Author, Others Battle for Marijuana Rights

[boulder]

The federal marijuana cultivation trial of former High Times columnist Ed Rosenthal began Tuesday like so many drug cases. Prosecutor George Bevan told jurors that agents seized some 3,000 plants growing in Rosenthal's warehouse in Oakland. "It's a federal offense," Bevan said.

 

But this is no routine drug prosecution for a man whose column and books preach the gospel on tips for growing marijuana and evading the law. Rosenthal says he was growing medical marijuana, "to help the sick," which is legal under California law and in seven other states.

 

Alaska, Arizona, California, Colorado, Hawaii, Maine, Oregon and Washington allow the infirm to receive, possess, grow or smoke marijuana for medical purposes without fear of state prosecution.

 

Rosenthal's case and others are an outgrowth of the government's drug war, two years after the U.S. Supreme Court said it was a violation of federal drug laws for medical marijuana clubs to dispense pot to the sick.

 

Armed with the Supreme Court's ruling, the government has raided several medical marijuana clubs and growing operations throughout California over the objection of marijuana advocates, local prosecutors and officials.

 

But Rosenthal and other medical marijuana advocates have taken the offensive with fresh legal attacks of their own, opening a Pandora's box of legal questions. And these challenges, which are failing in the lower federal courts, will soon reach the Supreme Court, which may not have written the final word on the topic.

 

In May 2001, the high court said that the pot clubs could not dole out marijuana based on a so-called "medical necessity" need of the patients.

 

Justice Clarence Thomas wrote that an Oakland pot club could not defend its actions against federal drug laws by declaring it was dispensing marijuana to the medically needy.

 

But the justices said they addressed only the issue of a so-called "medical necessity defense" being at odds with a 1970 federal law that marijuana, like heroin and LSD, has no medical benefits and cannot be dispensed or prescribed by doctors.

 

Thomas wrote that important and unresolved constitutional questions remained, such as Congress' ability to interfere with intrastate commerce, the right of states to experiment with their own laws and whether Americans have a fundamental right to marijuana as an avenue to be free of pain. Justice Thomas wrote that the court would not decide those "underlying constitutional issues today."

 

Rosenthal, 58, who faces a maximum life term if convicted, said he and his attorneys made all those arguments in a bid to have the case dismissed.

 

"But the judge won't let them in," Rosenthal said, adding that he would appeal his case if convicted.

 

U.S. District Judge Charles Breyer also ruled that jurors cannot be told why Rosenthal was growing marijuana.

 

"You can certainly raise that on appeal," Breyer said in an angry exchange with Rosenthal's lawyers during a break Tuesday.

 

In another case invoking Justice Thomas' comments, Angel Raich has sued the federal government to allow her to smoke marijuana without the fear of prosecution and to allow others to grow it for her.

 

The 37-year-old Oakland woman has a variety of ailments, including scoliosis, a brain tumor, chronic nausea, fatigue and pain. She said she was partially paralyzed on the right side of her body until she started smoking marijuana.

 

"I began to get this tingling sensation," Raich said. "It was electric."

 

Her doctor, Frank Lucido of Berkeley, said he and other doctors have tried about three dozen drugs to alleviate Raich's pain. None worked, and they each provoked violent nausea.

 

"It would be medical malpractice to keep trying new drugs," Lucido said.

 

Raich's husband and attorney, Robert Raich, is the same Oakland lawyer who lost the original medical marijuana case before the Supreme Court nearly two years ago. He has taken up his wife's case and renewed the battle for the Oakland pot club he originally represented before the Supreme Court.

 

"We are taking Justice Thomas' comments to heart," he said. "We are laying the framework to get to the Supreme Court again."

 

Editors: David Kravets has been covering state and federal courts for a decade.

 

Source: Associated Press

Author: David Kravets, Associated Press

Published: Tuesday, January 21, 2003

Copyright: 2003 Associated Press