Medical-marijuana user taken on a bad trip by legal system
March 30, 2007
David Harsanyi, Columnist, Denver Post
Sometimes there's a fine line between consent and coercion.
Jack Branson learned that lesson the hard way in October 2004 when officers from the North Metro Drug Task Force knocked on his door.
Would Branson give consent to these officers to conduct a warrantless search of his home in Thornton?
Well, of course he would consent - especially after, as Branson tells it, the dozen or so armed cops explained, in detail, the needless tragedies that would befall his home if they were forced to go through the trouble of returning with a warrant.
In they went.
The police, naturally, knew exactly what they were looking for and quickly seized about a dozen marijuana plants Branson was growing in the backyard.
Charged with felony cultivation and possession with intent to distribute, the 38-year-old Branson, who is in a 20-year fight with HIV, is now facing a maximum six years in prison.
Branson, who had no previous criminal record, claims that a physician named Dr. Cynthia Firnhaber verbally recommended medical marijuana to him in 2002 to help ease his pain.
"That or pick out a hospice which you'd like to die in," Branson alleges the doctor told him.
Firnhaber, who was then at the University of Colorado at Denver and Health Sciences Center, refused to put the marijuana recommendation in writing, according to Branson's lawyers, because CU is a federally funded institution and she would be in danger of losing her job.
Branson has since obtained the proper medical marijuana paperwork from a doctor - proving only that his need for medical marijuana was not fabricated.
"Physically it helps with the nausea and my appetite," Branson explains. "It's the only way I can keep food down and my medications. Plus, I'm able to focus a little better. Rather than being so anxious and depressed about my prognosis, I think about what I need to do to try and survive rather than always feel the anxiety of dying."
The main problem for the defense will be Firnhaber. She now teaches in South Africa at the University of Witwatersrand, where she's a specialist in fighting AIDS. Securing her live testimony in court could prove difficult. Written testimony won't do. And even if they can get her on the phone, a judge would have to allow it.
Yet, the most difficult aspect to understand is why this case is going to trial next week in the first place.
Colorado voters passed Amendment 20 in 2000, allowing doctors to recommend marijuana to patients with debilitating diseases - just like Branson's.
Pleading down the case might have been possible for Branson, were it not for two factors:
The first is principle. Branson doesn't believe he did anything wrong. The second is self-preservation. Any drug conviction could mean Branson might lose his Medicaid or Social Security benefits.
As Branson is too weak to hold down a job, he needs the assistance to survive.
"I don't want to die in jail," Branson tells me. "Actually, I wanted to see if there was some way I could have a sentence of lethal injection if I was found guilty. ... If I need to take it into my own hands, I will do so."
Pretrial drama? Who knows? But it is clear that a peaceful man using marijuana for medicinal purposes, just as voters had intended in 2000, may now die in prison.
Of course, however tragic our situations, we can't pick and choose which laws to follow. And Branson did not have the proper paperwork.
But district attorneys (and the one in Adams did not return my call) do pick and choose whom they prosecute - by prioritizing and weighing the importance of each case.
At the very worst, Branson was engaged in a victimless crime. This isn't a burnout deadhead with a debilitating case of bad vibes looking for a legal toke.
Does Branson deserve jail for this crime? Do the taxpayers of Adams County deserve to pay for this prosecution?
I'm not sure any reasonable person would say yes.
David Harsanyi's column appears Monday and Thursday. Reach him at 303-954-1255 or firstname.lastname@example.org.