T
The420Guy
Guest
Medical-marijuana activist Steve McWilliams believes the law is on
his side when he dispenses pot to the sick. After all, California
voters in 1996 approved Proposition 215, which allows patients to
grow and use marijuana for medicinal purposes.
He may not be as protected as he thinks.
The federal law that prohibits the cultivation of marijuana
supersedes California law - and that allows the U.S. attorney in San
Diego to seek criminal charges against McWilliams.
San Diego's top federal prosecutor, Carol Lam, hasn't decided whether
to file charges in the case.
If she decides to, legal experts say, mounting a defense in federal
court would be tough. The best hope for McWilliams and other
medical-marijuana patients is that individual U.S. attorneys will
decide not to charge them in the first place.
McWilliams, whose garden was uprooted by federal agents Tuesday, is
the latest medical-marijuana patient to be weighing defense
strategies. In the past year, the federal government has raided
cannabis clubs in Los Angeles and Oakland; at least seven people have
been charged.
"This is not accident," said Stephen G. Nelson, who was a federal
prosecutor in San Diego for 25 years. "Somebody in Washington,
presumably the attorney general, made the decision that we are not
going to allow the people of California to defy the law."
The medical-marijuana community is preparing for a fight in San Diego
that could have national implications.
The National Organization for the Reform of Marijuana Laws plans to
offer legal help to McWilliams, said R. Keith Stroup, a
public-interest attorney who founded the Washington D.C.-based
nonprofit group in 1970. He said three dozen California attorneys are
ready to assist in the case.
"We may not be able to protect him from the powers of the federal
government, but we can damn well make sure he has a good lawyer,"
Stroup said. "And we've done that."
McWilliams, 47, has spent years advocating the healing powers of
marijuana. He smokes the herb to relieve pain he suffers from a 1970s
motorcycle accident.
The unemployed activist has brought marijuana plants into the San
Diego City Council chambers to accentuate his point. Yesterday, he
smoked the drug outside City Hall, where 40 or so people gathered to
protest the DEA raid on his home. San Diego police stood watch but
did nothing.
McWilliams' belief that his personal garden is protected by
Proposition 215 seemed to be bolstered by a state Supreme Court
ruling last July that granted medical-marijuana patients limited
immunity from prosecution.
Many state and local officials support his view.
Earlier this month, California Attorney General Bill Lockyer
complained about the recent raids in a letter to U.S. Attorney
General John Ashcroft and DEA Administrator Asa Hutchinson.
"The decision to continue federal raids on medicinal-marijuana
providers when there is no evidence that the operation is actually
engaged in illicit commercial distribution is wasteful, unwise and
surprisingly insensitive," Lockyer wrote.
San Diego attorney Patrick Dudley, who has been plotting McWilliams'
defense strategy, said the state court ruling doesn't protect
Californians from being prosecuted in federal court. An earlier U.S.
Supreme Court ruling said medical need cannot be used in a defense
against marijuana charges in federal court, no matter what state law
has approved.
"Because of the way federal law is right now, it's a pretty
straightforward case for them, unfortunately," Dudley said.
'Jury nullification'
One possible defense strategy would be to persuade a jury to acquit
medical-marijuana activists even if the federal government's evidence
against them is overwhelming.
This tactic, known as "jury nullification," has been used by draft
dodgers and tax protesters to argue they should be acquitted because
the laws under which they were prosecuted are misguided.
San Diego defense attorney Michael Pancer said that tactic usually
fails, because judges carefully instruct jurors to follow the law,
not their hearts.
"The jurors cry and say they don't want to convict - but then they
do," Pancer said.
Peter Nunez, a former U.S. attorney under President Reagan, said he
prosecuted several people in federal court in the late 1970s for
smuggling an extract of apricot pits known as Laetrile. Most of those
defendants tried to argue for jury nullification because some cancer
patients believed the drug helped cure the disease.
Each time, they were convicted, Nunez said.
Prosecutors have another edge in the McWilliams case, because they
can argue he continued to violate the law after they warned him that
growing and distributing marijuana was illegal.
In an unusual move, the U.S. attorney notified McWilliams in a
hand-delivered letter last Thursday that he would be prosecuted if he
continued his activities.
McWilliams said he wouldn't stop, because it was a matter of
principle. Even the knowledge that a conviction could put him in
prison hasn't deterred him. If tried and convicted of manufacturing
marijuana, he could face up to 16 months in prison.
McWilliams said he hopes the U.S. attorney's office will decide not
to prosecute him.
The federal government appears to have backed down in one
high-profile case this month. In Santa Cruz County, dozens of federal
agents had seized 100 plants and arrested several members of a
medical-marijuana cooperative. A few days later, federal authorities
said no charges would be filed.
"It would not be a nice, easy, clean prosecution," McWilliams said.
"We've been assured that if we stayed within these guidelines, we'll
be protected."
Stephen Nelson, the former San Diego federal prosecutor who once
headed the drug division, said some jurors might view a guilty
verdict as unjust.
In one of the few medical-marijuana cases prosecuted in state court
in San Diego, jurors in 1993 acquitted a La Mesa man who said he
needed the drug to ease the symptoms of AIDS. The verdict was reached
before Proposition 215 allowed medical use.
"Jurors aren't stupid," said Nelson, who believes federal officials
should not press charges. "There's always a chance they would hang or
acquit."
Civil complaint
McWilliams and his partner, Barbara MacKenzie, have been lining up
support from activists and lawyers throughout the nation.
Gerald Uelmen, a law professor at Santa Clara University who is
defending the Santa Cruz marijuana advocates, is putting together a
civil complaint seeking an injunction to prevent the DEA from
conducting further raids until the courts resolve the conflict
between state and federal laws.
"They're just engaged in hit-and-run operations, trying to close down
as many (gardens) as they can," Uelmen said of the drug agents. "They
just go in and grab the plants, the records and computers and then
not engage in any criminal prosecution."
McWilliams has received a vote of confidence from some members of a
San Diego city task force that is drawing up guidelines under which
chronically ill patients may use marijuana. McWilliams was a member
of the task force until last month, when he quit because he felt the
committee was moving too slowly.
"This is a medical issue," San Diego City Councilman George Stevens
said yesterday at a committee meeting attended by dozens of
McWilliams supporters. "People are sick. The marijuana is needed to
address their illness."
The task force recommendations are scheduled to go before a City
Council committee Oct. 16. San Diego police and drug-abuse prevention
groups disagree on some of the suggestions.
City officials estimate that between 1,500 and 3,000 people will
apply for identification as registered medical-marijuana patients.
The city expects to begin issuing the ID cards early next year.
Meanwhile, McWilliams is bracing for a knock at his door he hopes
will never come. He worries whenever helicopters pass over his rented
house in Normal Heights.
Before their house was raided this week, he and MacKenzie harvested
the useable marijuana from their garden and divided it among five
clients.
"If we waited and they came, then we would lose everything,"
McWilliams said. "So we just tried to help as many people as we
could."
SAN DIEGO UNION-TRIBUNE STAFF WRITERS
State law not a shield to U.S. prosecution
https://www.signonsandiego.com/news/metro/20020926-9999_1m26pot.html
By Marisa Taylor and Jeff McDonald
his side when he dispenses pot to the sick. After all, California
voters in 1996 approved Proposition 215, which allows patients to
grow and use marijuana for medicinal purposes.
He may not be as protected as he thinks.
The federal law that prohibits the cultivation of marijuana
supersedes California law - and that allows the U.S. attorney in San
Diego to seek criminal charges against McWilliams.
San Diego's top federal prosecutor, Carol Lam, hasn't decided whether
to file charges in the case.
If she decides to, legal experts say, mounting a defense in federal
court would be tough. The best hope for McWilliams and other
medical-marijuana patients is that individual U.S. attorneys will
decide not to charge them in the first place.
McWilliams, whose garden was uprooted by federal agents Tuesday, is
the latest medical-marijuana patient to be weighing defense
strategies. In the past year, the federal government has raided
cannabis clubs in Los Angeles and Oakland; at least seven people have
been charged.
"This is not accident," said Stephen G. Nelson, who was a federal
prosecutor in San Diego for 25 years. "Somebody in Washington,
presumably the attorney general, made the decision that we are not
going to allow the people of California to defy the law."
The medical-marijuana community is preparing for a fight in San Diego
that could have national implications.
The National Organization for the Reform of Marijuana Laws plans to
offer legal help to McWilliams, said R. Keith Stroup, a
public-interest attorney who founded the Washington D.C.-based
nonprofit group in 1970. He said three dozen California attorneys are
ready to assist in the case.
"We may not be able to protect him from the powers of the federal
government, but we can damn well make sure he has a good lawyer,"
Stroup said. "And we've done that."
McWilliams, 47, has spent years advocating the healing powers of
marijuana. He smokes the herb to relieve pain he suffers from a 1970s
motorcycle accident.
The unemployed activist has brought marijuana plants into the San
Diego City Council chambers to accentuate his point. Yesterday, he
smoked the drug outside City Hall, where 40 or so people gathered to
protest the DEA raid on his home. San Diego police stood watch but
did nothing.
McWilliams' belief that his personal garden is protected by
Proposition 215 seemed to be bolstered by a state Supreme Court
ruling last July that granted medical-marijuana patients limited
immunity from prosecution.
Many state and local officials support his view.
Earlier this month, California Attorney General Bill Lockyer
complained about the recent raids in a letter to U.S. Attorney
General John Ashcroft and DEA Administrator Asa Hutchinson.
"The decision to continue federal raids on medicinal-marijuana
providers when there is no evidence that the operation is actually
engaged in illicit commercial distribution is wasteful, unwise and
surprisingly insensitive," Lockyer wrote.
San Diego attorney Patrick Dudley, who has been plotting McWilliams'
defense strategy, said the state court ruling doesn't protect
Californians from being prosecuted in federal court. An earlier U.S.
Supreme Court ruling said medical need cannot be used in a defense
against marijuana charges in federal court, no matter what state law
has approved.
"Because of the way federal law is right now, it's a pretty
straightforward case for them, unfortunately," Dudley said.
'Jury nullification'
One possible defense strategy would be to persuade a jury to acquit
medical-marijuana activists even if the federal government's evidence
against them is overwhelming.
This tactic, known as "jury nullification," has been used by draft
dodgers and tax protesters to argue they should be acquitted because
the laws under which they were prosecuted are misguided.
San Diego defense attorney Michael Pancer said that tactic usually
fails, because judges carefully instruct jurors to follow the law,
not their hearts.
"The jurors cry and say they don't want to convict - but then they
do," Pancer said.
Peter Nunez, a former U.S. attorney under President Reagan, said he
prosecuted several people in federal court in the late 1970s for
smuggling an extract of apricot pits known as Laetrile. Most of those
defendants tried to argue for jury nullification because some cancer
patients believed the drug helped cure the disease.
Each time, they were convicted, Nunez said.
Prosecutors have another edge in the McWilliams case, because they
can argue he continued to violate the law after they warned him that
growing and distributing marijuana was illegal.
In an unusual move, the U.S. attorney notified McWilliams in a
hand-delivered letter last Thursday that he would be prosecuted if he
continued his activities.
McWilliams said he wouldn't stop, because it was a matter of
principle. Even the knowledge that a conviction could put him in
prison hasn't deterred him. If tried and convicted of manufacturing
marijuana, he could face up to 16 months in prison.
McWilliams said he hopes the U.S. attorney's office will decide not
to prosecute him.
The federal government appears to have backed down in one
high-profile case this month. In Santa Cruz County, dozens of federal
agents had seized 100 plants and arrested several members of a
medical-marijuana cooperative. A few days later, federal authorities
said no charges would be filed.
"It would not be a nice, easy, clean prosecution," McWilliams said.
"We've been assured that if we stayed within these guidelines, we'll
be protected."
Stephen Nelson, the former San Diego federal prosecutor who once
headed the drug division, said some jurors might view a guilty
verdict as unjust.
In one of the few medical-marijuana cases prosecuted in state court
in San Diego, jurors in 1993 acquitted a La Mesa man who said he
needed the drug to ease the symptoms of AIDS. The verdict was reached
before Proposition 215 allowed medical use.
"Jurors aren't stupid," said Nelson, who believes federal officials
should not press charges. "There's always a chance they would hang or
acquit."
Civil complaint
McWilliams and his partner, Barbara MacKenzie, have been lining up
support from activists and lawyers throughout the nation.
Gerald Uelmen, a law professor at Santa Clara University who is
defending the Santa Cruz marijuana advocates, is putting together a
civil complaint seeking an injunction to prevent the DEA from
conducting further raids until the courts resolve the conflict
between state and federal laws.
"They're just engaged in hit-and-run operations, trying to close down
as many (gardens) as they can," Uelmen said of the drug agents. "They
just go in and grab the plants, the records and computers and then
not engage in any criminal prosecution."
McWilliams has received a vote of confidence from some members of a
San Diego city task force that is drawing up guidelines under which
chronically ill patients may use marijuana. McWilliams was a member
of the task force until last month, when he quit because he felt the
committee was moving too slowly.
"This is a medical issue," San Diego City Councilman George Stevens
said yesterday at a committee meeting attended by dozens of
McWilliams supporters. "People are sick. The marijuana is needed to
address their illness."
The task force recommendations are scheduled to go before a City
Council committee Oct. 16. San Diego police and drug-abuse prevention
groups disagree on some of the suggestions.
City officials estimate that between 1,500 and 3,000 people will
apply for identification as registered medical-marijuana patients.
The city expects to begin issuing the ID cards early next year.
Meanwhile, McWilliams is bracing for a knock at his door he hopes
will never come. He worries whenever helicopters pass over his rented
house in Normal Heights.
Before their house was raided this week, he and MacKenzie harvested
the useable marijuana from their garden and divided it among five
clients.
"If we waited and they came, then we would lose everything,"
McWilliams said. "So we just tried to help as many people as we
could."
SAN DIEGO UNION-TRIBUNE STAFF WRITERS
State law not a shield to U.S. prosecution
https://www.signonsandiego.com/news/metro/20020926-9999_1m26pot.html
By Marisa Taylor and Jeff McDonald
