MEDICAL MARIJUANA TRIAL MOVES FORWARD

VICTORVILLE - A jury should determine whether the county and a sheriff's
detective must reimburse a pair of medical marijuana advocates whose plants
and growing equipment were destroyed after a raid on their home, a court
commissioner ruled this week.

Gary Barrett, 34, and Anna Barrett, 31, filed their lawsuit against San
Bernardino County and Detective Mike Wirz on Oct. 10, 2001, about two years
after they were arrested for cultivation of marijuana in Victorville.

Superior Court Judge Stephen Ashworth ordered the Sheriff's Department to
return the couple's growing equipment and other seized property except the
marijuana in April 2001, but by then, most of the items had been destroyed
in accordance with another judge's order, according to the lawsuit.

The couple, who both have a doctor's recommendation to use marijuana
as required by Proposition 215, want about $300,000 in damages for their
lost pot, growing equipment and personal property, their attorney Daniel B.
Halpern of San Jose said.

"Someone is responsible here, whether it's Detective Wirz or the county,"
Anna Barrett said Thursday. "It was so hard, at that time, to find medical
marijuana of that grade."

Attorney Teresa McGowan, who is representing the county and the detective,
motioned to have the lawsuit dismissed during a hearing Wednesday,
claiming, among other things, that the marijuana and equipment was lawfully
seized with a search warrant and destroyed by court order, according to a
motion for summary judgment.

"Detective Wirz cannot be tortuously liable for the destruction of
marijuana that he was ordered by law to destroy," McGowan wrote in her
motion. "Since Detective Wirz is immune from liability, the county of San
Bernardino cannot be held responsible either."

But Commissioner Kirtland Mahlum on Wednesday ruled the case deserved a
jury trial and set a tentative trial date in November, Halpern said.

The case is likely to set a legal precedent in the county unless McGowan
appeals Mahlum's ruling and succeeds in having the lawsuit dismissed, the
attorney said.

Halpern said other courts and law enforcement agencies in the state have
already returned pot confiscated from legitimate medical marijuana
patients. "We've got to get some pressure put on them, and maybe they'll
start doing the same thing," Halpern said.

McGowan and Deputy County Council Dennis Tilton, who also represents the
Sheriff's Department, did not return phone calls seeking comment Thursday.
Wirz, who was transferred from narcotics to the Fontana sheriff's station,
was not available for comment.

The Barretts' legal troubles began in June 1999 when sheriff's deputies
raided their home and confiscated 57 marijuana plants, growing lights,
scales and other property, according to the lawsuit.

About a month later, Gary Barrett filed a motion seeking the return of the
pot and property because the District Attorney's office had not filed any
criminal charges against him or his wife, but a judge dismissed the motion
without prejudice, which left the door open for the couple to try again,
Halpern said. The Barretts pleaded guilty to cultivation of marijuana in
July 2000 in a plea agreement that put them on probation for three years
and allowed them both to possess 35 flowering marijuana plants for
medicinal use.

Gary Barrett went to Sheriff's Headquarters in San Bernardino after
Ashworth ordered the growing equipment and other property returned.

Wirz gave him a sealed box containing marijuana cultivation books,
packaging material and a handgun seized during the raid and asked him not
to open it until he left, according to the lawsuit.

"Gary feared that Detective Wirz had intended to snare Gary into possibly
violating his probation by possession of a handgun," the lawsuit states.
"Gary explained his concerns to the Sheriff's Department and surrendered
the firearm for destruction to Sheriff's Deputy Valencia on June 13, 2001."

Gary Barrett said he used marijuana to help kick a heroin habit and also
uses it to battle pain from Crohn's disease, a painful digestive tract
disorder. His wife uses pot to treat chronic pain she has suffered since a
fall from a five-story ledge in 1995.

California voters passed Proposition 215, also known as the Compassionate
Use Act, in 1996, allowing people to use marijuana for medicinal purposes
with a doctor's recommendation.

Voters in other states including Arizona, Nevada, Washington, Alaska and
Oregon have passed similar measures.

Federal authorities assert that all of the initiatives are invalid because
marijuana is a so-called Schedule I drug and has no medicinal value.