UP IN SMOKE

Ventura couple gets burned in crossfire between state and federal
medical marijuana laws

Lynn and Judy Osburn were preparing for a day of working with their
horses on September 28, 2001, when they heard the deep thump of a
helicopter suddenly shattering the silence of the Ozena Valley. A line
of 15 unmarked SUVs and one Ventura County Sheriff's car pulled up to
their horse gate as their four dogs exploded in furious barking and
horses scattered through the sage scrub in a panic.

The Osburns knew instantly what was going down. Every county and
federal official from Ventura to downtown L.A. knew they grew
marijuana; the Osburns had met with them and discussed it openly.
Somewhere on the property was allegedly a field of 270 tall, stinky
plants about ready to harvest. Lynn, 53, and Judy, 50, gathered
themselves, then stepped out of the cabin-style home they'd built
themselves and into the brilliant mountain light, hands high so no one
would have any reason to shoot.

"Their lead investigator told us they didn't want to be there," says
Lynn, sitting at his kitchen table. "They had argued for a long time
with their superiors that this wasn't what they should be doing. They
were very apologetic. It was a very strange occasion."

Under California state law, the Osburns' bumper weed crop was
perfectly legal. They were the state-approved growers for the Los
Angeles Cannabis Resource Center (LACRC), a West Hollywood medical
marijuana co-op operating legally under Prop 215, the Compassionate
Use Act of 1996, which legalizes the use of pot as
physician-prescribed medicine. The dope cultivated by the Osburns
would relieve the symptoms of 960 registered patients in L.A., who
used it to treat the wasting associated with AIDS, chemotherapy
nausea, chronic pain and glaucoma, among other conditions.

But the agents who poured out of these vehicles, some dressed in
camouflage and many wearing ski masks, weren't bound by state law.
They were mostly L.A.-based agents of the US Drug Enforcement
Administration (DEA). Under the federal Controlled Substances Act, pot
is a Schedule 1 narcotic, which is defined as having "no medicinal
use." Therefore, in the Twilight Zone that is the federal bureaucracy,
medical marijuana doesn't exist. They had a warrant from the US
Attorney's office in L.A.

Since 2001, the Bush Administration--U.S. Attorney General John
Ashcroft, Drug Czar John Walters and ex-DEA director Asa Hutchinson,
in particular--have openly defied the sovereignty of California voters
by raiding pot co-ops and making selective arrests of 40 medical pot
users and growers. They have gone after the highest-profile
individuals, including many who worked to pass the original ballot
initiative. Some have been sent up on federal prison sentences as long
as 10 years. The Osburns were just such a catch: they had been the key
organizers of Prop 215 support in Ventura County.

"This is their strategy, and I think it's backfiring," says Hilary
McQuie of Americans for Safe Access, a pro-medical marijuana group.
"Every one of these cases is demoralizing to the DEA, and builds up
public sentiment against them."

This new crackdown, which has isolated the DEA from local cops and
splintered local drug task forces across the state, has now made pot
into a conservative issue. President Bush, who campaigned on a
pro-states' rights agenda concerning potentially racist matters like
flying the Confederate flag over the South Carolina statehouse, or
local environmental control, has reversed his tack and increased
federal power in order to fight voter-approved marijuana. Medical pot
is legal in some form in nine states, but only California activists
have been the victims of the administration's moral agenda.

The states' rights implications of this assault have now greatly
overshadowed Ashcroft's constant crowing about the need to be strong
in the twin wars against drugs and terrorism. An unlikely coalition of
staunch conservatives and outraged liberals have backed new
legislation in Congress to address this conflict: House
Representatives Ron Paul [R-TX] and Dana Rohrabacher [R-CA] are
actively supporting Representative Barney Frank's newly-renamed
States' Rights to Medical Marijuana Act (HR2233), a version of
pro-medical pot legislation that Frank has introduced every year since
the early 1980s. It has never even moved to committee, much less to a
vote, but the states' rights conflict gives new urgency to the bill,
now with 21 sponsors, which seeks to re-schedule marijuana to include
medical use in the U.S. Controlled Substances Act.

"Do states have the right to set their own policies regulating medical
marijuana? For those who still believe states have rights under the
Ninth and Tenth amendments, the answer is clearly yes," Paul said in a
statement. "For too long the federal government has used the 'War on
Drugs' as justification for pre-empting more and more state criminal
and regulatory laws."

Special Agent Richard Meyer, spokesman for the DEA in San Francisco,
says he welcomes some kind of reconciliation of the legal impasse. "We
are all for that. We hope there is some type of agreement," he says.
"In the meantime, we have to enforce the laws of the land."

It would be over a year before any charges would be filed against the
Osburns. But in the fall of 2002, they were busted again for allegedly
growing 35 plants for medical use. This time L.A.-based U.S. Attorney
Patrick Fitzgerald threw the book at them, prosecuting for both raids.
Their case goes to trial this fall, where a conviction could mean 40
years in prison, and possibly the forfeiture of their 60-acre ranch.

They're hoping to go all the way to the U.S. Supreme Court and settle
this matter once and for all: are states truly free to make their own
law and police their own population, as the constitution clearly
guarantees? Or does this power rest in the hands of a few appointed
federal chiefs who set the nation's moral agenda?

"We think the DEA will keep going after these cases as long as they
are ordered to from Washington DC, and as long as they get
convictions," the couple wrote via email from their home.

So why not go to court and argue that they were operating legally
under state law? This raises an infuriating consequence of the federal
refusal to accept medical pot: under a May 2001 U.S. Supreme Court
ruling, no mention of Prop 215, medical use of pot, or what is called
a "medical necessity" defense is allowed in federal cases such as that
of the Osburns. This makes medical marijuana users and growers sitting
ducks, as prosecutors use their openness in complying with state laws
against them--producing their weed, plants, prescriptions, medical
records and distribution documents as irrefutable proof of guilt.
Juries are forced to convict, even when it goes against their conscience.

U.S. District Court Judge Charles Breyer was among the first to apply
the ruling during the early 2002 trial of weed guru and popular High
Times columnist Ed Rosenthal, who was growing marijuana as an officer
of the city of Oakland, California. Breyer expressly forbade
Rosenthal's attorneys to present medical marijuana information to the
jurors in any way, and interviewed 80 potential jurors before finding
a dozen who knew nothing about Proposition 215. Rosenthal was
convicted, but jurors were in an uproar about not being told the whole
truth about the case. Their angry response to the court caused Breyer
to waive Rosenthal's sentence, though his conviction stands.

Similar cases have spawned another new piece of legislation that is
crossing party lines to protect states' rights. The Truth in Trials
Act (HR1717), introduced into congress by Rohrabacher and Sam Farr
(D-CA), would allow for the inclusion of information about Prop 215
and medical marijuana into federal trials. Lynn and Judy Osburn hope
it comes up for a vote in time to affect their case, but Judge A.
Howard Matz, who is presiding, has already announced that he is
observing the "no-215" restrictions.

California Attorney General Bill Lockyer originally voted for 215
because he felt it was humane policy, but his mandate under the
proposition puts him in a clash with the feds. After a 2002 Santa Cruz
bust of an organization regarded as the most refined model for medical
marijuana distribution in the state, Lockyer fired off a terse letter
to then-DEA chief Asa Hutchinson.

Calling the raids "harassment," Lockyer went on to deliver a complaint
that still echoes the frustrations of many in the state and congress:
"While I am acutely aware that federal law conflicts with California's
on this subject and needs to be reconciled, surely an Administration
with a proper sense of balance, proportion and respect for states'
rights could and should reconsider the DEA's policy and redirect its
resources to concentrate fully on the priorities we share: the
destruction of criminal narcotics organizations, the interruption of
commerce in drugs far more dangerous than marijuana, and choking the
flow of drug money to terrorists."

The Osburns' lawyer, William Panzer, feels his clients will lose their
case, but they're leaning into the appeal. "So far, every judge in the
federal system in this state has toed the Breyer line," says Lynn. "As
long as no one gets a defense, it gets very hard for the jury to
acquit. And they continue to terrorize sick people who should be
protected under state law. Because the United States Supreme Court has
not declared Prop 215 unconstitutional at all."