Judge: Medical Marijuana Necessity Defense Doesn’t Apply In Federal Court Five medical marijuana patients from Washington state are set for trial in a federal court, and the judge says the state’s medical marijuana laws can’t be used in their defense.

May 08, 2014 | Kris Hermes

Katie Rucke, MintPress News

Five medical marijuana patients from Washington state won’t be able to use the state’s medical marijuana legalization laws or say they are medical marijuana patients during their federal trial for cultivation and possession of marijuana that is expected to begin in Spokane, Wash., on Monday.

The “Kettle Falls 5” case, as it is known, is the trial of five people charged with violating the federal Controlled Substances Act by growing some 44 premature cannabis plants on their 34-acre property and possessing roughly 5 pounds of raw cannabis and a freezer full of marijuana-infused butter, cookies and tea.

Larry Harvey, 70, suffers from numerous ailments including heart disease, severe gout, high blood pressure and insomnia. His wife, Rhonda Firestack-Harvey, 55, suffers from conditions including chronic back pain, osteoarthritis, depression and anxiety. Firestack-Harvey’s son, Rolland Gregg, has suffered from chronic pain since he broke his neck and back in a snowboarding accident in January 2000, as well as irritable bowel syndrome and ulcers — conditions he has had since childhood. Gregg’s wife, Michelle, suffers from an eating disorder, and Jason Zucker, a family friend, has suffered from chronic back pain since he crushed his vertebrae in a snowboarding accident in February 2000.

Their conditions qualify all of them for Washington state medical marijuana patient ID cards. All of the defendants had valid patient ID cards and were in compliance with state laws, but U.S. District Judge Fred Van Sickle of the Eastern District of Washington sided with the federal prosecutors when he ruled on Tuesday that the medicinal use argument didn’t apply in this case.

“The intent of the defendants is not relevant to the issues,” Van Sickle explained in his ruling. “There’s this concept of reliance on state law and the like. That’s not relevant either.”

All five defendants face a minimum of 10 years in prison. Each were charged with six felonies in February: conspiracy to manufacture and distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; distribution of marijuana; possession of a firearm in furtherance of a drug trafficking crime; and maintaining a drug-involved premises.

Although U.S. Attorney General Eric Holder has publicly announced his support for sentencing reform and removing mandatory minimums for nonviolent drug crimes, the federal prosecutors working on the Kettle Falls 5 case have opted to ignore efforts for sentencing reform and try the five under the old rules. The defendants were offered a plea bargain last week during pre-trial hearings, which would have involved a maximum prison sentence of three years, but all five rejected the deals.

The maximum penalties each defendant could face range from 40 years to life in prison.

 

War on drugs or war on patients?

While 21 states and Washington, D.C., have voted to legalize medical marijuana, the drug’s illegal federal status means that medical marijuana patients are not fully protected from prosecution for using this alternative medicine.

The Obama administration and the Department of Justice have repeatedly told medical marijuana advocacy groups such as Americans for Safe Access that they do not target individual patients, but big operations with possible links to cartels. But the DOJ has spent more than $3 million to prosecute the five patients in this case so far, even though the five were in compliance with state law and there have been two DOJ memos issued in recent years — one in June 2011 and one in August 2013 — that specifically say that individual patients should not be tried in federal court for using the drug.

As the federal government continues to proceed with the Kettle Falls 5 trial and is expected to spend around $13 million on the trial and prosecution, Harvey traveled to Washington, D.C., earlier this week, hoping to persuade Congress to stop funding the prosecution of medical marijuana patients who use the substance to help with serious medical conditions and follow state laws and ultimately stop the war on patients.

“It’s wrong what the federal government is doing to us,” Harvey said in a press release, explaining why he made the trip to D.C. “I just want to make sure Congress knows what’s happening so they can fix the law and so there’s no more money wasted on cases like mine.”

In addition to concerns about the defendants’ inability to be protected from federal prosecution and their inability to use state law or claim medical marijuana use out of necessity, some medical marijuana legalization advocates are also concerned about what will happen to the health of the five patients if they are sent to prison.

Though none of the patients have been able to use medical marijuana since Harvey’s home was raided in August 2012, and won’t be able to access their alternative medicine unless they are found innocent, there is concern about their health deteriorating — Harvey’s health, in particular.

When the 70-year-old was jailed for 17 days after the 2012 raid, he was not only denied access to medical marijuana, but he was also given a diet that consisted of highly-processed foods, which actually worsen some of his medical conditions. He was not given his other medications in a timely manner, either, and as a result, Harvey suffered “irreversible bodily harm” in the form of a permanent foot disfigurement.

Though Judge Van Sickle’s block on the defendants’ abilities to properly defend themselves in court is worrisome to many, the five could still be found not guilty if the jury opts to invoke its right of jury nullification or refuses to apply federal marijuana laws. This could send a message about the social issue to federal officials or illustrate that the federal law goes against what the jury believes to be just, moral or fair.



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