Medical-Pot Backers Get Cool Reception
By Claire Cooper -- Bee Legal Affairs Writer

Source: Sacramento Bee (CA)
Author: Claire Cooper -- Bee Legal Affairs Writer
Published: Saturday, April 20, 2002
Copyright: 2002 The Sacramento Bee
Contact: [email protected]

State and private lawyers trying to salvage California's medical marijuana law got no encouragement from a federal judge during a court hearing Friday.

The session was the first on implementing a 2001 U.S. Supreme Court decision against Proposition 215, which sanctioned pot distribution and use for some Californians with cancer, AIDS and other serious ailments.

U.S. District Judge Charles Breyer said he will rule later. But he showed little interest when a lawyer representing the state argued that the 1996 initiative can be reconciled with a federal ban on pot for any purpose.

Taylor S. Carey, a special assistant California attorney general, said constitutional states'-rights principles should protect "wholly intrastate cultivation and distribution of cannabis" from federal interference under the 1970 Controlled Substances Act.

Carey joined lawyers representing marijuana cooperatives in Oakland, San Francisco, Fairfax and Ukiah, who were on the losing side of the Supreme Court case.

The high court's 8-0 decision ruled out the defense of "medical necessity" for people charged with violating the federal statute. But it did not finally resolve the underlying dispute -- the federal government's long-standing fight to get a permanent injunction shutting down the pot cooperatives.

In renewing the government's bid for an injunction, Mark Quinlivan, a lawyer for the U.S. Department of Justice, said violations were likely without one.

Breyer said the only open issue was whether the defendants could assure him that, without being enjoined, they would not "directly or indirectly" distribute marijuana for any reason.

"All I can tell you is that the clients will obey the law," said Annette Carnegie, the lawyer for the Oakland Cannabis Buyers Cooperative.

"I'm talking about the federal law," Breyer said. "I'm not talking about the state law."

Carnegie argued that federal prosecutors should have to use the criminal courts, rather than the civil injunction process, to enforce the federal law so that accused violators would be assured jury trials and other constitutional rights.

But Breyer asked whether he should consider "the issue of jury nullification" -- the likelihood that California juries would refuse to convict medical marijuana violators.

Quinlivan said requiring the government to file criminal charges would not be "in the interest of the public at large." Disagreeing with Carnegie's strategy, Bill Panzer said his client, the Marin Alliance for Medical Marijuana in Fairfax, would prefer an injunction if forced to choose.

"We would not ask the court to do anything to pressure the government to proceed criminally against my client," he said, noting that the Bush administration has proved willing to prosecute medical marijuana distributors.

Note: A federal judge gives short shrift to lawyers defending Prop. 215.

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