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Questions Cloud Medical-pot Law

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Monica Ginn, a 53-year-old Olympia woman, believed she had her
doctor's blessing to legally use marijuana to relieve chronic back
pain. But last week, a Thurston County judge barred her from
presenting a jury with evidence that she qualified under the
medical-marijuana law passed by voters in 1998.

She went to trial essentially without a defense and was convicted of
possession and distribution of marijuana. Now, she faces up to five
years in prison.

The case is the latest in a string of arrests, pending prosecutions
and convictions of patients who claim to be legally qualified to use
marijuana as medicine under Washington's law.

For lawyers who defend these patients, the sentence facing Ginn has
pushed them over the edge. They insist the law must be clarified and
have begun work on a petition for direct review, asking the Washington
State Supreme Court to end the confusion.

The law says patients with certain qualifying conditions, including
"intractable pain," can possess a 60-day supply of marijuana if they
have valid documentation, including a statement signed by their
physician specifying that the benefits of marijuana would likely
outweigh its risks for that patient. The law also says a person acting
as a caregiver for one qualified patient can possess marijuana.

Suzanne Lee Elliott, a Seattle appellate specialist, said the petition
for review will include Ginn's case, as well as recent convictions in
Skamania and Stevens counties. Among the questions she hopes the court
will answer: What exactly must a doctor do to diagnose a patient with
a qualifying condition? What documentation will actually protect
patients? Must the doctor have particular qualifications? How should a
60-day supply of marijuana be determined?

Elliott said defense lawyers have found that when patients try to use
the medical-marijuana defense, "judges don't know how to do it." In a
number of cases, patients such as Ginn have not been allowed to
present evidence to juries that they are legal users of marijuana
under the law, which speaks of "humanitarian compassion."

Under its guidelines, the state Supreme Court can directly review
cases dealing with issues of "substantial public importance," Elliott
said, without waiting for them to grind through the appeals process.
"Obviously, (this law) is causing some consternation," she said. "I
think a showdown is in the offing. We need uniformity."

Kevin Johnson, Ginn's lawyer, agreed. "The court is just going to have
to straighten this out," he said. "The people of the state of
Washington said people with debilitating diseases can use marijuana."

It rankles Ginn's lawyers that the jury was never able to hear the
argument that Ginn had a medical reason for growing 23 plants and
using the marijuana.

Thurston County Judge Thomas McPhee, in the ruling excluding Ginn's
medical defense, said the doctor hadn't proved Ginn had "intractable
pain," a qualifying condition under the law.

The law, McPhee told her lawyers, "requires more" about Ginn's
condition than had been presented to him.

"It is not sufficient, in my estimation, for a doctor simply to take a
self-reported history from a person who has been using marijuana for a
longer period of time and conclude that this patient qualifies under
the medical-marijuana law."

Dr. John Walck, Ginn's doctor, told the judge that he thought "medical
marijuana was an appropriate therapy" for Ginn's chronic back pain.

Dr. Gregory Carter, a medical-marijuana expert who took part in the
pretrial hearing, said the judge was "second-guessing" the doctor.

"In essence the judge is practicing medicine. That's scary," Carter

If a doctor's letter authorizing a patient to use marijuana won't
stand up in court, "then that's a whole new ballgame" for doctors and
patients, said Carter, who also has signed authorization letters for

Carter, a clinical associate professor at the University of Washington
and a rehabilitation-services regional medical director for Providence
Health Care System, is board-certified in physical rehabilitation and
electrodiagnostic medicine and has researched marijuana's clinical

He noted the federal government's position that marijuana, like
heroin, is an illegal drug for which there is no evidence of medical

But, Carter said, "The medical evidence for the utility and usefulness
for cannabis is very strong. It's as strong as anything we do in medicine."

With court rulings in Ginn's and other recent cases, Carter said, he
worries that he could put a patient in legal jeopardy by authorizing
medical use of marijuana.

"If a doctor's authorization isn't going to be a usable defense,
what's the law on the books for?" he asked. "It really limits the
authority of physicians."

Jack Jones, the prosecutor in the case, said the judge's ruling was
appropriate. "I think the law is very clear" in the areas the judge
cited in his ruling, said Jones, senior deputy prosecutor in Thurston
County's criminal division.

"The judge just applied the provisions of the statute as it was passed
by the people during the initiative process. There are things about
the law I think are unclear, but they didn't form the basis of the
judge's ruling."

One murky area that has surfaced in many cases is the requirement that
patients have no more than a "60-day supply" of marijuana. But doctors
say that specifying a dose would amount to a "prescription," which
they think is prohibited and could invite federal scrutiny.

"Doctors make a recommendation but we are not technically allowed to
write a prescription - 'take x amount x times per day.' If you can't
write a dose, how can you specify what a 60-day supply is?' " Carter

In a Stevens County case last year, the judge said the 60-day supply
issue may be "a defect in the medical-marijuana initiative."

Last year, a state appeals court upheld the felony
marijuana-possession conviction of Ocean Israel Shepherd, a
Spokane-area man. The court said he did not prove the amount he had
was within the 60-day limit.

It also said doctors should include specific amounts in their
recommendations, and must say that patients "would" - not "may" -
benefit from using the drug.

One of the three judges on the appeals panel, however, said the law
was "ambiguous" on the issue of documentation and should be
interpreted to allow a doctor's statement that a patient "may benefit"
from medical use of marijuana.

Late last year, the 9th U.S. Circuit Court of Appeals ruled that
patients who use medical marijuana - so long as they grow their own,
get it for free and don't sell it - are protected from federal
prosecution if they meet qualifications under state medical-marijuana

An appeal is expected in that case.

Pubdate: Mon, 19 Jan 2004
Source: Seattle Times (WA)
Copyright: 2004 The Seattle Times Company
Contact: opinion@seattletimes.com
Website: The Seattle Times | Local news, sports, business, politics, entertainment, travel, restaurants and opinion for Seattle and the Pacific Northwest.