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February 14, 2009

Truth, Marijuana, and Justice: 2

Gridlock: why court trials have (again) become determinants of drug policy

As noted previously, the state and federal police agencies created and/or empowered by the 1970 Controlled Substances Act had developed such a powerful vested interest in marijuana prohibition that by 1996 they would regard any implementation of California’s initiative as a threat to be opposed at all costs. For a variety of reasons, their position has been tacitly supported by the more permissive default adopted by American non-government organizations. Thus the prevailing attitude toward “medical” marijuana gradually taken by the American polity has become a vaguely imagined middle ground: it's OK to make exceptions for very ill or dying pot smokers, but they should be strictly monitored and “recreational” use, especially by irresponsible young people, should remain illegal.

There are several problems with that formulation: first, it depends on police agencies and courts to determine "recreational" use; second, the applicable standards are so vague as to be unsatisfactory. However, because the interested parties have confidence in the ones they had developed in mutual ignorance, there's little interest in developing new ones. Finally; the core issue of drug prohibition has never been honestly debated by opposing stakeholders, mostly because an (unfair) onus on the treatment of "drug addicts" created by Harrison had so frightened physicians and then been transformed, in two stages, into a fear of cannabis itself: first when the MTA, made all use illegal under all circumstances. Then, after pot's popularity with adolescents made it the nation's most popular illegal drug in the Seventies, that phenomenon, and the reasons behind it, were completely missed; largely because Nixon was able to get away with quashing the Shafer Commission report in March, 1972, well ahead of the Watergate scandal.

Ironically, it had also been pot's progressive and sustained popularity that had demonstrated the financial and political profits that could accrue to law enforcement agencies from policing its huge illegal market and convinced them they shouldn't be surrendered without a fight.

Thus 215's police problem has been the gridlock produced by the illegality of cannabis. The best way to understand that may be by analogy with homosexuality, another common and deplored behavior, once technically illegal in many venues, but critically different because it was never a federal crime. While still regarded as undesirable behavior by many, homosexuality, has never been a comparable source of financial or political power. Additional keys to understanding the important difference in how the two are perceived: the DSM declared homosexuality a non-disease in the Seventies, but still classifies repetitive marijuana use as a "disorder," and the California Supreme Court trashed Proposition 215 in the Raging Wire case, but will consider the Constitutionality of Proposition 8.

At this point in its evolution, the unresolved debate over “medical marijuana” has been relegated to federal courtrooms where terms can be arbitrarily defined by a judge with little understanding of "science." Because neither the federal nor state supreme courts have chosen to challenge the initiative process itself, the default has become a ridiculously unfair "shared sovereignty” arrangement since Raich. The DEA is now feels free to bully and intimidate suspects while it gathers evidence and then to colludes with local law enforcement in deciding who be subject to federal prosecution, and in what order.

The huge advantage enjoyed by the feds in court is control of the rules, as is evident in the three trials considered here. At the same time, those trials' important details and outcomes to raise serious questions about the whole American Judicial system.

The Sacramento trial of Doctor Mollie Fry and Dale Shafer followed the other two, although the preliminary raid in September 2001 had preceded the others and the medical records taken haven't been returned or accounted for. I’d met both defendants at a Cannabis Clinicians' meeting hosted by the late Tod Mikuriya, but most of my information on their trial and its preliminary raid is from Cool Madness, Vanessa Nelson’s readable and richly detailed account. The degree to which it agrees with my own experiences in the Costa prosecution suggests her report is very accurate.

In brief, a professional couple, each using cannabis to treat a serious disease, thought such use had been legitimized by Proposition 215. At some point, the need to make an frequent round trips to San Francisco led Dale Shafer to begin growing cannabis and high dispensary prices induced he and Fry to help their patients obtain it. The available evidence confirms that their motives were non-commercial, compassionate, and law abiding; however, their control of the recommendation process, together with the production of an illegal drug, made their operation especially vulnerable to federal prosecution.

In that connection, their trial revealed that a local policeman who “befriended” them and whose advice they solicited was simultaneously working under cover as a federal informant. Sgt. Robert Ashforth (probably illegally) had been posing as a "friend" while repeatedly assuring them they were in compliance with the law and encouraging them to grow even larger amounts. Amazingly, his unverified recollection of plant numbers later became part of the estimate that brought them up to the arbitrary 100 plant threshold required to punish them.

His duplicity was matched by that of a dreary parade of prosecution witnesses, some undercover policemen, and others former employees, made vulnerable to federal prosecution by their participation. The motivation and credibility of such "snitches" were frequently attacked by the defense team of Tony Serra and Lawrence Lichter, in verbal battles with relentless lead prosecutor Anne Pings, who comes across as an older version of Karen Escobar, whom I'd observed in the same role (and with the same attitude) in Fresno.

Similarly, Frank Damrell played the same role as Judge Anthony Ishii in Costa’s trial, but with more drama and emotion. One reason was that Robert Rainwater, Costa’s public defender and Ishii's contemporary in federal service, was far more accepting of his role of designated loser than Tony Serra or Lichter.

Dustin Costa of Merced was the first post-Raich state defendant selected for federal punishment. An ex-marine baby-boomer who had controlled a troublesome penchant for alcohol with cannabis, he'd obtained a pot recommendation shortly after 215 passed and was arrested when his arguably legal (under state law) grow was found by a (probably) illegal search. A few weeks after Raich, and while free on bail on the state charges, Costa was symbolically arrested at gunpoint on a federal warrant served by six California “peace officers” and whisked off to the Fresno County jail where he was denied bond and held in miserable conditions until his grossly unfair trial in the courtroom of Judge Anthony Ishii. The judge listened carefully to the well formulated motions of federal public defender Robert Rainwater before denying them all. He then blocked relevant medical testimony and pronounced a sentence of fifteen years the day after the 2006 Super Bowl. Costa is now serving that grotesquely unfair sentence in a low security federal prison in Texas.

I have taken a more personal tone in describing Costa's case because the close personal association that developed after he became my patient in December 2003 afforded me a detailed perspective on his federal ordeal; almost that of a participant. His shabby treatment at the hands of the government I once served has filled me with a disgust I feel every day, even as it allows me to see through the dishonesty and posturing of multiple American institutions.

The two highly publicized trials of the "Guru of Ganja" in San Francisco stand in stark contrast to Costa's Stalinesque show trial in Fresno, Although the outcomes in all were guilty verdicts from juries prevented from hearing relevant testimony by federal judges supporting over-the-top prosecutors, the details were very different. Ed Rosenthal's first trial, presided over in San Francisco by Judge Charles Breyer, was the first of the three and received the most media attention when it was held in 2003.

The original Rosenthal trial's most unusual feature was an oddly timed revolt by 8 jurors who claimed, on the courthouse steps, that they hadn't been told it was a medical case and would have voted differently if they had. The obviously discomfited judge, the younger brother of a Supreme Court Justice and member of a prominent local family, resolved his dilemma by sentencing Rosenthal to time served, a single day after the February, 2002 raid. Not satisfied, Rosenthal loudly denounced the whole process and demanded a new trial, a request granted by the famously liberal Ninth Circuit. After the prosecution churlishly added income tax evasion and other charges, Breyer dismissed them and ruled that the original sentence could not be increased by the appeal and suggested that Rosenthal should drop it.

As reported by Nelson, the ensuing second trial was another circus in which the defense team squabbled incessantly with the prosecutor while a distraught Judge Breyer alternately sat with his eyes closed during boring testimony or erupted at the defense for their many violations of his orders. At the same time, he demonstrated a surprising tolerance for what can only be described as impudent behavior by the defendant. The result was another guilty verdict, no complaints by any jurors, and an unchanged sentence, all of which were financed by a combination of federal (tax) dollars and contributions from loyal stoners.

The contrast between the federal prosecutions of Ed Rosenthal and Dustin Costa could not be more extreme. I plan to discuss their significance in more detail in another entry, but this one is already too long.

Doctor Tom

Posted by tjeffo at February 14, 2009 03:57 PM