POT PROSECUTIONS

Rosenthal Is Set Free, but Doctors Are the Next Target

While medical marijuana grower Ed Rosenthal won his fight with the feds last
week, California doctors who recommend cannabis under Proposition 215 (the
California Compassionate Use Act) say they have become the next target of
the crackdown on those who support the right to use the drug. Unlike
Rosenthal, who was prosecuted by U.S. government attorneys, doctors say they
are being harassed by state and county officials who conspire with federal
authorities to undermine California's medical marijuana law.

Police, sheriffs, and prosecutors throughout California have brought
complaints against at least nine doctors, who are being investigated by the
state Medical Board. Together, these physicians are responsible for writing
more than half of the estimated 50,000 medical marijuana recommendations in
California. According to the doctors, not one of the investigations has been
triggered by a complaint brought by a patient, a patient's family, or health
care professionals.

Medical Board representatives didn't return our calls seeking comment on the
investigations. But according to O'Shaugnessy's, a medical cannabis research
journal, the Medical Board is actively investigating complaints against
doctors David Bearman, Frank Lucido, and Marian Fry. Investigations
involving doctors Tod Mikuriya and William Eidelman are pending with the
state Attorney General's Office. Complaints against doctors Stephen Ellis
and Mike Alcalay have been dismissed. And two others, Robert Newport and
Stephen Banister, are on probation.

On June 4 Rosenthal received a one-day sentence for growing medical cannabis
because the judge found he had a reasonable, though erroneous, expectation
that an Oakland city ordinance immunized him under federal law. The doctors
under investigation also assumed they were protected by a provision in Prop.
215 that asserts, "No physician in this state shall be punished, or denied
any rights or privilege, for having recommended marijuana to a patient for
medical purposes."

Lucido says only about 15 doctors in the entire state have felt safe to go
public with their medical cannabis recommendations, including the nine that
have been investigated. He says doctors at Berkeley's Alta Bates Summit
Medical Center and San Francisco State University's student health services
told him they were reluctant to recommend marijuana for fear of being
scrutinized.

"The investigation of doctors has had a chilling effect on their willingness
to even consider performing an evaluation for medical cannabis," Lucido
said.

The investigation of Fry illustrates why doctors feel betrayed by local law
enforcement. In September 2001 an informant alleged that Fry and her
husband, Dale Schafer, were selling marijuana out of Schafer's law office in
Cool. Schafer says the El Dorado County Sheriff's Department knew they were
growing a handful of marijuana plants to ease the pain and nausea associated
with the treatment of Fry's breast cancer. Yet the sheriff sent in a SWAT
team, which included agents from the Drug Enforcement Agency, and held Fry
and one of her children at gunpoint while officers seized almost 6,000
patient records.

No charges were filed, but the DEA threatened to indict the couple on
conspiracy charges because Schafer taught patients to grow marijuana. In
2002 prosecutors in three counties brought 23 complaints against Fry for
improperly recommending cannabis, three or four of which were investigated
by the Medical Board. Schafer says federal investigators told him that if he
pleaded guilty to conspiring to grow 99 plants, they would leave his wife
alone.

"I told them which cheek to kiss first," Schafer said.

Mikuriya says that local officials in Sacramento, Nevada, Placer, and
Humbolt Counties are also targeting doctors and patients and that the state
is doing nothing to protect them. "We have no reason to believe that law
enforcement is abusing their authority," said Hallye Jordan, a spokesperson
for state attorney general Bill Lockyer.

Mikuriya's attorney, Bill Simpich, says the harassment of doctors is part of
an organized plan that went into effect before Prop. 215 even passed.
According to Schafer, the core of resistance lies in the California
Department of Justice's Bureau of Narcotic Enforcement and the California
Narcotics Officers Association, one of the largest providers of law
enforcement training in the state.

Robert Elsberg, past president of the CNOA, is listed on the BNE Web site as
a senior special agent in charge of the BNE's San Francisco office. Elsberg,
who is now retired, says many law enforcement agents believe Prop. 215 is
abused by patients and doctors. He says officers are often taunted by people
with minor medical conditions who are protected from prosecution.

"They have a real recommendation, but apparently they went to their friendly
doctor and were able to have him give them a recommendation for a baseball
injury and they ultimately laugh about it," Elsberg said. "We are not
talking about the sick and dying; we are talking about a group of people
where even if [medical marijuana] works, they don't need it."

Mikuriya, a Berkeley psychiatrist, was forced to turn over 47 patient
records last year, 17 of which are under investigation. He says a typical
case involves local prosecutors who lost a cultivation case against a
patient and then made a complaint to the Medical Board.

Jordan denied that board investigations target doctors who recommended
cannabis.

"They don't have anything to do with medical marijuana," Jordan said. "These
[investigations] are dealing with a lack of providing adequate screening,
diagnosis, and medical care."

But Mikuriya points out that the Medical Board has never defined a standard
of medical practices for evaluating medical cannabis patients, leaving
doctors vulnerable to prosecution and investigations. He submitted proposed
standards of care in March to the Medical Board but received no response.
Mikuriya than sued the board for violating doctors' immunity under Prop.
215.

"Right now we have functional anarchy, with peace officers and local police
chiefs making it up as they go, so patients are at risk," Mikuriya said.

Jordan claims Lockyer lacks the legal authority to mandate statewide
standards that could rein in federal agents and rogue cops. She says he
would rather wait for legislation or let community standards prevail. "These
people are corrupt," Rosenthal said. "And if Lockyer doesn't stop it, it
could threaten his bid for governorship."