--and the handful of others held
elsewhere in California, including San Francisco--as key battlegrounds.
They point to all of those rallying to help them as evidence they are
winning the struggle.

Doctors who advise patients to use marijuana have offered to speak out
during their trial. Chavez's two lawyers are working for free to thank him
for providing marijuana for medical use for their suffering relatives.

Herrick's public defender, once nonchalant about the whole issue, now is
reading books on marijuana and is passionately devoted to freeing him. And
an investigator for the public defender's office attended the last cannabis
club meeting to outline how its members could distribute marijuana and
receive money for it--without breaking the law. * * * But prosecutors have
a very black-and-white view of the matter. Herrick is on trial because he
broke the law, they say. California's medical marijuana initiative allows
the cultivation and possession of small amounts of marijuana for personal
use only. That makes any exchange of money, goods or services illegal.

Whether Herrick sold the drug to sick people or healthy ones is irrelevant,
officials said, because Herrick is facing charges he accepted money in
exchange for marijuana.

"This is a case of a marijuana seller selling marijuana," said Carl
Armbrust, head of the Orange County district attorney's narcotics unit, who
contends that the case does not even qualify as a test of Proposition 215.

Indeed, Judge William R. Froeberg has almost closed the door to a
Proposition 215 defense for Herrick, who was arrested in May 1997 after
police found seven bags of marijuana in his motel room. The marijuana was
marked "Not for sale. For medical purposes only." Froeberg ruled that
Proposition 215 does not protect the sale of marijuana, even for medicinal
reasons.

So Herrick's attorney, Sharon Petrosino, said she will try to prove that
her client accepted only voluntary donations to the co-op--not payments in
exchange for drugs.

Herrick and the Garden Grove club require members to bring a doctor's
written authorization; the club checks back with the doctor and requires
members to promise not to give the marijuana to anyone else, Petrosino said.

Petrosino also will argue that Herrick's case falls into the area of
medical necessity law. "It says that under certain conditions, we allow
people to violate the law because the alternative is so egregious."

Both sides plan to call to the stand witnesses who are ill and in chronic
pain--Petrosino to prove they needed the drug and voluntarily made
donations to the co-op, and Armbrust to prove they received drugs for money.

Chavez and Schachter were arrested last month after an undercover operation
during which a Garden Grove police officer posing as a caregiver approached
them separately about purchasing some "medicine," they said.

"I told him, 'This is free,' and I wrote a receipt saying one-quarter
ounce, free," said Schachter, who said he then asked the undercover officer
if he would like to make a $20 donation. "A couple days later, there's a
knock at my door and it's the Garden Grove Police Department," said
Schachter, who cultivates marijuana plants to ease the pain caused by
detached retinas. The same officer also obtained marijuana from Chavez and
arrested him.

* * * In an interview at the Orange County Central Men's Jail, Chavez, who
faces trial later this year, admitted taking cash in exchange for the
drugs, but he said the "donation" was understood to be a token amount to
help the club cover its costs.

"Often, we don't even take any money," he said.

Right now, Chavez, who has been incarcerated since Easter, says he could
use some medicine himself. The chronic back pain he suffers from has gone
untreated except for Tylenol allotted to him by the jail.

"I'm hurting," Chavez said. "My spirit is strong, but my body is hurting."

But while he remains in jail in lieu of $100,000 bond, Chavez said he has
used his time to proselytize to guards and prisoners alike about medicinal
marijuana.

"This cause, to me, is worth going to jail for and suffering for," Chavez
said. "This is my mission, and I'll never give up."

Copyright Los Angeles Times