JUDGES DEFYING FEDERAL LAW IN MEDICAL MARIJUANA CASES

NEW YORK - A federal judge in Los Angeles and a county judge in
Colorado are the latest jurists to defy prosecutors seeking
convictions against defendants using marijuana for medicinal purposes.

The recent rulings are the latest salvos in an ongoing battle between
tough federal drug policies and laws passed in nine states that allow
the use of what they term "medical marijuana."

In Los Angeles, U.S District Judge Howard Matz lectured prosecutors
for using their resources to prosecute three officers of the
now-shuttered Los Angeles Cannabis Resource Center.

The center grew and doled out marijuana to ease the suffering of
cancer and AIDS patients, and others registered with the state who
had, among other ailments, chronic pain.

Such centers, though permitted by California's 1996 Compassionate Use
Act, violate federal drug laws. Prosecutors sought two-year sentences.
But Matz earlier this month departed from Federal Sentencing
Guidelines and gave the men probation. One of those charged has cancer
and another undergoes treatment for HIV. U.S. v. Imler, No. CR
03-273-AHM [C.D. Calif.].

Orders to Return

Last week in Routt County, Colo., Judge James Garrecht ordered
authorities to return two ounces of marijuana they had seized from Don
Nord, 57, who used the drug to ease the debilitating symptoms of his
many ailments, including kidney cancer, phlebitis, diabetes and lung
disease.

Colorado law permits the cultivation and use of marijuana to mitigate
symptoms of cancer, AIDS, chronic severe pain and other conditions.

"Just the kind of person you want to keep from getting their drugs,"
quipped Kristopher Hammond of Oliphant, Hammond, Atwell & Combs in
Steamboat Springs, Colo., who represented Nord.

Nord is registered with the state as a medical marijuana user, but the
drugs were still seized, even though he had shown police his registry
card when they came to his door with a search warrant, Hammond said.
People v. Nord, No. 03M616 [Routt Co., Colo., Co. Ct.].

Garrecht gave the county until Dec. 21 to return the drugs. Though a
first in Colorado, Garrecht's ruling is in conformity with the actions
of many judges in states such as California and Oregon.

"The police are good at enforcing the law, let's see how good they are
at obeying it," Hammond said.

Routt County Assistant DA Marc Kerry St. James felt compelled to fight
against returning the marijuana because of the conflict with federal
law, although his office supports the state's law, he said. The drugs
were seized by a joint local-federal task force. His office will not
appeal the ruling and will attempt to comply. However, the drugs are
in the possession of the federal Drug Enforcement Administration.

Lawyers asserted that turning seized marijuana over to federal
authorities has become a common tactic in evading state
compassionate-use laws.

A federal district court in California thwarted a similar tactic last
August. Marilyn Hall Patel, chief judge for the Northern District of
California, ruled that a federal seizure warrant was unlawful because
it contravened the orders of a state court that had disposed of the
property, which was in its control when it ordered the marijuana to be
returned to its owner. In re The Matter of the Seizure of
Approximately 28 Grams of Marijuana, 278 F. Supp. 2d 1097. A motion
for relief from judgment is pending in her court.

Federal law enforcement authorities have shut down all licensed state
marijuana distribution centers.

"The feds have attempted to close these kinds of centers," said Allen
St. Pierre, the executive director of the Washington-based National
Organization for the Reform of Marijuana Laws Foundation. "But they
continue to thrive in the underground in the states where voters have
cast their will."

This underground, unlike the for-profit underground, "exists just
barely below the surface because of societal acceptance at the
electoral level." He praised Matz for not being an
"automaton."

Tom Riley, a spokesman for the White House's Office of National Drug
Control Policy, defended federal law enforcement, but asserted that
there is "no benighted federal policy that refuses to look at the science."

Riley said the government supports clinical trials of elements of the
cannabis plant and noted that there are "scheduled" drugs available by
prescription derived from coca and poppy plants.

"But we don't let people grow their own poppies," Riley said. "I
question the wisdom of giving back a dangerous substance like
marijuana . . . a known carcinogen with serious addictive qualities."

The U.S. Supreme Court rejected state compassionate-use acts in U.S.
v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 [2001]. The court
held that even assuming that necessity was a recognized defense to a
criminal violation, a medical-necessity exception for marijuana was at
odds with the substance control act. That statute specifically lists
marijuana in a category that Congress determined had no medical
benefits warranting an exception, the court said.

Ronald Kaye of Pasadena's Kaye, McLane & Bednarski, attorney for Scott
Imler, 45, the Los Angeles Cannabis Resource Center's president and
founder, called his client's prosecution "politically motivated and
not locally driven."

Imler is the co-author of the California proposition that gave
official sanction to selling and growing marijuana for medical use.

"The city of West Hollywood lent them the money to buy the building
the center was housed in," Kaye said. Even the prosecution did not
"dispute that this was the most squeaky clean operation in the state."

The government has not yet decided whether it will appeal the
sentence, said Assistant U.S. Attorney Patrick Fitzgerald, the lead
prosecutor in the case.

John S. Martin Jr., a former U.S. district court judge and the former
U.S. attorney for the Southern District of New York, who claimed to
have imposed some of the "toughest sentences in the country,"
championed Matz's decision to depart from the sentencing guidelines
and grant probation.

"It is the prototypical case where departure is appropriate," Martin
said.