MAKES NO SENSE AT ALL

No medical marijuana activist could have foreseen that Proposition 215
- - the 1996 ballot measure that gave California residents the right to
grow and distribute marijuana for use with a doctor's prescription -
would have led to this moment. Ventura County residents Lynn and Judy
Osburn, a married couple who grew pot for AIDS and cancer patients at
the Los Angeles Cannabis Resource Center, stood before U.S. 9th
Circuit Judge Howard A. Matz on October 7. Their faces were brave, but
their voices were barely audible. As Judge Matz led them through a
series of questions to determine whether they understood the
consequences of their actions, the Osburns each pled guilty to federal
felony drug charges.

"Do you think the government is taking unfair advantage of you by
accepting this plea?" Judge Matz asked, rifling through papers.

Taking a long pause, Lynn Osburn, 54, stepped to the microphone,
looking like another downtown office denizen with his short gray hair
and gray suit, and muttered, "No, sir."

In a long, withering exchange, the Osburns gave up their rights to
silence, to vote, to be licensed contractors, to even be teachers,
their activist spirits clearly balking with every response. They had
little choice. Under 9th Circuit evidentiary rulings, they were almost
guaranteed to be convicted and receive 10-year minimum sentences for
"Maintaining a Place for the Manufacture of Marijuana."

Plus, there was something greater at stake. Their plea agreement
allowed them to appeal not only the evidentiary rulings but also
federal standing in medical marijuana cases. A positive ruling on one
of these appeals could not only vacate these sentences, but might
resolve the complete disconnect between California law under Prop. 215
and federal law, which does not recognize medical use of marijuana.
The Bush administration has used this discrepancy to raid and
prosecute scores of medical-marijuana patients since 2001.

In a related decision, the U.S. Supreme Court refused last week to
review a 9th Circuit Court of Appeals ruling that doctors were free to
discuss medical marijuana with their patients. Since the Clinton
administration, the U.S. Dept. of Justice has threatened to prosecute
doctors who issued prescriptions under Prop. 215. Dr. Marcus Conant, a
leader in AIDS treatments in San Francisco, led the American Civil
Liberties Union to challenge this government strategy in 1997. The
U.S. Supreme Court's refusal to hear Conant vs. Walters effectively
restores doctors' First Amendment right to speak freely with their
patients.

The Osburns hope their case leads to such a decision, but it will be
years from now.

"This is one of the hardest things I've ever done, giving up my rights
to a trial by jury - my attorney and I were both on the verge of
tears," said Judy Osburn, 50. "We both so wholeheartedly believe and
are so grateful to live in a country where you have a jury that would
interject common-sense judgment of the community into this proceeding.
However, under these circumstances, they would have never known the
truth."

The Osburns' remote Ventura County ranch was raided three times by
U.S. Drug Enforcement Administration (DEA) agents - in 2000, 2001, and
2002 - allegedly netting a reported 342, 273, and 35 large marijuana
plants, respectively. In 2000 and 2001, the Osburns were permitted
growers for the Los Angeles Cannabis Resource Center, operating openly
with the full cooperation of Ventura and L.A. County Sheriffs, local
legislators, and health officials. The plants seized in 2002 were
allegedly for personal use.

None of this information would have ever reached a jury. As in several
high-profile cases already considered by the 9th Circuit, including
the case of Oakland city deputy and High Times writer Ed Rosenthal,
Matz ruled that no mention of medical marijuana would be allowed in
the court. Under the U.S. Controlled Substances Act, marijuana is
listed as a Schedule 1 narcotic, a federal category for drugs with no
recognized medical use.

Marijuana's medical uses have now been recognized by the legislatures
of 26 states and the District of Columbia. Eight of these states have
legalized its medical use.

This impasse has put both medical-marijuana advocates and the courts
in an untenable position. When Rosenthal pled guilty to his charges,
9th Circuit Judge Charles Breyer sentenced him to one day, and let him
go for time served. The Osburns won't get off that easily, as the
pleas' sentencing guidelines suggest a 37-month prison term. Though
medical-marijuana advocates celebrated the sentence as a victory, the
Rosenthal verdict also did nothing to stall the DEA's continued raids
and prosecutions.

In a case similar to the Osburns', Victorville, California, residents
Gary and Anna Barrett were busted by San Bernardino County Sheriffs in
June 1999 for possession of marijuana plants, and, because of Prop.
215 and a doctor's prescription, were placed on probation but allowed
to keep the plants as medicine. The DEA however, raided them in May
2003, and U.S. Attorneys are now prosecuting. This is one of many such
cases.

In allowing the Osburns to keep their constitutional and evidentiary
appeals, both Judge Matz and the U.S. Attorney's office seem to have
helped move these decisions to a higher court.

"It is fairly unusual," says William Panzer, a well-known trial
attorney who represents medical-marijuana defendants and is
representing Lynn Osburn. "In most federal cases, it's more common
that the plea agreement includes a waiver of the appellate rights.
We're maintaining all appellate rights.

"We filed motions challenging the constitutionality of the Controlled
Substances Act, as applied to this case, under the Commerce Clause,"
he explains. The federal government routinely assumes the right to
prosecute drug cases as part of its mandate to regulate interstate
commerce. "We also filed motions based on Due Process, the Fifth
Amendment, no rational basis for the scheduling of cannabis as
Schedule 1, and some other constitutional arguments. And we're going
to be able to argue all of those upstairs at the court of appeals."

"It's actually not that unusual," says Thom Mrozek, spokesperson for
the U.S. Attorney's office in Los Angeles. "In some cases, we
structure plea agreements conditional on them exhausting their
appeals. It's not common, but it certainly does happen in areas where
you have new laws, some novel factual status, or in this case, people
who are challenging whether or not the federal government has the
ability and right to prosecute these types of cases under Prop. 215."

"People on both sides like to see clear rules," counters Panzer. "I
respect the U.S. Attorneys in this case, that they were willing to
work together to fashion a plea that basically gets their job done and
leaves those issues that weren't really their issues, allows them to
proceed to the court of appeal."

Mrozek says, however, that the U.S. Supreme Court has ruled that Prop.
215 cannot supersede federal law. "The federal government doesn't view
this as a conflict," he says. "I have no idea what they are claiming,
but if they think there is a new legal challenge in this case, then
we're letting them present that appeal to the higher court."

Standing at the bar just after the hearing, Lynn Osburn was somewhat
less than thrilled. "Judge Matz, he's not a bad guy; I think he's
feeling constrained by 9th Circuit precedent, too," Osburn said. "But
this is very frustrating, to stand there taking the plea, agreeing to
give up my rights to a trial when they know damn well - the prosecutor
and the judge are sitting right there looking at me knowing that they
are the same people who barred me from having any defense."

Judy Osburn is taking the long view. "This is a very important
policy-setting ruling, as far as what we've been doing to make it safe
for other Californians who are complying with the state law to avoid
prosecution. Whereas an acquittal for ourselves wouldn't have changed
that."