Medicinal marijuana user won't face trial

September 08, 2004

Ginny Merriam, Missoulan

The Missoula woman charged in May with possession of dangerous drugs and drug paraphernalia because of her medicinal use of marijuana will not be prosecuted if she is 'law abiding' for the next nine months. But it's not clear what she'll have to do to be 'law abiding' and whether her continued use of marijuana for her chronic illness and pain would send her to court.

In an agreement with prosecutors, Robin Prosser said she will 'remain law abiding and shall commit no acts that could result in charges for violations of federal, state or local law.' However, that agreement also says, 'Defendant's use of treatment recommended by her health care providers for her chronic painful permanent medical condition is not a violation of this subsection.'

Prosser's case presented authorities with a unique situation that began May 10 after she tried to kill herself with prescription drugs in her Missoula apartment. When her psychologist, Paul Bach, discovered a suicide e-mail from Prosser that morning in his office computer, he went to her apartment. He called police when she didn't answer the door. Inside her apartment, where Prosser was semiconscious, police officers found a small amount of marijuana and pipes for smoking it. She was charged with possession of dangerous drugs and possession of drug paraphernalia.

Prosser has lived nearly 20 years with an immunosuppressive disorder that's related to lupus. It causes bone pain, muscle spasticity, irritable bowel, constant migraines, spinal pain and other symptoms. She is allergic to narcotic prescription drugs. The only thing that has given her relief, she says, is marijuana, which she smokes. But the strain and expense of getting the illegal drug is difficult, and the dry spells are overwhelming. She has lived on Social Security disability for 14 years and has lost nearly everything she owns.

Two years ago, Prosser fasted for more than a month in a public plea for the legalization of the use of marijuana for medical purposes.

She appeared in court on May 27. She told a reporter that day, 'I couldn't get the medicine I needed. So I decided I'd rather die than live with that pain.'

Prosser did not want to plead guilty because she was afraid of the maximum sentence Judge Don Louden told her she could draw - one year in jail. She had no money to hire an attorney, she said. But Missoula defense attorney John E. Smith volunteered to represent her free.

Short of an outright dismissal, Smith said, the deferred prosecution agreement is the best result for Prosser.

'Trials are stressful,' he said. 'She doesn't need more stress in her life. She has only so much energy.'

The agreement is best for everybody, he said.

'It's a win-win,' he said. 'The prosecution is not giving up the ability to prosecute the case, and my client's not giving up the right to defend herself.'

City authorities are vague about what the 'use of treatment recommended by her health care providers' means. Assistant City Attorney Judy Wang would not say whether 'treatment' includes the medicinal use of marijuana.

The agreement is not an attempt to weigh in on the controversial topic of medical marijuana, she said, which is the subject of an initiative that will appear on the Montana ballot in November.

'Each case needs to be evaluated on its unique facts,' Wang said. 'That was the best just resolution.

'It just seemed like a reasonable resolution given the facts and circumstances of the case,' she said.

Paul Befumo, the campaign spokesman for the Medical Marijuana Policy Project of Montana's effort to get voters to approve Initiative 148 protecting patients, doctors and caregivers from arrest and prosecution, considers the agreement in Prosser's case a victory.

'They basically have passed I-148, but only for her,' he said. 'The rest of the people of Montana deserve the same consideration. Š It's definitely a good resolution for Robin.'

Missoula Police Capt. Marty Ludemann said that the use of marijuana, even if recommended by a health care provider, could not be included as a treatment that's considered law abiding, even if it's recommended by a health care provider.

'It can't be marijuana,' he said. 'Montana doesn't recognize medical marijuana. The court can't condone the use of medical marijuana. The judge can't condone the use of illegal drugs for any medical condition.'

Law enforcement has to abide by the wishes of the Legislature, he said.

'If it happened tomorrow under the same circumstances, we would arrest her again,' he said.

That's true, said Smith.

'The police were doing their job as the Legislature sees the law,' he said. 'Personally, I feel that people should be able to use this drug medically if they need it, whether it's Marinol or whatever form they need.'

Bach, who has been Prosser's psychologist for six years, said that 'recommend' is too strong a word for his role in her medical use of marijuana. He is not licensed to prescribe drugs. However, he said, he has never tried to dissuade her.

'The longer I've known her, the more apparent it's been to me that it is of therapeutic value to her,' he said.

There is significant existing science, he said, to support marijuana's benefit in certain cases. Prosser's suicide attempt was a serious one, without question, he said.

Prosser, who asked Smith to talk about the case for her, is in a hard spot because the drug Marinol does not work for her. Marinol contains a synthetic version of the active ingredient in marijuana.

'The ingestion of marijuana, the use of that substance, is the only way for her to get relief,' he said. 'She does much better with her pain, and she's much more cogent with the use of marijuana.'

Reporter Ginny Merriam can be reached at 523-5251 or at gmerriam@missoulian.com.


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