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Dr. Shaygan's Saga: Prosecutorial Misconduct in the War on Pain Docs [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

Part 4 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

In what could become an historic case, a Florida doctor acquitted of drug dealing charges over his prescribing practices is asking the US Supreme Court to reinstate a $600,000 award made to him by a lower court after federal prosecutors were found to have engaged in misconduct that was "vexatious, frivolous, or in bad faith." That language comes from the Hyde Amendment, enacted in 1997, which gives federal judges the power to force the government to pay attorney's fees to acquitted defendants if the actions of those prosecutors met that standard of misconduct.

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Dr. Ali Shaygan
The case of Florida physician Dr. Ali Shaygan has been closely watched by pain-management doctors -- an area in which the federal government has waged a fierce "war on prescription doctors" -- a war fueled by a rising death toll in recent years from prescription drug overdoses in America, but also preceding that rise. Since 2003, according to DEA, hundreds of physicians across the nation have been charged in federal or state court for illegally dispensing narcotic pain medicine to patients.

This past August, the 11th US Circuit Court of Appeals overturned the trial court decision awarding the money to Shaygan, who had operated a Miami pain clinic. He was acquitted in March 2009 of 141 counts of illegally distributing narcotics to patients, including one case where a patient died of an overdose.

Shaygan's attorneys charged that two Assistant US Attorneys, Sean Cronin and Andrea Hoffman, as well as a DEA agent, had acted "vexatiously" and withheld materially important evidence after Shaygan was originally charged in a 23-count indictment. US Circuit Court Judge Alan Gold, who presided over the high-profile trial, agreed that prosecutors violated disclosure requirements by withholding information from the defense and the court and ordered the cash award.

Judge Gold also accused the government of launching a separate "tactical" effort to disqualify the doctor's attorney, David Markus, shortly before the trial began. In that effort, which Gold characterized as part of a scheme to undermine the defendant's rights to a fair trial, the prosecutors failed to notify the defense that the DEA had attempted to manipulate two witnesses in the case into trying to entrap Markus into paying off witnesses to give favorable testimony at the trial to help the doctor beat the rap.

Following a sanction hearing after the doctor's acquittal in 2009, Judge Gold issued a scathing ruling against the prosecutors. The government conduct was so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute," Gold concluded.

After Gold requested that the Justice Department investigate the government's misconduct, prosecutor Cronin conceded to the Miami Herald, "We should have done a better job," but insisted that "at no time was I acting in bad faith."

He said he authorized secret recordings of attorney Markus because a witness, Courtney Tucker, had told a DEA agent the defense might be trying to tamper with her testimony. Yet Tucker contradicted Cronin's claim when she testified that a DEA agent had tried to pressure her to tailor her testimony to bolster the prosecution's case against Dr. Shaygan.

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Atty. David Markus after the acquittal
When federal prosecutors appealed the cash award to the 11th Circuit, a sharply divided panel overturned it, holding that Gold had overreached and wrongly interpreted the Hyde Amendment by applying the incorrect legal standard for awarding the fees under the statue. The appeals court majority also held that "as long as a prosecutor had an objectively reasonable basis in law (not frivolous and not vexatious), an award of attorney fees under the Hyde Amendment is improper." One judge concluded that the overall prosecution and allegations on the original indictment were "objectively valid."

But in a harsh dissent, Judge Beverly Martin wrote that the majority opinion "will render trial judges mere spectators of extreme government misconduct."

Markus told the Chronicle the appeals court reversal was not what he expected. "The decision was surprising given how the oral argument went and how thorough Judge Gold's order was," Markus said, adding that he was appealing to the Supreme Court.

Now a coalition of former federal judges and prosecutors, organized by the bipartisan group the Constitution Project has signed onto an amicus brief supporting Markus's writ of certiorari asking the Supreme Court to overturn the appeals court decision and reinstate the cash award in US v. Shaygan.

"When a court bends the law to excuse a prosecutor's bad faith, public confidence in the criminal justice system suffers," the Constitution Project brief said.

Just Another Pain Doctor Prosecution

The wheels of justice in Dr. Shaygan's case began turning on June 9, 2007, when one of the long-term patients at his pain clinic, James Brendan Downey, died of a drug overdose from a fatal combination of prescribed methadone and illegal cocaine. Shaygun had prescribed the methadone to Downey two days before he died, and an autopsy found that the levels of methadone in his blood alone were enough to kill him.

In a subsequent undercover sting operation, two Florida police officers posed as potential patients at Shaygan's office to determine how easily they could obtain prescribed narcotics. Federal prosecutors said both officers obtained a prescription for controlled substances on their first visit without presenting medical records, and that Shaygan only administered minimal physical examination.

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Judge Gold
On February 8, 2008, the Southern Florida US Attorneys Office filed a 23-count indictment against Shaygan alleging that "the doctor distributed and dispensed controlled substances outside the scope of professional practice unintended for legitimate medical purposes in violation of 21 U.S.C. 841."

Three days later, DEA agents arrested Shaygan at his office. Agents seized Shaygan's active patient files and even confiscated his leather-bound daily planner. Prosecutors said that DEA agents reported that Shaygan allegedly made a statement to the effect, "I want to cooperate." On May 14, Markus filed a motion to suppress his client's statement during his arrest.

At a post-hearing on the suppression motion held on August 2008, Markus clashed with lead prosecutor Cronin over Markus's attempt to keep his client's alleged statement from being heard by the jury. Cronin threatened Markus with an enhanced prosecution of his client if he persisted in that strategy.

"Cronin told me that if we litigated the suppression issues, there would be no more plea discussions, and that if I went after his witnesses (DEA agents), there would be a 'seismic shift' in the way he would prosecute the case against Mr. Shaygan," Markus said.

Markus dismissed Cronin's threat and forged ahead with the suppression hearing, offering up damaging testimony by Shaygan, who testified that DEA agents, while flashing their weapons, continued to interrogate him, despite his request to speak with a lawyer. Agents denied this happened. After hearing from a defense witness that he overheard Shaygan say, "May I please have my lawyer," Judge Gold granted the motion to suppress, which barred prosecutors from using Shaygan's statements during the trial.

Then, playing legal hardball, prosecutor Cronin made good on his threat, filing an additional 108 drug charges against Shaygan totaling hundreds of years in prison and bringing the total number of charges filed against him to 131. Cronin filed the extra charges after DEA agent Chris Wells located and interviewed Shaygan's former patients Carlos Vento, Trinity Clendening, Courtney Tucker and Andrew McQuarrie. These former patients would play a pivotal role in the misconduct allegations against federal prosecutors Cronin and Hoffman.

Before trial, prosecutors Cronin and Hoffman received a tip from DEA agent Wells that Shaygan's defense team might be tampering with the witnesses. Wells said one witness, Courtney Tucker, "was about to go south and not testify." Prosecutors relayed this new information to Karen Gilbert, the Assistant US Attorney in charge of the narcotics unit. Gilbert authorized DEA agent Wells to ask witnesses Tucker and Carlos Vento to record phone calls with the defense team and for the witnesses to ask attorney Markus for funds to testify that Dr. Shaygan had not overprescribed medication that killed James Downey. Vento later signed a confidential informant agreement with the DEA.

Trial Shenanigans

During a three-week trial in beginning in 2009, prosecutors characterized Dr. Shaygan as a drug dealer who recklessly sold prescriptions for dangerous narcotic painkillers, such as oxycodone and methadone, to increase his wealth. Prosecutor Cronin told the jury the government would prove that Shaygan's illegal distribution of methadone contributed to Mr. Downey's death. Jurors viewed evidence showing prescription bottles from Shaygan found in Downey's bedroom, where he died in his sleep. Downey's girlfriend, testifying for the government, said her boyfriend had obtained methadone from Shaygan hours before he died.

But the girlfriend also undercut the prosecution's case by testifying that Shaygan had questioned and cautioned Downey about the large amount of methadone he had requested. Defense attorney Markus further undercut the prosecution case by presenting evidence of additional medicine bottles at the scene prescribed by other doctors.

For the defense, renowned expert forensic pathologist Dr. Michael Baden testified that when Downey used multiple prescribed drugs there was no verifiable way to conclude the drugs given to him by Dr. Shaygan actually caused his death.

Then, in a dramatic twist right out of Perry Mason, former Shaygan patient and government witness Trinity Clendening let slip that he had recorded for the DEA a telephone call he made to to Markus's office to solicit payment for testifying on Shaygan's behalf. A recording later heard in court showed that that Markus had directly refused to offer bribes. "I am not paying money for anything," he said on the tape.

Markus was furious. During a hearing outside the presence of the jury, he hammered the witness. Clendening, now unraveling the government's deceit, revealed the whole scheme to set up Markus for a witness tampering charge. Markus attacked the prosecutors relentlessly over their withholding evidence of the scheme. In closing arguments, Markus rhetorically compared the prosecutorial misconduct in Shaygan's case with the infamous Salem Witch trials, and told the jury it had been misled by the government's flagrant violation of the law through withholding evidence that the defense had asked for under the law and not received.

Judge Gold instructed jurors that they were legally bound to consider the prosecutor's violations of the law during their deliberations over Shaygan's guilt or innocence. After deliberating four hours, the jury acquitted Dr. Shaygan on March 12, 2009.

Shaygan's relatives, friends and colleagues erupted with cheers after hearing the verdict, and jurors hugged Shaygan as he left the courtroom.

"I feel vindicated," Shaygan told the Miami Herald. "I feel that my life can move forward again."

"This verdict sends a message that justice prevails," Markus added.

But justice hasn't prevailed just yet. The federal prosecutors who engaged in the misconduct have not been punished for their actions, either criminally, professionally, or financially. The 11th Circuit Court of Appeals decision reversing the $600,000 award for misconduct that is "vexatious, frivolous, or in bad faith" remains the last word on the affair -- unless the Supreme Court agrees to take the case.

At least, Dr. Ali Shaygan is out from under his legal woes and, having had his license to prescribe medicine reinstated, he is once again helping patients.

Medical Marijuana Update

A California appeals court has made a landmark ruling, the DEA keeps on raiding, and a Montana medical marijuana provider refuses a post-conviction plea bargain, and those are just the top stories. Let's get to it:

Arizona

On Monday, it was revealed that a Mesa dispensary had been raided on October 5. Gilbert Police raided Arizona Natural Solutions, serving a search warrant and seizing "suspected marijuana, candy, cookies, powder, suspected ecstasy, and US currency." No information was offered about the reason for the raid. Three owner/employees are accusing of selling marijuana and "narcotics" (because Arizona state law defines marijuana products like hash as "narcotics").

California

Last Wednesday, a state appeals court threw out the conviction of a San Diego dispensary operator. In what Americans for Safe Access called a "landmark" decision, the 4th District Court of Appeal reversed the conviction of Jovan Jackson, convicted in September 2010 after being denied a defense in state court. The ruling also reversed the lower court's finding that Jackson was not entitled to a defense, providing the elements for such a defense in future jury trials. The ruling also recognized that collective members do not need to be actively involved in marijuana cultivation to access the marijuana they purchase.

Last Thursday, DEA agents arrested 12 people involved with Southern California dispensaries. Most of the dispensaries had been raided and closed in 2010 and 2011, but at least one was still operating. Charges against those arrested include failure to report taxable income, conspiracy to distribute marijuana and maintaining a drug location near schools.

Also last Thursday, the Santa Monica city council extended a 45-day moratorium on dispensaries. On a unanimous vote, the council voted to extend the moratorium for another 10 months. "This is about waiting for the Supreme Court to settle some law. At least I can hope, that with a little bit of time that the law will become clearer and every city's rights are better understood," said Mayor Richard Bloom.

Also last Thursday, the Napa city council told staff to prepare an ordinance banning outdoor grows. The move came after Police Chief Jackie Rubin told the council police had raided a property where 15-foot-tall marijuana plants were visible from a neighbor's yard.

Over the weekend, the California Medical Association addressed four marijuana resolutions. It rejected one (from a doctor who owns a winery!) to rescind the CMA policy in support of marijuana legalization, it passed one referring that policy to the American Medical Association, it passed another asking the governor to petition the DEA to reschedule marijuana, and it referred for further study one examining medical marijuana use in hospitals.

On Monday, the Los Angeles city clerk approved a petition to regulate dispensaries. Petitioners want to get on the May ballot; to do so, they must gather 41,138 valid signatures by December 7. The proposed initiative would bar new medical marijuana dispensaries, but allow those collectives that registered with the city as of Sept. 14, 2007 and meet other criteria, to continue operating. The ordinance would also establish operating standards, including mandatory annual police background checks and distances from schools, parks and other designated places.

Also on Monday, a state appeals court held that trial judges can ban the use of medical marijuana for some probationers. A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation. Leal was on probation for possessing marijuana for sale, and he argued the ban violated his right to use the substance under the state's Compassionate Use Act, which allows patients with a doctor's approval to use marijuana for medical purposes. But the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public," wrote Judge Andrew Kline. "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

On Tuesday, DEA agents raided the ASPC dispensary in San Bernadino. The agents "descended in force," making arrests and confiscating evidence from the store.

Montana

Last Thursday, Chris Williams rejected a post-conviction plea offer from federal prosecutors that would have cut his prison sentence from as much as 85 years to as little as 10 years. Williams was part of Montana Cannabis, whose other partners have all either been convicted or pleaded guilty to federal drug charges. He faced the decades-long sentence because four or his charges involved having a gun during the commission of a drug crime. Prosecutors offered to drop some charges if Williams dropped his appeals, but he refused. "I have decided to fight the federal government, because for me not defending the things that I know are right is dishonorable," Williams wrote. "Every citizen has a responsibility to fight for what is right, even if it seems like the struggle will be lost. It is the power of the people to control this government that is supposed to protect us. If we shun this struggle, this government will control us instead of protecting us."

On Monday, a state district court judge blocked the state from enforcing some provisions of its new medical marijuana law. District Judge Jim Reynolds said he will suspend enforcement of the law while evaluating its constitutionality. The suspended parts include the ban on medical marijuana providers receiving money for their product, and other provisions that advocates argue essentially shut the industry down. Voters in Montana will vote on throwing out the new, restrictive law next week.

Initiative Watch

With less than three weeks to go until election day, there is a lot of activity on the state-level initiative front- -- but not everywhere. Some campaigns are staying mighty quiet, and that's a strategy that could work for them. Let's get to it:

National

On Monday, former DEA heads and drug czars reiterated their call for the Justice Department to attack marijuana legalization initiatives. The drug warriors are attempting to pressure Attorney General Eric Holder to take a public stand against the initiatives.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of the DEA during the Ford, Carter and Reagan administrations, began the call. "Federal law, the US Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law. And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

That prompted a response from the Marijuana Policy Project: "These former officials are stuck in the mindset that we can arrest our way to decreased marijuana use," said Morgan Fox, the group's communications manager. "This policy has obviously failed and at great cost. We need to treat marijuana as a public health issue and stop wasting resources arresting adults for using something that is demonstrably safer than alcohol. Unfortunately, people like these former officials, who have made careers out of keeping marijuana illegal, are promoting federal interference against reform efforts. Individual states need to be free to experiment with polices that give control of the marijuana market to legitimate businesses instead of criminals and that do not include arrest or incarceration. The federal government should be encouraging states to explore alternatives to ineffective policies rather than expensively and uniformly pursuing continued failure."

Arkansas

On Monday, the Arkansas Pharmacists Association said it would oppose Issue 5, the Arkansas Medical Marijuana Act. The association said it opposed the measure because it does not incorporate pharmacists and would lead to conflicts with federal law. The pharmacists said they weren't taking a position on medical marijuana, only on the initiative. They said if Arkansas wants medical marijuana, it should pursue regulatory changes to get it rescheduled.

On Wednesday, the Arkansas Times endorsed Issue 5. The Little Rock alternative weekly said it has "misgivings" about legalizing medical marijuana given federal opposition, but said it was always a safe bet to line up opposite the "hateful" Arkansas Family Council, which opposes it.

California

See our feature story on the Three Strikes sentencing reform initiative, Proposition 36, this week here.

Colorado

Last Friday, musician Melissa Etheridge endorsed Amendment 64, the state's legalization initiative. She appears on a new radio ad and talks about her personal experience with marijuana, first as a cancer patient, and then as a legalization advocate.

On Sunday, a new poll had Amendment 64 still winning, but with a shrinking margin. The initiative was ahead 48% to 43%, but was seeing declines in support among women, people with a college degree, and some other demographics. A poll a week earlier had Amendment 64 at 50% with a 10-point lead.

On Monday, the United Food and Commercial Workers endorsed Amendment 64, saying it would create jobs and bolster the state and local economies. UFCW Local 7, which represents 25,000 workers in Colorado and Wyoming is the state's largest union. "Amendment 64 will foster economic growth and enhance public safety for our members across Colorado," said UFCW Local 7 president Kim Cordova. "Removing marijuana from the underground market and regulating it similarly to alcohol will create living-wage jobs and bolster our state and local economies with tens of millions of dollars in new tax revenue and savings. By taking marijuana off the streets and putting it in retail stores, we can stop steering money toward gangs and drug cartels, and start directing it toward legitimate, job-producing Colorado businesses."

On Tuesday, two dozen state clergy and faith leaders endorsed Amendment 64. "How we punish people and what we punish them for are central moral questions," said the Rev. Bill Kurton. "If a punishment policy fails to meet its objectives and causes harms to humans, I believe we have a moral obligation to support change. Our laws punishing marijuana use have caused more harm than good to our society and that is why I am supporting replacing marijuana prohibition with a system of strict regulation with sensible safeguards."

Massachusetts

The buttoned-down Question 3 campaign is keeping mighty quiet as its medical marijuana initiative maintains a comfortable lead in polls.

Montana

The I-124 campaign, which seeks a "no" vote to repeal the legislature's gutting last year of the state's voter-approved medical marijuana law, is also staying quiet.

Oregon

Last Friday, Clear Channel Communications agreed to take down a series of billboards put up by groups tied to the Florida-based Drug Free America Foundation, operated by long-time drug warriors Mel and Betty Sembler. The communications giant acted after online protests by Women for Measure 80, the state's legalization initiative. The billboards featured a photograph of a young woman who appeared strung out on crack or meth, not marijuana. "The ads protesting marijuana are being removed because our policy is transparency of advertising campaigns and the advertisers who are sponsoring them," said a Clear Channel spokesman. "These ads include a misleading website that we believe needed to honestly represent the advertiser so the ads are being removed."

On Monday, Measure 80 supporters rallied at the state capitol. Several dozen showed up to show their support.

Washington

Last Thursday, researchers reported that there had been 240,000 marijuana possession arrests in the state in the past 25 years. Police made more than half of those marijuana arrests in just the last 10 years. Nearly four out of five arrested were under age 35, and ethnic minorities were arrested at rates disproportionate to their makeup of the population. The report was prepared by the Marijuana Arrest Research Project, which has produced studies of marijuana possession arrests in New York, California, and major US cities.

Last Friday, I-502 proponent Rick Steves was heckled at the state capitol rotunda by about 20 noisy protestors, including medical marijuana advocates who bitterly oppose the initiative. Four or five of the protestors were escorted out of the building by state police, and Rep. Sam Hunt, an I-502 supporter, got into a scuffle with one of the opponents.

Medical Marijuana Update

The federal rescheduling petition got a day in court, the feds keep up the pressure in California, a dispensary may actually open in New Jersey, and those are just the headlines. There's much more going on, too. Let's get to it:

National

Last week, the National League of Cities adopted a resolution on medical marijuana. The resolution calls on the federal government "to consider a precise interpretation of the CSA to recognize and address whether the medicinal use of marijuana in prescribed circumstances is or is not in conflict with the CSA." The cities complained that they are wasting valuable resources trying to address the conflict between state laws allowing medical marijuana and the federal government's absolutist position.

On Tuesday, the DC Court of Appeals heard oral arguments on an appeal of the DEA's decision to reject the marijuana rescheduling petition. Click on the link to read our feature story on it.

Arizona

Last Friday, a medical marijuana patient sued the state after police seized her marijuana-infused oil. Charise Voss Arfa claims police wrongfully considered the oil labeled "Soccer Moms Tincture" a narcotic instead of marijuana. A tincture is typically an alcoholic extract of plant or animal material or solution. The lawsuit argues the statute defining cannabis is too vague and should not apply to medical-marijuana cardholders who legally participate in the state program. The lawsuit asks the courts to order police to return the oil; to ban police from arresting, prosecuting or taking property from medical-marijuana cardholders; and to declare the state's criminal statute related to cannabis void as it applies to medical-marijuana patients and caregivers.

California

Last Wednesday, the DEA and local police raided seven Long Beach dispensaries and arrested more than 40 people. The raid is just the latest, though possibly the largest, crackdown on medical marijuana in Long Beach since the city's ban went into full effect in August. The ban was a reaction by city officials to a court ruling that the city can't regulate the drug because it is illegal under federal law. City Hall had worked for two years to come up with a permitting system and regulations to control the number of collectives, and once that law was voided, the city council voted to ban medical marijuana rather than risk its unregulated proliferation throughout the city.

Last Friday, G3 Holistic dispensary owner Aaron Sandusky was convicted of federal marijuana charges by a jury that heard no mention of medical marijuana. Sandusky, who operated three Southern California dispensaries, was convicted on two charges, but the jury could not agree on four other counts. He is now looking at a mandatory minimum 10 years in federal prison, and up to a life sentence. Sandusky, who had been free on bail, was immediately jailed.

Also last Friday, Concord elected officials said they are considering an ordinance to restrict medical marijuana cultivation. The move comes after complaints from residents about smelly outdoor grows. "Perhaps looking at having the growth indoors instead of outdoors, that would take care of some of the major concerns we have," said Mayor Ron Leone.

Also last Friday, activists filed papers with the city of Los Angeles for a May referendum to regulate -- not ban -- dispensaries in the city. The Angelenos for Safe Access Committee needs to gather enough signatures to make the ballot. The proposed initiative would increase the city tax on dispensaries from 5% to 6% of revenues, require dispensaries to register with the city, require background checks for operators and employees, and require that dispensaries respect distance requirements from schools and churches. The move comes after the city council first banned dispensaries, then voted to un-ban them in the face of another, successful petition drive.

Also last Friday, the city of Covina took legal action to shut down a dispensary. The city attorney had sought and won a temporary restraining order to shut down the LPC Center, which had opened in the city during the summer, but the dispensary didn't shut its doors. The new complaint alleges that the dispensary operators lack a business license and that the dispensary is a public nuisance because it is in violation of the city's municipal code. There will be a hearing next week where a judge will consider granting Covina a preliminary injunction to force the cooperative to close. According to the complaint, "distributing marijuana, whether for medical purposes or otherwise, is not a permitted use" under Covina's municipal code.

Last Saturday, voters in Eagle Rock rejected most of the medical marijuana slate in neighborhood council elections. The neighborhood has been hit hard by police actions against dispensaries, with support from the neighborhood council. Dispensary operators and supporters had called on Los Angeles residents to vote in the neighborhood election in support of dispensaries, leading to charges of unfair election practices.

On Monday, DEA agents visited some LA dispensaries that had received federal threat letters in September. Agents visited up to 21 dispensaries, reminding them that they needed to shut down. "We do have a couple agents doing follow up," said DEA spokeswoman Sarah Pullen. "It's routine since these letters are going out. We wanted to determine the status of where these places are at." In late September, the DEA targeted 68 dispensaries with threat letters and raided three. The feds aim at wiping out dispensaries in Eagle Rock and downtown LA.

On Tuesday, DEA agents visited an Eagle Rock dispensary, prompting it to close its doors. The Together for Change dispensary had opened in May, after the American Eagle Collective, which operated at the same location, was raided and shut down by LAPD. Together for Change is one of the 68 dispensaries targeted by September federal threat letters.

Also on Tuesday, the Sacramento city council moved to prohibit outdoor marijuana grows. The council voted 8-1 to direct city staffers to draft an ordinance barring them. Council members said the grows were a magnet for crime and a nuisance to neighbors. The council also voted to keep in place existing location restrictions on medical marijuana dispensaries. Those restrictions prohibit the shops from operating within 1,000 feet of other dispensaries, 300 feet from residences and 600 feet from schools and parks. The city has a moratorium on new dispensaries following the federal crackdown, but allows 17 already existing dispensaries to operate.

Colorado

As of the end of July, the number of registered medical marijuana patients passed the 100,000 mark for the first time since September 2011. That's according to figures released last week by the state Department of Public Health and Environment. The number of patients had peaked at more than 128,000 people in June 2011 before shrinking over a five-month period to just over 80,000. The decline was variously attributed to increased dispensary regulations, a glut of medical marijuana available from growers, and the $90 fee for registering.

On Tuesday, Carbondale trustees narrowly rejected a dispensary application. They voted 4-3 to deny CMED a business permit, even though the dispensary has been open for two years. CMED owner Michael Weisser, who has been caught in a regulatory wringer the entire time, demanded to know whether the town was shutting him down and was told the trustees would let him know."You'd better do it quick, because I'm going to move immediately for an injunction against the board," Weisser replied.

Maine

Last Saturday, Maine police returned plants stolen from a medical marijuana grower in Ellsworth. Police initially hesitated to return the plants, citing concerns about violating federal law, but then relented. The grower said he was able to save only part of the crop.

Michigan

Last Thursday, the Michigan Supreme Court has heard oral arguments in a case that will help determine whether dispensaries can sell marijuana to patients who don't grow their own. The case involves a Mount Pleasant dispensary that allowed members to sell marijuana to each other. It was prosecuted by Isabella County authorities, and the conviction was upheld last year by a state appeals court.

New Jersey

On Monday, the Greenleaf Compassion Center in Montclair received state permission to open. It would be the first in the state, and the permission comes nearly three years after the Garden State approved medical marijuana.

On Wednesday, the Compassionate Care Foundation said it wouldn't open a dispensary until next year. The foundation, which plans to open a dispensary in Egg Harbor Township near Atlantic City, has faced delays because of the state's extensive background check process.

New Mexico

On Monday, advocates announced a campaign to keep PTSD as a qualifying condition for the state's medical marijuana program. PTSD is currently a qualifying condition, but its status is threatened by a request to remove it. Advocates aid more than 3,000 New Mexico residents with PTSD are enrolled in the state's program. The advocates, including the New Mexico Medical Cannabis Patients Alliance, the Drug Policy Alliance, and others are calling the campaign Don't Take Away Our Medicine. "We deserve access to effective medical treatments whether we’ve just come home from combat or we are suffering debilitating symptoms from other trauma," said Chris Hsu, NM Medical Cannabis Patient’s Alliance’s Vice President.

Rhode Island

On Monday, the Rhode Island Medical Society joined a lawsuit against the state health department over its recent decision to only allow physicians -- not nurse practitioners and physicians' assistants -- to sign medical marijuana applications. The state ACLU had sued last week on behalf of the Rhode Island Patient Advocacy Coalition, Rhode Island Academy of Physician Assistants and a Bristol patient. Applications signed by nurse practitioners and physician’s assistants had previously been accepted. The medical society said the new policy was arbitrary and that doctors needed to be able to delegate responsibilities to other medical professionals.

Marijuana Scheduling Case Heard By US Appeals Court [FEATURE]

The medical marijuana defense group Americans for Safe Access (ASA) and a number of individual plaintiffs took their case for the rescheduling of marijuana to the US Court of Appeals in the District of Columbia Tuesday. In oral arguments there, they urged the court to order the Drug Enforcement Agency (DEA) to reverse, or at least reconsider, its rejection of a decade-old petition seeking rescheduling.

Now, the battle over rescheduling has moved from DEA and HHS to the federal courts. (safeaccessnow.org)
Marijuana is Schedule I under the Controlled Substances Act, which means the government considers it to have no accepted medical use and a high potential for abuse. Other Schedule I drugs include heroin, ecstasy, and LSD. ASA is arguing that it should be down-scheduled, past Schedule II, which includes cocaine, methamphetamine and other amphetamines, and powerful opioid pain relievers (Oxycontin, morphine, Fentanyl), to Schedule III, which includes less harmful substances, such as steroids, less-powerful opioid pain relievers (hydrocodone, paregoric), and Marinol, or synthetic THC.

Medical marijuana advocates have thrice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; the second was finally rejected after seven years, and it took the agency a decade to reject the most recent one. In the intervening period, 17 states and the District of Columbia have moved to allow for the medical use of marijuana.

The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)

In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana's benefits, and so acted "arbitrarily and capriciously" in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers' access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.

"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told the three-judge panel.

Despite the federal government's obstructionism, Elford was able to cite over 200 studies of marijuana's medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.

Elford accused the government of "bias" in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way "the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium," he told the court.

But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.

"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," Watkins argued.

Marijuana is scary stuff, she told the court. The plant has "adverse physical and psychological consequences" and has been "implicated in hundreds of thousands of hospital visits," Wilkins said.

Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a "marijuana-related" emergency room visit. Additionally, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.

"Marijuana is the most widely abused drug in America," Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.

The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the second petition--from 1995--that the DEA refused to reschedule, the court never addressed the core issues of the case, instead throwing it out because petitioner Jon Gettman, a marijuana researcher and former national NORML executive director, could not demonstrate direct harm from the government's actions.

This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.

"That seems pretty straightforward," said Judge Harry Edwards.

But the DEA's Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.

At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.

"The real question is to what extent we have to defer to the agency," said Judge Harry Edwards.

"Don't we have to defer to their judgment?" asked Judge Merrick Garland. "We're not scientists. They are."

The pair of judges said they would not overturn the DEA's decision unless they found it to be "arbitrary and capricious." But that, of course, is precisely what Alford and the plaintiffs argued it is.

The appeals court will not hand down its decision for some months.

Washington, DC
United States

Medical Marijuana Update

Mitt Romney (mis)speaks out on medical marijuana, the LA dispensary ban is repealed, and the feds keep on grinding away at medical marijuana providers with another conviction in Montana and a lengthy prison sentence in Michigan. And that's just for starters. Let's get to it:

National

On Monday, GOP presidential candidate Mitt Romney weighed in on marijuana policy. Asked by the Denver Post what he thought about Colorado's medical marijuana industry, Romney responded, "I oppose marijuana being used for recreational purposes and I believe the federal law should prohibit the recreational use of marijuana." Later the same day, his campaign clarified to the Washington Post that "Governor Romney has a long record of opposing the use of marijuana for any reason. He opposes legalizing drugs, including marijuana for medicinal purposes. He will fully enforce the nation's drug laws, and he will oppose any attempts at legalization."

Arizona

Last Thursday, the state ACLU joined a lawsuit supporting the Arizona Medical Marijuana Act. The lawsuit, filed by White Mountain Health Center, seeks to compel county and state officials to move forward with the dispensary permitting process. Maricopa County Attorney Bill Montgomery has refused to issue the documentation to any proposed dispensaries in Maricopa County because he claims the law is preempted by the federal Controlled Substances Act. The lawsuit lists Montgomery, Maricopa County, and the state Health Department and its director, Will Humble, as defendants. A hearing is set for October 19.

California

On Tuesday, the LA city council voted to repeal its recent ban on dispensaries. The 11-2 vote came after activists gathered enough signatures to put a referendum repealing the ban to a direct vote. Rather than hold a March election that could give an okay to dispensaries, the council is counting on federal enforcement to accomplish what it hoped to achieve with its ban. "That is our relief," Councilman Jose Huizar said of the DEA raids and threat letters to dispensaries that began last week.

Last Tuesday, the DEA raided an Anaheim dispensary, the Live Love Collective, seizing two kilos of dried marijuana, 75 kilos of marijuana-laced edibles, 900 grams of hash and a kilo of marijuana gel, according to DEA officials. The shop had been warned by the feds that it was violating federal law in November 2011 and was also among 128 dispensaries issued "cease and desist" orders by the city of Anaheim.

Connecticut

On Monday, the state's medical marijuana law went into effect. Doctors will now be able to go online at the Department of Consumer Protection and begin the registration application for qualifying patients. This is the first step in the fledgling program; the agency has until  July 1 to submit new regulations to the General Assembly on how it will be dispensed.

Michigan

On Monday, the Ann Arbor city council postponed action on amending its licensing ordinance. The suggested amendments including removing language suggesting involvement in regulating the industry by city staff, setting a cap of 20 on dispensaries in the city, and licensing 10 dispensaries. The council has steadfastly failed to move on the ordinance revisions since they were proposed at its January meeting, and they could die if not acted on within the next six months.

Also on Monday, a Monroe County caregiver was sentenced to 10 years in federal prison. Gerald Duval Jr. and his son Jeremy had been raided by the DEA and charged with federal marijuana cultivation and trafficking offenses. They were convicted after a trial in which Michigan's medical marijuana law, with which they were in compliance, could not be mentioned. Jeremy Duval was set to be sentenced Tuesday, but there is no word yet on his sentence.  Americans for Safe Access called the Duvals' case "another tragedy from President Obama's war on medical marijuana."

Montana

Last Wednesday, the Montana Cannabis Association asked the state Supreme Court to reconsider its September ruling that a ban on marijuana sales does not violate the constitutional rights of registered users or providers. The ruling overturned a lower court decision to block part of lawmakers' restrictive rewrite of state regulations, and sent the case back to District Court with new instructions. The association argued that a new state law should be held to a higher standard of review. The Supreme Court decision is in abeyance until the justices address the motion and formally send the case back to the lower court.

Last Thursday, a medical marijuana provider was found guilty in federal court of multiple federal charges, including conspiracy to manufacture, possess and distribute marijuana and firearms charges. Chris Williams was the greenhouse operator for Montana Cannabis, where DEA agents seized 950 plants in one of the March 2011 raids that swept the state, decimating its nascent medical marijuana industry. As per usual, he wasn't permitted to argue that he followed state laws regulating medical marijuana.  He said he would appeal. One of his partners in Montana Cannabis, Tom Daubert, recently received a probationary sentence after pleading guilty, but another set of partners, the Flor family, weren't so fortunate. They all got prison sentences, and 68-year-old Richard Flor died in federal prison earlier this summer.

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Medical Marijuana Update

The DEA strikes again in Los Angeles, and the feds are moving to eliminate dispensaries in downtown LA. But the pushback against the crackdown continues. Let's get to it:

California

Last Thursday, demonstrators gathered outside Obama campaign headquarters in Sacramento to protest the crackdown on medical marijuana dispensaries. The demonstration was part of a series of protests at Obama campaign headquarters across the nation sponsored by Americans for Safe Access.

Also last Thursday, the two candidates for LA County DA said they would continue to go after  dispensaries. The remarks by Chief Deputy District Attorney Jackie Lacey and Deputy District Attorney Alan Jackson differed came as the two engaged in their last public debate. Responding to a question from moderator Gene Maddaus of the LA Weekly both took roughly the same line. "It's my position that over-the-counter sales for money of marijuana are illegal," Lacey said. "Those folks are simple drug dealers," Jackson said.

Last Saturday, the Trinity County Sheriff's Office reported it had raided six medical marijuana grows, saying they were all illegal commercial grows hiding behind Proposition 215. The raids resulted in 14 arrests for cultivating and preparing marijuana for sale, and deputies seized $180,000 in cash, 406 plants, and 150 pounds of processed marijuana. The sheriff's office said the amount was far in excess of the personal use amounts for the 14 people, but acknowledged that some of them said they were members of cooperatives.

On Monday, initiative campaigns in San Diego County announced they had scored big endorsements in their bid to allow and regulate dispensaries in Lemon Grove, Del Mar and Solana Beach (Propositions T, H and W, respectively). The endorsements include the San Diego County Democratic Party, the San Diego County Libertarian Party and the San Diego County Green Party.

On Tuesday, the feds targeted 71 Los Angeles dispensaries, with the DEA raiding three.  Federal prosecutors filed asset forfeiture lawsuits against three properties housing dispensaries and sent threat letters to 68 other dispensaries. The feds are targeting every known dispensary in the Eagle Rock and downtown areas of the city, as well as the single store known to be operating in Huntington Park. The federal actions in Los Angeles were done with cooperation from the Los Angeles Police Department, the Los Angeles District Attorney's Office, and the Los Angeles City Attorney's Office. The three dispensaries hit by the DEA with help from the LAPD were the Happy Ending Collective, the Green Light Pharmacy, and Fountain of Wellbeing. Federal enforcement actions -- the asset forfeiture lawsuits and warning letters -- have now targeted more than 375 dispensaries in the Central District of California.

On Wednesday, the feds joined up with local law enforcement in Santa Rosa to swarm a southwest neighborhood in what was described as the region's largest ever mass residential grow bust. Participants included personnel from the Sonoma County Sheriff’s Office, Probation Department and District Attorney’s Office, Santa Rosa Police Department, California Highway Patrol and federal departments of Homeland Security and Immigration and Customs Enforcement. A sheriff's spokesman said the operation was planned after authorities discovered that suspected pot cultivation in the neighborhood had become rampant. "We just looked into this neighborhood and, literally, probably every backyard but two or three have a (marijuana) grow," O'Leary said. "Our goal is to go in there to rid the neighborhood of these, what we think are probably illegal grows."

Michigan

Last Wednesday, a federal appeals court upheld the firing of a Walmart worker who was terminated after testing positive for marijuana even though he was a registered patient. Joseph Casias, who has an inoperable brain tumor, was fired by the Walmart store in Battle Creek after failing the drug test. He sued, but the case was thrown out in district court. The appeals court upheld the ruling of the lower court that the state's medical marijuana law does not regulate private employment, but merely provides protection from criminal prosecution or other adverse state action.

Montana

Last Friday, a federal judge hamstrung the defense of medical marijuana provider Chris Williams, a co-owner of the now-defunct Montana Cannabis. US District Court Judge Dana Christensen held that Williams cannot argue that government officials entrapped him into believing he would not be prosecuted and warned jurors that they must "disregard any statements or argument about the defendant or others purporting to comply or not to comply with state laws concerning marijuana." Williams is the only one of the people charged after a series of March 11 raids to go to trial. One of his partners in Montana Cannabis, Richard Flor, died in federal prison last month, while another, Tom Daubert, was sentenced to probation. The trial was still going on as of Tuesday night.

On Tuesday, federal prosecutors' thresholds for prosecution were revealed. Cases involving less than 500 plants or 100 kilograms will be "disfavored for prosecution in federal court," according to a July memorandum from Montana US Attorney Michael Cotter that was obtained and published by The Independent. In their March 2011 raids, the feds in several instances targeted grows that contained fewer plants than that.

Washington

Last Thursday, protestors in Seattle denounced the federal crackdown on dispensaries there, holding a city hall news conference before rallying at the federal courthouse. In August, the DEA sent threat letters to 26 local dispensaries it said operated within 1,000 feet of a school zone, threatening forfeiture if the businesses didn't shut down within 30 days. The protest was one of a series called across the country by Americans for Safe Access.

Medical Marijuana Update

Last issue, we reported that the DEA had taken the week off. Well, they're back, and so is the push-back. Let's get to it:

National

Last Thursday, the Women's CannaBusiness Network held a press conference in Washington, DC, to call on President Obama to cease enforcement actions against medical cannabis providers while the administration reviews its policies to determine whether they are in the public interest. The group is a project of the National Cannabis Industry Association.

On Monday, Americans for Safe Access called for Thursday demonstrations at Obama campaign headquarters across the country "in an effort to draw attention to the Obama Administration's aggressive efforts to shut down legal medical marijuana dispensaries and obstruct the passage of laws that would regulate such activity." Demos are set for Washington, DC, as well as in the states of Arizona, California, Colorado, Montana, Missouri, New Mexico, Oregon, and Washington.

California

Last Wednesday, the DEA raided Green Heart Collective facilities in Anderson and Redding. "They broke all the windows, vandalized the inside of the building and took all of the medicine," owner Gina Munday said. "We were so surprised." No arrests have been made so far.

Also last Wednesday, the Encinitas city council approved a dispensary initiative for the 2014 ballot. Initiative backers the Patient Care Association had signatures verified by the registrar of voters on August 8, two days before the state deadline for the 2012 ballot, but the council would have had to have called a special meeting to place it on the ballot. It failed to do so.

Last Thursday, Harborside Health Center asked a federal judge to stop its landlord from trying to shut it down. Harborside and its landlords have been hit with threat letters from federal prosecutors, and its San Jose landlord had moved to force it out. But Harborside is fighting everything to do with the federal threats.

Last Friday, Vallejo police raided Nature's Love Collective for the second time. They arrested the operator, just as they did four months ago, the last time they raided it. Vallejo police have raided  nine dispensaries this year despite the city voting to tax and regulate them.

On Monday, an initiative to overturn the LA dispensary ban qualified for the ballot.  City Clerk June Lagmay said activists needed 27,425 valid signatures for their measure to qualify and that a statistical sampling of the signatures showed they had turned in 110% of the amount needed. The city council can now repeal its "gentle ban" ordinance, call a special election, or put the measure on the March 5 city election ballot. In the meantime, the ban is on hold, although LAPD has said it intends to continue busting dispensaries.

Oregon

On Tuesday, the DEA raided the High Hopes Farm grow operation outside Jacksonville. James Bowman, a longtime activist, owns the farm and went public about his activities last spring with a spread in the Oregonian newspaper. Bowman could be the single largest medical marijuana producer in the state. He wasn't arrested, but agents plowed under his crop.

Vermont

As of Sunday, the Vermont Department of Safety has granted conditional approval to two dispensary applicants. One applicant, the Champlain Valley Dispensary, has been approved for Burlington and hopes to be open and serving patients within six months. A second applicant, Patients First Inc., has been approved for Waterbury. The department received five applications this year, but three of them did not meet minimum standards. Under a 2011 law, the state can have four dispensaries and will accept more applications next year if that number isn't reached this year.

Chronicle Film Review: Lynching Charlie Lynch

Lynching Charlie LynchA Film by Rick Ray (2012, Rick Rays Films, 1:40, $29.95 DVD)

Of all the various fronts of the war on drugs, the assault on medical marijuana patients and providers may not be the stupidest -- that distinction probably belongs to the ban on hemp farming -- but it is arguably the cruelest. No fair-minded observer can doubt that marijuana soothes many maladies, and there is an ever-increasing mountain of peer-reviewed scientific and medical research to back that up.

And no one can listen to the testimonials of patients suffering serious ailments about the relief they've found with marijuana without empathizing with their all-too-real suffering. My personal experience is only anecdotal, but I've been meeting bona fide patients for years now, people with multiple sclerosis, people undergoing chemotherapy, people debilitated by agonizing migraine headaches -- all of whom swear by the weed.

Sure, California's medical marijuana allows virtually anyone with $75 and the ability to say "chronic pain" to get a medical recommendation, and many people who arguably suffer no real infirmity take advantage of that, but the fact that some people are using medical marijuana recommendations as a "get out of jail free" card certainly does not negate the reality of marijuana's therapeutic value--it's just one more hypocritical artifact of prohibition.

But it's been nearly 16 years since voters in California passed Proposition 215, starting a social and political phenomenon that has now spread across the country, and the federal government remains intransigent. At times aided and abetted by recalcitrant local sheriffs, prosecutors, and other elected officials, the Justice Department right now is busily putting the screws to California's dispensaries. They've managed to run more than 400 of them out of business in the past year by the exercise of federal muscle: DEA raids, threats of federal criminal prosecution -- sometimes carried out -- and threats of asset forfeiture directed at dispensary landlords.

It seems so dry when you just type the words out on the page, but what we are talking about is the destroying of people's lives by their own government, a war waged against citizens by the people who are supposed to be serving them. Imagine what a DEA SWAT team raid is like, as a nonviolent dispensary operator who's targeted -- and that can be just the beginning. Then they take all your possessions, your computers, your bank accounts, leaving you penniless, probably car-less, possibly homeless -- if you're lucky. If you're not, you're then staring into the maw of the federal criminal prosecution machine, a particularly Kafkaesque prospect when it comes to federal medical marijuana prosecutions, where dispensary operators become "drug dealers" in trials where the words "medical marijuana" are not to be spoken.

Charlie Lynch's sad saga begins a few years earlier, back when George W. Bush was still president, but his tale is all too familiar by now. In his powerfully rendered Lynching Charlie Lynch, award-winning filmmaker, writer, and producer Rick Ray manages to illuminate the human reality (and the inhuman idiocy) of the war on medical marijuana distributors. As many Chronicle readers no doubt recall, Lynch operated the Central Coast Compassion Center in Morro Bay, California, until he was raided, arrested, and convicted on federal marijuana trafficking charges in federal court.

Through interviews with Lynch, his neighbors, his landlord, and local attorneys and politicians, interspersed with TV news accounts and surveillance videos, Ray portrays a socially awkward straight arrow of a man, whose most serious offense before his run-in with Uncle Sam was a speeding ticket (which his mother explains he got expunged by taking a defensive driving course). Lynch found his way to medical marijuana not out of any affinity for the weed or because he hung in stoner milieus (he didn't), but because he heard it might help with his excruciating migraine headaches (it did).

Lynch subsequently tired of driving miles to the nearest dispensary and decided he was interested in opening one in San Luis Obispo County, where he lived. The fastidious Lynch researched the laws, even asking the DEA what its policy on medical marijuana dispensaries was -- it was up to state and local law enforcement, they told him. He filled out his forms, got his business license, rented a property, and had a ribbon-cutting with the Chamber of Commerce in attendance. He had the support of the mayor and other town officials. He was operating within the mandates of state law. He thought he was doing everything right.

None of that mattered to Sheriff Pat Hedges, who like too many in law enforcement who cannot accept laws they don't believe in, and tried fruitlessly for a year to find some way to bring Lynch down. His deputies surveilled the premises, they followed workers and patients from the dispensary, they tried unsuccessfully to set up undercover buys, but they couldn't come up with enough evidence of any violation of state law to get a judge to sign a search warrant.

Then, in a betrayal of his community and out of a sense of frustration that he was unable to nail Lynch, Hedges sicced the feds on him. Hedges' deputies joined forces with DEA agents to raid the Compassion Center and Lynch's residence, where he was shoved to the floor naked with a rifle pointed to his head.

Lynching Charlie Lynch tells the story of his transformation from respected local businessman to convicted federal drug dealer, the sleazy legal machinations of the federal prosecutors turning his prosecution and trial into a sordid charade, a mockery of justice. But his story is bigger than one man. It is also a story about a healing plant and about a nation that can't seem to come to grips with it, a nation that somehow thinks it's justifiable or even sane to persecute people for growing plants for others.

Along the way, Rick Ray takes a few side-trips that only add to the documentary. He talks to University of California at San Francisco researcher Dr. Donald Abrams about how he recommends marijuana for a wide variety of ailments and he talks to Professor Lyle Craker, the Massachusetts plant scientist who has sought -- so far unsuccessfully -- permission from the DEA to grow marijuana for the purpose of conducting clinical trials of its medical efficacy. The stolid, white-haired researcher offers up a powerful indictment of a corrupted federal research process.

Ray also talks to some representatives of the other side, and I want to thank him for giving folks like California anti-drug activist Paul Chabot, anti-marijuana fanatic Dr. Eric Voth and the Partnership for a Drug-Free America's David Evans the opportunity to display their character with their own words. When confronted with Lynch's fate, the smarmy, sanctimonious Chabot, a self-described "Christian" who says there are no legitimate medical marijuana dispensaries, said that he would pray for him "and maybe he will come to terms with what he did and join our side some day."

Similarly, Evans does his best to appear to be a thoughtful, rational human being, but gives himself away when he goes on a rant about the dangers of growing pot."They endanger others by setting up these facilities when there is no proof there," the former prosecutor muttered darkly. "He could have harmed people, killed people, caused cancer, caused birth defects. If someone chooses to put other people at risk, they should be prepared to take the consequences."

Uh, we're talking about growing a plant here.

Charlie Lynch's story isn't over yet, although he's already lost most everything. One of the last scenes of the film shows him putting his remaining belongings into storage after his house went into foreclosure in the wake of his prosecution. And he is still waiting to find out if he will have to go to federal prison. He's already been sentenced, but is appealing.

Lynch may be appealing, but what happened to him at the hands of his own government is appalling. Rick Ray deserves major credit for bringing his compelling story to the screen with grace, tenderness, and just the right touch of righteous indignation.

Bolivia, Venezuela Reject US Drug Criticism

Last Thursday, the White House released its annual determination of major drug trafficking or producing countries, the "majors," singling out Bolivia, Burma, and Venezuela as countries that have failed to comply with US drug policy demands. That has sparked sharp and pointed reactions from Bolivia and Venezuela.

Evo Morales (wikimedia.org)
"I hereby designate Bolivia, Burma, and Venezuela as countries that have failed demonstrably during the previous 12 months to make substantial efforts to adhere to their obligations under international counter-narcotics agreements," President Obama said in the determination.

That marks the fourth year in a row the US has singled out Bolivia and Venezuela, which are left-leaning regional allies highly critical of US influence in Latin America. But while the US has once again put the two countries on its drug policy black list, it is not blocking foreign assistance to them because "support for programs to aid Bolivia and Venezuela are vital to the national interests of the United States."

Despite that caveat, Bolivia and Venezuela were having none of it.

"Venezuela deplores the United States government's insistence on undermining bilateral relations by publishing this kind of document, with no respect for the sovereignty and dignity of the Venezuelan people," the Venezuelan Foreign Ministry said in a communique last Friday.

Venezuela "rejects in the most decided manner the accusations of the government of the United States," the communique said, adding that the presidential determination is "plagued with false statements, political preconceptions and veiled threats," which only repeat its "permanent line of aggression against independent sovereign governments."

Venezuela also counter-punched, accusing the US of allowing "a fluid transit" of drugs across its borders" and "the laundering of capital from drug trafficking through the financial system."

"The government of the United States has become principally responsible for this plague that is the scourge of the entire world," it said.

The foreign ministry added that Venezuela's anti-drug efforts improved after it kicked out the DEA in 2005, that it has been free of illegal drug crops since 2006, and that it has actively pursued leading drug traffickers, including 19 it had extradited to the US since 2006.

Bolivian President Evo Morales, for his part, said the US, home of the world's largest drug consumer market, had no grounds on which to criticize other countries about its war on drugs.

"The United States has no morality, authority or ethics that would allow it to speak about the war on drugs. Do you know why? Because the biggest market for cocaine and other drugs is the United States," Morales said in a Saturday speech. "They should tell us by what percentage they have reduced the internal (drug) market. The internal market keeps growing and in some states of the United States they're even legalizing the sale of cocaine under medical control," the Bolivian president said.

It's unclear what Morales was trying to say with that latter remark. Although as a Schedule II drug, cocaine can be and occasionally is used medically in the United States, there are no current moves by any US state to take that further. Some 17 US states and the District of Columbia have, however, moved to legalize the distribution of marijuana under medical control.

"I'm convinced that the drug trade is no less than the United States' best business," Morales added, noting that since the first international drug control treaties were signed in 1961, drug trafficking has blossomed, not declined. He said he has suggested to South American leaders that they form a commission to report on how well Washington is doing in its war on drugs.

Morales also took the occasion to lambaste the US for opposing Bolivia's request before the United Nations to modify that 1961 treaty to acknowledge that chewing coca leaf is "an ancestral cultural practice" in the Andes.

Like Venezuela, Bolivia protested that it, too, has been fighting drug trafficking. The Bolivian government said that it had seized 182 tons of cocaine since Morales took power in 2006, compared to only 49 tons confiscated in the previous five years. Bolivia has seized 31 tons of cocaine so far this year, most of it from Peru, the government said.

The US presidential determination named the following countries as major illicit drug producing or trafficking countries: Afghanistan, the Bahamas, Belize, Bolivia, Burma, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Laos, Mexico, Nicaragua, Pakistan, Panama, Peru, and Venezuela.

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