May 16,00
The Fresno Bee
By Jennifer M. Fitzenberger
A Porterville couple must fight for their right to grow marijuana. Clarence McKee has spent more than 40 years watching his wife, Penny, cry.
She cries for her husband, who after a 20-year battle with diabetes and neuropathy can't feel his hands or feet. And she cries for her own deteriorating body, which constantly aches from an ailment that cripples her muscles and joints.
Nonetheless, Penny McKee is a fighter. She fights daily for the right to grow and smoke marijuana -- the one drug she says makes life tolerable. "All this has just been humiliating," Penny McKee, 56, said last week as she buried her face in her hands. "God is my supreme judge. He knows I am innocent. I never did anything wrong."
A jury in 1998 convicted the McKees of cultivating marijuana and possessing it for sale after authorities confiscated more than 130 plants from their home. Penny McKee also was convicted of possessing a small amount of methamphetamine. They are appealing the ruling.
Tulare County Judge William Silveira last year sentenced the McKees to probation and gave the couple permission to grow a "reasonable amount" of marijuana for medicinal purposes, said Clarence McKee, 58.
The McKees did just that: They continued to grow the green, leafy plant.
Then, on April 25, Tulare County sheriff's deputies raided the McKee home a second time. This time, they seized 27 marijuana plants -- despite the judge's order permitting the McKees to grow and use marijuana and a doctor's note explaining their medical conditions necessitating the drug.
"The cops can't get it through their heads that the laws are changing," said Clarence McKee, who has grown pot in his back yard for about 20 years. "Nobody wants to be the first to say you can grow marijuana."
The Tulare County District Attorney's Office has not charged the McKees in the latest case and would not comment.
The McKees vow to do what they can to force lawmakers and law enforcers to clarify and abide by Proposition 215, which California voters passed in 1996. The law allows patients and their primary care-givers to grow marijuana if their doctors recommend it, but it sets no limits on how much can be grown or how much may be possessed.
Until the amount of marijuana people can grow is defined, authorities have said they will continue to enforce the law as they understand it.
"This is a controversial issue, and it needs proper direction," said Tulare sheriff's Capt. Gary Harris. "The ambiguity of the issues now makes it difficult for law enforcement to deal with this type of case."
The department's duty is to seize evidence, investigate a crime and file paperwork with the District Attorney's Office, Harris said. The district attorney then decides if there is enough evidence to charge a suspect.
"If we perceive it's a violation of the law, we can't leave the fruits of the violation there," Harris said. "You don't leave evidence. You have an obligation to seize evidence so it can be used in court."
Such policies keep the McKees wondering if they will ever be able to smoke marijuana without fear of arrest.
Sheriff's deputies went to the McKee home last month after receiving an anonymous tip that the couple was growing marijuana. They asked the McKees if they could have a look around.
"I said, 'Sure. You want to come in and see my plants?'" said Clarence McKee, who promptly gave the deputies paperwork documenting the terms of their probation and medical conditions allowing the use of marijuana.
The deputies, who found marijuana plants growing up to a foot tall, looked puzzled, McKee said.
"The head cop -- he didn't know what to do," McKee said.
After some discussion, the deputies yanked the plants out of their pots and hauled them away. They did not arrest the McKees because "they were very cooperative," Harris said. "There was nothing to indicate they were a threat to society."
But in Harris' opinion, "If you have one marijuana plant, it's one too many."
McKee vehemently disagrees. He said he only grows the drug for personal use and has never sold it for a profit.
McKee smokes two pipefuls of marijuana a day. His wife smokes as much as eight joints a day to cope with pain brought on by chronic fibromyalgia.
"I told them, 'You're taking our babies here,'" McKee said of the plants officers destroyed. "Then they left. That was it. I contacted our attorney and told him the entire story."
The McKees' story dates back to October 1997, when authorities found -- in addition to marijuana -- two loaded guns, a scale, a police scanner and trace amounts of methamphetamine in their home. Their 14-month trial ended with convictions.
Clarence and Penny McKee, however, maintain their innocence. The guns were for protection -- their home recently had been burglarized, they said.
Penny McKee said she used methamphetamine for a couple months to cope with stress and was not using the drug at the time. She was taking it to her doctor to have it analyzed.
"Penny was terrified," said William Logan, the McKees' lawyer. "It just makes me sick to see what they're doing to that woman."
The McKees and hundreds of other medical marijuana users in Tulare County have done nothing wrong, Logan said.
Logan, who helped edit original drafts of Prop. 215, has testified as an expert witness in medical marijuana cases.
The proposition's authors generalized the law in an attempt to woo voters into supporting it, Logan said.
"I knew what was going to happen when we started to litigate this thing," Logan said. "But we had to write it general enough to get it passed."
City and county agencies across the state have passed their own ordinances attempting to specify the law. San Francisco, Santa Cruz and Oakland officials have taken steps to clarify it.
Logan said Tulare County officials should follow suit by creating a committee that includes district attorneys, sheriff's officials and doctors. The committee would draft its own clarifications.
Officials at the Tulare County District Attorney's Office said they are trying to set up guidelines for prosecutors.
"Any step we make, we want to be consistent with the law," said Assistant District Attorney Don Gallian. "Even after we have guidelines, we will take each case on its own merits."
Harris said the state Legislature needs to clarify the law: "It's not a local issue so much as it's a legislative issue. That's what we've got the Legislature for."
State Sen. John Vasconcellos, D-San Jose, has introduced a bill that would require the state's Department of Health Services to establish a voluntary registration program for patients and set a limit on the amount of marijuana one can legally grow and use.
The bill is one step away from Gov. Davis' desk.
"It's an important piece about establishing standards about the amount of marijuana that's appropriate for medical purposes," said Rand Martin, Vasconcellos' chief of staff. "The original language of Prop. 215 was not well written and left some gaping holes. It's caused some problems for patients, for doctors and for law enforcement."
Lawmakers are busy revising the bill, said Martin, who added that without the legislation, "we're going to continue to see a lot of uncertainty."
Although it will never erase their pain, the McKees say the drug works wonders.
"There's a huge, huge difference between smoking marijuana to get high and smoking it for medicine," Penny McKee said.
When the drug is used for pain, "you do it so you don't have to cry all the time," she said.

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