Cali-nullification

August 22, 2007

Cosmo Garvin, Sacramento News & Review

There's an inscription carved into the plaza at the entrance of the Federal Courthouse downtown. Maybe you’ve seen it: “There are not enough jails, not enough policemen, not enough courts to enforce a law not supported by the people.”

Last week in federal court, defense attorney Laurence Lichter tried to read that phrase, originally uttered by Vice President Hubert Humphrey, to a jury last week, explaining why his client didn’t deserve five years in federal prison.

Judge Frank Damrell wasn’t having it, and cut Lichter off during his closing statement.

So goes the trial of Dr. Mollie Fry and her husband, Dale Schafer, medical-marijuana activists convicted last week of “conspiracy to manufacture” pot and distribute it to sick people.

All along, the couple tried to argue that they were following state law, created by Proposition 215, the medical-marijuana initiative passed by voters in 1996.

But this is federal court, and here California’s medical-marijuana laws are not welcome.

Fry, now 51, is a physician married to Schafer, a 53-year-old attorney. Back in the mid-1990s, Schafer was making anywhere from $60,000 to $100,000, enough to support them and their kids, working for insurance companies on workers’ comp cases. They lived comfortably enough that Fry had stopped working, fed up with the state of health care in California.

But in 1997, Fry was diagnosed with breast cancer and eventually lost both of her breasts to the disease. The effects of chemotherapy were so severe that her doctor prescribed her Marinol, a synthetic form of one of the chemicals in marijuana to help alleviate her nausea and pain. She found that regular old pot worked faster and made her feel better. The couple started to grow pot at their house, in the foothills near Cool.

But she and Schafer became convinced that marijuana was good medicine. A few years earlier, California voters passed Proposition 215, which opened the door to patients who wanted to use marijuana as medicine. And it promised protection for doctors and caregivers who recommend pot and provide pot to sick people.

So Fry and Schafer created the California Medical Research Center. Patients would bring their medical records, and Fry or a physician’s assistant would evaluate them and determine whether to issue a recommendation for marijuana. The checks were made out to Schafer. The fee was on a sliding scale, but $200 was the typical charge. Fry told SN&R that the fee was charged even if no recommendation was issued.

They also grew pot, for their own use (Schafer suffers from hemophilia and chronic back pain) and some more for patients. They are careful to say that that pot was free, but they did charge a delivery fee. The small bags were dropped off by a clinic employee. Usually the fee was about $10 for an eighth of an ounce—far below its street value. And unlike your pot connection, Doc Fry took $30, $40 and $50 checks from clients, gave receipts and kept records of each baggie.

According to Fry and Schafer, the couple was in regular contact with local law enforcement. “We were complying with state law. We are caregivers. We grew in reasonable amounts,” said Schafer.

But as more and more pot clubs and doctors have found out since the passage of Proposition 215, state law hasn’t provided much protection from a federal government set on eliminating medical marijuana. Federal law then, as now, still prohibits marijuana, medicine or not, just as it does LSD, heroin and biker crank.

And, despite being in contact with local agencies and running the clinic out in the open, the feds secretly started laying a trap for Fry and Schafer.

In May of 2001, the U.S. Supreme Court ruled that nobody accused of using or growing marijuana would be allowed to use “medical necessity,” including the provisions of Proposition 215, as a defense. It was now open season on pot doctors and cannabis clubs, as Fry and Schafer soon would learn.

On September 28, 2001, Schafer and his daughter, Caroline, and son, Cody, returned home to see a line of dark SUVs in their driveway, and federal Drug Enforcement Agency officers with guns drawn. Fry was home when the DEA arrived, she was handcuffed and forced face down in the dirt while the agents tossed the house. (See, “Reefer madness,” by Chuck Seidel, SN&R Feature Story, November 29, 2001).

Federal agents found 34 marijuana plants and carted away stacks of patient records. They searched and seized records from CMRC’s offices at the same time.

That was almost six years ago. It would be five years before the feds could get a grand jury to indict them. They were allowed to continue writing recommendations for patients, but the couple didn’t grow pot for themselves or anyone else again.

Instead, the couple periodically was subjected to random drug tests—even though they had not been convicted of any crime. Assistant U.S. Attorney Anne Pings justified the testing by saying the couple would not be able to mount an adequate defense if they got high. Both have now switched to prescription painkillers such as OxyContin and Valium.

Really, the only hope Fry and Schafer ever had was “jury nullification.” They hoped someone on the jury of their peers would decide, as voters in California and a dozen other states have, that the federal law was not fair, “not supported by the people.”

The fact that high profile attorneys like Tony Serra and Lichter took on the El Dorado couple’s case pro bono underscores how important the case had become to the medical-marijuana movement. Though their lawyers worked for free, the other expenses of putting on a defense has cost the couple nearly $100,000.

Local talk show host Christine Craft dedicated the last segment of her radio show every day to the trial. In interviews with Schafer, Fry and their attorneys, Craft frequently talked about the notion of jury nullification and blasted the U.S. government attack on medical pot. Aside from whipping up the ire of her mostly liberal listeners, Craft’s show got the attention of the case’s prosecutors, who apparently listened to and tape recorded the show every day. Pings grumbled that the broadcasts threatened to “taint the jury pool,” and even tried to use Fry’s words on the program as evidence in the case, arguing that some of her comments constituted a confession. But Judge Damrell refused to let the jury hear that tape and blew off Pings’ claim that Fry had confessed to anything.

He was less generous whenever the defense tried to bring in what they felt was at the heart of the case: Proposition 215 and the fact that the people of California had rejected federal law and adopted their own medical-marijuana law.

“All of the important issues, the judge has ruled, are out,” Lichter, Fry’s attorney, told SN&R during the trial.

This led to some almost comical—and, for the defense, deeply frustrating—exchanges between the two legal teams and Judge Damrell.

During closing arguments on August 15, Serra, who represented Schafer, was frequently interrupted by Pings.

“Marijuana is not a dirty word,” Serra told the jury. “For her and for Dale, and for many, it is a medicine,”

“Objection your honor,” Pings said, popping out of her chair.

“Sustained,” Judge Damrell said.

Later, Serra tried to tell the jury his client was an idealist, not a greedy drug dealer.

“He dropped out of the legal profession. He was not motivated by profits. From their perspective, what they were doing was good and right. What is good and what is right can not be illegal,”

“Your honor! Objection! He’s talking about jury nullification!”

“Sustained. Counsel that is not the law!” Damrell scolded.

Indeed, Judge Damrell told Serra he had “crossed the line” after Serra asked the jury to consider that the case was biased, a political prosecution emanating from Washington, D.C. Such bias, he said, constituted reasonable doubt.

“If this case has an ulterior motive,” Serra explained. “If this entire case is intended to stop the medical-marijuana movement!”

“Objection!”

“Sustained!”

After closing arguments ended last Thursday, it took the jury just three hours to return guilty verdicts. Judge Damrell set a sentencing hearing for November 26, the Monday after Thanksgiving.Because the jury decided that the couple had grown more than 100 plants, they face a federal “mandatory minimum” of five years in prison, and up to $1 million in fines.

The defense says there were never 100 plants at any one time. Remember, the DEA only found 34 when they raided the couple’s home, which they argue is consistent with the “reasonable personal use” provisions of Proposition 215. But federal law allows the jury to add up all the plants that were grown “over the course of the conspiracy,” in this case three years.

The couple already is planning to appeal, pinning their hopes on Ninth Circuit Court of Appeals justices to allow Proposition 215 back into the courtroom. “I thought this was California. I thought we were doing the right thing,” said Fry.

It remains to be seen whether the couple will remain free during the appeal process or if they will need to mount their appeals from prison.

 



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