JUDGE NOT THAT YE BE NOT, CHUCK

In 1968 Charles Breyer, then a 26-year-old assistant district attorney in
San Francisco, wrote in a Harvard College alumni publication, "I am
fearlessly prosecuting flower children and other insidious threats to our
way of life." As if his self-deprecating irony could mitigate the cruelty
of his actions, as if he were just following orders as a young DA Today
Breyer, 61, is a bow-tie-wearing U.S. District Judge, and he's still in the
business of sending flower children to prison, and he still employs ironic
smiles, gestures, and intonations to imply that he's just following orders,
i.e., federal law, although now he's in a position to interpret the law and
breathe humanity and rationality into it, as we, the people of California,
tried to when we passed the medical marijuana initiative.

Last week Judge Breyer rejected motions to dismiss federal marijuana
cultivation charges against Ed Rosenthal, 58, who was providing cannabis
clones (starter plants of known potency) for sale to Bay Area patients and
caregivers entitled to grow their own under state law (Prop 215). Rosenthal
is the author and publisher of numerous books on marijuana cultivation and
related topics.

His column "Ask Ed" was a popular feature in High Times for many years, and
would still be running in its glossy pages, amidst the fake buds and fake
boobs, if Ed hadn't accused the lawyers who control the magazine of
embezzling profits that the deceased founder had willed to the employees.
But that's another story

Ed was busted by DEA agents at his Oakland residence in February '02, on
the same day that DEA Administrator Asa Hutchinson arrived in San Francisco
to address the Commonwealth Club. (What a coincidence!) He was charged with
cultivation of more than 100 plants, maintaining a place where illegal
drugs are manufactured (a warehouse in Oakland), and conspiracy to grow
more than 1,000 plants with Ken Hayes and Rick Watts, proprietors of the
Harm Reduction Center on 6th St. in San Francisco. Hayes split for
Vancouver and Watts was injured in a car crash, so Rosenthal is standing
trial by himself.

As we go to press on Tuesday Jan. 14 a jury is being selected in Breyer's
courtroom on the 19th floor of SF's federal building (with the judge doing
his utmost to exclude anyone who feels strongly about reforming the
marijuana laws). Opening arguments are set for Tuesday Jan. 21.

Rosenthal's main hope for a dismissal was based on the fact that his
grow-op had been authorized by the city of Oakland, whose City Attorney had
determined that the same section of the Controlled Substances Act that
makes it legal for undercover cops to obtain, handle, and sell illicit
drugs makes it legal for city officers to obtain, handle and sell cannabis.
The relevant section of the CSA, 885(d), states that "no civil or criminal
liability shall be imposed" on any state or local "authorized officer who
shall be lawfully engaged in the enforcement of any law or municipal
ordinance relating to controlled substances."

Judge Breyer, in granting the US Department of Justice an injunction
against the Oakland Co-op, ruled in September '98 that section 885(d) could
not protect deputized cannabis providers because to apply it thus would
violate the basic purpose of the Controlled Substances Act. Breyer seemed
skeptical that Rosenthal was not familiar with his ruling that section
885(d) didn't apply.

He seemed peeved that the defense lawyers kept citing it. He kept
referring to his draconian interpretation as "the common-sense reading of
the statute," but in fact it's a convoluted re-writing. Laws are supposed
to mean what they say. If Congress worded the CSA too loosely, Breyer
could and should kick it back to them for revision, meanwhile freeing Ed
and allowing Oakland and other California jurisdictions to serve as
"laboratories of reform" with respect to the earth-is-flat marijuana laws.

One of Ed's lawyers, Joe Elsford, reminded Breyer that the stated purpose
of the CSA was to promote the public health, and that Oakland's use of
section 885(d) was consistent with, not antithetical to the act. Breyer's
response a non-sequitur about "the supremacy of federal law" was delivered
with a smile of triumph, and for a second I could see a smart-ass in the
Harvard Freshman Union winning a verbal joust, not fair and square but by
resort to false logic, false facts, and false authority.

More Free Advice "Jury Nullification" is as awkward and un-sexy a term as
"Harm Reduction." And "the Fully Informed Jurors Association" sounds
self-congratulatory, to boot. FIJA and the movement it's trying to inspire
should refer to "Jurors' Rights," and the exercise of those rights should
be called "Jury Power." And God knows we need it.

Dr. Fry's DEA Registration Revoked (part 2)

The September 28, 2001 DEA raid on Mollie Fry and Dale Schafer's house in
rural El Dorado county could not have come at a worse time, says Dr. Fry.
"Dale was trying to learn to grow indoors.

It's almost impossible. You have to spend three hours a day every day
playing with the plants.

Ours got covered with spider mites and died. I had put them under the
deck, not under lights, figuring Dale would compost them. We had nine
plants growing for me, maybe four feet tall, in full bloom, and three
plants from a woman I knew, a legitimate patient, who was being evicted and
had asked Dale to take care of her plants for her. So we had 12 viable
plants, and two of them had toppled over in a windstorm so Dale brought
them into my bedroom to trim. It must have looked like a Christmas tree farm.

"And the house! At the time of the raid there was a mother and four
children living here, so things were a little disordered. We've had about
50 people living in our house over the years . When they handcuffed me I
put my hands above my head and said
'Thank you, praise you, thank you for
making my book a bestseller! Thank you, praise you for electing my husband
district attorney of El Dorado County!' The El Dorado cops were there and
the DEA. I must have prayed a 20-minute prayer.

They would ask me a question and I would answer yes or no and go right back
to praying. I needed help. And finally they went away. But I think [El
Dorado County DA Gary] Lacy got the word that Dale was really running to
win, and a few days after he was re-elected, we heard that he had gone to
the grand jury to get Dale indicted."

A DEA official sent Fry an order-to-show-cause dated March 7 '02 advising
that her prescription-writing privileges would be revoked because "It is
inconsistent with the public interest for a DEA registered practitioner to
live in a residence wherein large quantities of a controlled substance are
being stored, cultivated, manufactured and/or processed for distribution
and/or sale. In addition, it is inconsistent with the public interest for a
DEA registered practitioner to be engaged in the illegal sale of a Schedule
I controlled substance such as marijuana at the practioner's registered
location." The notice gave Fry 30 days to request a hearing to defend herself.

Fry hired a San Francisco lawyer named J. David Nick to represent her. He
apparently missed the 30-day deadline.

A letter to Fry dated Dec.13 revoked her DEA license, noting that she
hadn't responded to the original order to show cause and expanding the list
of her alleged failures to comply with federal law. (Nick has not returned
calls requesting his side of this fiasco.) Fry says that the revocation
will have a significant impact on her practice because a surprising number
of her patients prefer Marinol to the crude plant. "Especially the chronic
pain patients," says Fry. "I started out not wanting to prescribe any
pharmaceuticals, but quite a few people really love Marinol. It's hard to
say how many, because it's so expensive [about $10/pill]. So unless they
have the right insurance . All my Kaiser patients have to decline it
because Kaiser will not pay for it. All my Welfare patients have to decline
it, and I have quite a few, because I give massive discounts.

I thought the whole idea was that it's not medicine for the rich, it's
medicine for the sick."

Fry has now hired Nedra Ruiz to argue to the DEA that it would be
"arbitrary and capricious" to revoke her prescription privileges without a
hearing. "Dr. Fry has never been convicted of any offense, state or
federal," says Ruiz. "Usually when people have their privileges revoked
they've entered a plea or been found guilty of something, or a serious
narcotic is involved In this case some undercover agents claim that Dr.
Fry told them where they could get a discount on materials to grow
marijuana. That kind of hearsay statement, unchallenged, is the basis for
their action."

Ruiz intends to argue that Fry's activities were legal under state law, and
that "it would be a gross violation of her right to due process to not
grant her a hearing." A negative ruling will be appealed to the Ninth
Circuit Circuit. "She will have an opportunity to refute the claims that
she is recommending marijuana without conducting
proper examinations," says Ruiz.

On Friday, Jan 3, state Medical Board Investigator Tom Campbell left a
message on the answering machine. Mollie paraphrases it as, "Heads-up to
Dale. We've referred a couple of the cases over to the Attorney General's
office, and we're going to be reviewing some more." Fry thinks that DA
Gary Lacy sought the medical board investigation. "Every patient I've been
asked about by the medical board has passed through the criminal justice
system in either El Dorado or Sacramento County," Fry points out, "and the
complaints all came from district attorneys, not the patients themselves."

Dale is thinking of enjoining the Medical Board from making any moves
against Mollie's license on the grounds that Prop 215 says, "no physician
in this state shall be punished, or denied any right or privilege, for
having recommended marijuana to a patient for medical purposes." Fry's
practice has dwindled to an estimated 100 patients/month, most of them
seeking re-certification. Her physician's assistant is in training to
become a paramedic fireman and she hasn't found a longterm replacement
because, she says bluntly, "everyone is scared." Last year she and Dale
paid $3,000 in taxes, mostly in self-employment tax. They're in debt and
have raided the kids' college fund and can barely cover their bills.

Rekoon v. Mikuriya

This is how Barry Rekoon, the San Mateo lawyer who subpoenaed Tod Mikuriya
costing the Berkeley psychiatrist a morning's worth of consultations
rationalized his decision not to pay expert-witness fees: "I'm only going
to ask him a question or two to confirm that he wrote the letter of
recommendation." Your correspondent asked Rekoon, "What if the prosecutor
asks the doctor questions that call for expertise like how he made his
diagnosis?" Rekoon replied that he would object on grounds of relevance and
would be sustained "without a doubt." As it turned out, THM drove down to
San Mateo Jan. 3 to testify that he had indeed approved the cannabis use of
Robert Whitacre, a 52-year-old man with a bad back. Rekoon asked 14
questions, after which Assistant DA Morris Maya asked 51 questions on
cross-examination, delving into every aspect of Mikuriya's diagnosis and
practice (over Rekoon's one futile objection). Rekoon then asked two more
questions on re-direct, and Judge Mark Forcum asked three of his own,
ending with "Would marijuana help my acid reflux condition?" Mikuriya
restrained an impulse to advise the judge to limit his alcohol
intake... Judge Forcum expressed strong disapproval of the law created by
Prop 215 "I don't like it. It invites people who have marijuana addiction
to claim they're using it as medicine.

It really troubles me that, in a case like this there's no way to know if
the cultivation was for personal use or selling it " Robert Whitacre was
busted by the San Mateo sheriff for cultivating two (2) plants! Judge
Forcum said he was reluctant to assume that Whiteacre was growing for
personal use, but that he had to, under the law, and given Mikuriya's
testimony, and so he had to acquit. But the Department of Corrections
decided to imprison Whitacre for six months for violating the terms of his
parole, and so the poor man was led off by a bailiff while the judge
commented, "Your attorney did a nice job." It's no coincidence that San
Mateo DA George Fox was a leading opponent of Prop 215. A young assistant
DA dragging Dr. Mikuriya into court and conducting a somewhat insulting
cross examination knows he's looking good in his boss's eyes... The three
cases on Judge Forcum's calendar preceding Whitacre all involved violations
of the drug laws.