Vermont Court Says No To Marijuana For Woman's Sick Son

MONTPELIER – A divided Vermont Supreme Court ruled Friday against a woman who said she grew marijuana for her seriously ill son because the drug improved his appetite and helped keep him alive.

In its 3-2 ruling, the justices agreed with a lower court judge that Sue C. Thayer could not use the necessity defense in a felony case against her. The legal doctrine allows criminal defendants to be excused for breaking the law if they can show their conduct was required by an emergency.

The Supreme Court said Thayer should have abided by the terms of Vermont's medical marijuana law by getting a special permit and growing her plants indoors. Instead, she grew them outside without a permit and grew about three times too many, the court said.

In the Rutland County case, Judge Thomas Zonay blocked Thayer from using the necessity defense against the charge that she grew more than 25 marijuana plants, an offense that carries up to a 10-year prison term.

Thayer said the marijuana was for her son, who suffered from a life-threatening chronic wasting condition, and whose appetite and general health were helped by the drug. She previously had allowed marijuana use by an older child who suffered from and later died of leukemia, the court said.

A phone listing for Thayer could not be found. Her attorney, Daniel Sedon of Chelsea, didn't immediately return a message left at his office. Rutland County Deputy State's Attorney Peter Neary also did not immediately return a call for comment.

The Supreme Court noted Thayer's disagreement with various provisions of the Vermont law, including its ban on growing outdoors, before quoting an Iowa necessity defense case in which that court said, "The necessity defense is generally not available to excuse criminal activity by those who disagree with the policies of the government."

The majority opinion, written by Associate Justice Brian Burgess, said Thayer failed to meet one of the elements for a necessity defense – that there was no way to avoid the emergency without engaging in a crime. The opinion said Thayer could have availed herself of the relief provided under Vermont's 2004 medical marijuana law.

The majority said it did not buy her argument that she didn't have time to develop an indoor growing operation in the three years between the time the law passed and when she was arrested in August of 2007.

Chief Justice Paul Reiber wrote a dissent, joined by Associate Justice Denise Johnson.

The two justices disputed the majority's finding that Thayer's situation did not constitute an emergency.

Reiber wrote about a doctor's testimony that just as the older son died of leukemia, the younger son likely was heading for kidney failure and death.

"If the serious illness of a child, which ultimately leads to death, is not an emergency, what is?" he wrote.

They said questions such as whether Thayer could have moved the pot-growing operation indoors or whether she needed more than the nine plants allowed by law, were questions of fact and credibility rather than law, and should have been put to a jury rather than decided by Zonay.

NewsHawk: Ganjarden: 420 MAGAZINE
Source: The Burlington Free Press
Author: The Associated Press
Copyright: 2010 The Burlington Free Press
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