MD. STARTS TEST RUN OF MEDICAL MARIJUANA

New Law's Reach An Open Question

Silver Spring lawyer Jonathan L. Katz considers it a defense
attorney's dream: A Maryland law taking effect today allows anyone
convicted of possessing marijuana to argue for a drastically reduced
sentence if the drug was used for medical purposes.

"How many people out there don't have any kind of physical pain that
marijuana might alleviate?" asked Katz, who specializes in defending
people charged with marijuana-related offenses. "People with sports
injuries and back injuries. For people with asthma, marijuana can help
breathing. For anorexics, it can help stimulate the appetite. There
are a whole bunch of people who like marijuana who can now try to use
this defense."

Prosecutors say they are a bit nervous, noting the law lacks language
defining just who can use the defense and how a judge should interpret
it.

"All I can assume is now we will have defendants come into court with
the health section of High Times [magazine] and try to tell me Timothy
Leary prescribed use of this," said Harford County State's Attorney
Joseph I. Cassilly (R).

Maryland's unique approach to medical marijuana -- reducing penalties
for possession rather than actually legalizing the drug -- is being
watched by other states as a possible model for how to handle the
prickly issue.

The first-if-its-kind legislation has also drawn the attention of the
White House, which lobbied hard against it and of a national marijuana
advocacy group, which argues the measure does not go far enough.

Locally, though, doctors, lawyers and judges wonder how the law will
play out in county courthouses and state appellate courts.

The General Assembly's intent was clear last spring when it approved
the bill, a compromise between lawmakers who wanted to show compassion
for people with severe illnesses and those who wanted to prevent
outright legalization.

Legislators spoke of friends and relatives who had depended on
marijuana to ease the pain of cancer and other diseases. Some recalled
the case of Kathleen Maria "Kitty" Tucker, who was arrested for
growing marijuana in her Takoma Park home four years ago. A judge
would not let her argue that she used it to relieve fibromyalgia, a
disorder that causes muscle pain.

"I could not bring any of that evidence forward," said Tucker, who was
sentenced to six months' probation and a $500 fine after she agreed to
a plea bargain. The judge later agreed to strike the conviction from
her record if she completed probation.

The new law limits the fine for marijuana possession to $100 if the
defendant can prove that the drug was used as a medicine. Otherwise,
the defendant could be fined as much as $1,000 and spend one year in
jail.

Although the measure instructs judges to consider "medical necessity"
before sentencing, it does not specify what illness a defendant must
have or what evidence the defense needs to produce to argue the case.
It doesn't differentiate between people with physical or psychological
conditions.

"This is somewhat open-ended," said former Republican state delegate
Donald E. Murphy, who lobbied for passage of the legislation. "It
really leaves it up to the judge's discretion."

Katz said defense lawyers would constantly test the law's reach. They
would be neglecting their clients if they did not try to find out what
"physical, emotional or psychological pain" causes them to use the
drug. "Sometimes people are self-medicating without even realizing
it," he said.

He said he expects to call doctors to testify about how marijuana can
help some patients.

T. Michael Preston, executive director of the Maryland State Medical
Society, said his organization recommends against such testimony
because federal law prohibits doctors from prescribing the drug.
Federal authorities have threatened to revoke the medical licenses of
doctors who recommend marijuana to their patients.

James N. Vaughan, chief judge of the District Court of Maryland, which
hears most marijuana possession cases, said he has seldom heard the
medicinal-use defense in his courtroom and doubted that defendants
would go through "some great, elaborate ruse" for an offense that
carries a fairly light sentence.

In 2001, 17,676 people in Maryland were charged with possessing
marijuana, according to FBI statistics. Since the mid-1990s, some have
argued in court they used the drug as medicine.

In 1995, an HIV-positive farmer from Charles County was charged with
possessing 10 grams of marijuana with intent to sell it. Jerome Edward
Mensch, who was then 43, argued that he needed marijuana to counteract
the side effects of prescription drugs.

After a legal tussle, a Circuit Court judge ruled that Mensch could
make the argument to a jury, though he ultimately pleaded guilty and
was sentenced to probation.

Four years later, Tucker was denied the right to make the same
argument in Montgomery. Tucker said she hopes that the new law will
"offer some relief" to people who use the drug as medicine but worries
that it does not go far enough.

Allen St. Pierre, executive director of the National Organization for
the Reform of Marijuana Laws, said he, too, is concerned that
Maryland's law is too vague and confusing to be effective. The bill
that passed the General Assembly is is much different from the
original, which would have created a closely supervised program and
provided terminally ill patients with permits to possess as much as
three ounces of marijuana.

Del. Joseph F. Vallario Jr. (D-Prince George's), chairman of the House
Judiciary Committee, rewrote the bill because he worried that it
violated federal laws banning marijuana possession.

Del. Anthony J. O'Donnell (R-Calvert), House minority whip, said the
final version has "many potential flaws" because the state was trying
to pass a law that could stand up to federal scrutiny. "It was a very
good attempt to address the situation, but the fix is not at the state
level. The federal government has to change the federal law so medical
marijuana can be prescribed," O'Donnell said.

But the Bush administration has been stepping up the pressure on the
nine states that have legalized medical marijuana. In those states,
qualified patients can possess the drug without risk of prosecution
under state law, although possession remains a federal crime.

The White House lobbied Gov. Robert L. Ehrlich Jr. (R) to veto the
Maryland legislation last spring. Ehrlich refused and became the first
Republican governor to sign a medical marijuana bill.

Montgomery County State's Attorney Douglas F. Gansler (D) said he
hopes that terminally ill patients will never have to plead their
cases in court.

"The bill does send a message to prosecutors and the law enforcement
community that if someone is possessing marijuana, and doing so
legitimately for medicinal purposes, then perhaps that is not where
the resources of the law enforcement community ought to be
implemented," Gansler said.