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Protecting Marijuana Patients in WA. A Plea For Help

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From Douglas_Hiatt@hotmail.com

Seattle may become the first American city to enact a law protecting marijuana users from criminal penalties. Unfortunately, it is uncertain how well the lowest-priority measure, I-75, will actually succeed at protecting marijuana users. http://sensibleseattle.org/ Four years after enactment, Washington’s Medical Use of Marijuana Act, I-692, is failing to protect medical marijuana patients from prosecution and forfeiture. Mass-media news sources are sadly deficient in their duty-few are aware that Washington State’s progressive medical marijuana law has become meaningless by use of a prosecutorial loophole.

The Shepherd Opinion (http://www.cannabismd.org/news/shepard.php)

Earlier this year, a division of the Washington State Court of Appeals handed down a ruling that threatens the legal status of every medical marijuana patient in the state.(State v. Shepherd, 110 Wn. App. 544, 2002) A designated “caregiver” Shepherd had been convicted in a stipulated facts trial in Superior Court in Spokane. On appeal, Division Three of the Court of Appeals applied a strict construction test to the State initiative and read unwritten and impermissible requirements into the compassionate initiative.

The Court required the exact use of the phrase “the potential benefits of the medical use of marijuana would likely outweigh the health risks . . .” (for a particular patient) in order for the recommendation to be valid. This has resulted in prosecutors seeking pre-trial orders excluding the defense and any mention of medical marijuana-ruthlessly exploiting a technicality to deprive sick people the legal rights granted under Initiative 692. The Shepherd Opinion creates a mean spirited hyper-technical requirement that automatically disqualifies an estimated 30 percent of known WA state mmj recommendations due to the common substitution of the word “may” for the phrase “would likely” in the crucial sentence: “. . . the potential benefits of the medical use of marijuana would likely outweigh the health risks . . .”

The Appellate Court also ruled that a physician must define the amount required by a patient in order to satisfy the “sixty day supply” limitation of Washington’s medical marijuana law, even though that stipulation is clearly not required under the statute. Moreover, any attempt to satisfy the Court’s demand on the sixty day supply clause would contradict established precedents protecting doctors from federal prosecution. (See Conant v. McCaffrey/Conant v. Walters, 00-17222) In October of 2002, the Washington State Supreme Court declined to hear the Shepherd case, letting stand a controlling opinion that gives prosecutors the ability to disqualify most medical marijuana recommendations based on these unjust and untenable technicalities.

Appellate attorneys agree that Initiatives should be broadly construed to effectuate their intent, and speculate that Shepherd may have been declined due to deficiencies in the record. Appellate attorneys remain hopeful that one or more cases with a good record can be taken up to the Washington Supreme Court to reverse Shepherd and clarify the law for patients. The cases outlined below are likely candidates for reversing these precedents that currently undermine the will of Washington State Voters.

Cases affected by the Shepherd Opinion

The State of Washington v. Bruce Buckner, Grays Harbor County cause # 01-1-00592-1: Bruce Buckner had suffered from Crohn’s disease for thirty years before he was arrested for growing 56 small marijuana plants in his home. Bruce was arrested and exercised his Miranda rights before officer’s asked for his medical marijuana documentation. Officers did discover medical recommendations for Bruce and another qualified patient at the time of the arrest, but the technicalities of Shepherd leave Bruce without an affirmative defense to charges of “manufacturing with intent to deliver”. Douglas Hiatt has been associated on this case, pro bono, since mid 2002 and has recruited noted appellate attorney Suzanne Elliott, Esquire for assistance in Appellate briefs. After seven months of motions, Hiatt is now preparing for a March 2003 evidentiary hearing where facts will be established and testimony will be taken for the trial court and to preserve and develop the record for Appellate and Supreme Court motions that will be required to rescue Bruce’s case following the certainty of conviction due to technical conditions set forth in the Shepherd Opinion.

The State of Washington v. Monica Ginn, Thurston County cause # 02-1-00799-0: Monica Ginn is a qualified caregiver and a qualifying patient who attempted to comply with the state law. She is another victim of the Shepherd decision technicalities. Hiatt has been associated on this case, pro bono, since October 2002. The trial is currently scheduled for mid 2003. Ms. Ginn is finally out of custody-she has already served substantial time in jail on this case, pre-trial.

City of Seattle v. Real Property Known As 10522 3rd Ave NW, cause # 02-2-14640-6: Ralph Wilson suffers from multiple sclerosis, but that has not prevented him from working at three different jobs to pay his mortgage. Ralph does have a recommendation to use medical marijuana, and the King County Prosecutor has so far declined to file criminal charges against Ralph, but that has not prevented the Seattle City Attorney’s office from executing forfeiture litigation to appropriate Ralph’s single bedroom house. Ralph’s financial records and documentation were voluntarily provided to the city attorney’s office and Hiatt requested a meeting with Seattle City attorney, Tom Carr, to no avail. Even more alarming, the City Attorney recently offered to dismiss the case in exchange for the unjustified payment of $13,000.00, .simply because his doctor’s recommendation does not meet the requirements of Shepherd. The civil case is set for a jury trial in early 2003. Hiatt has represented Ralph throughout the proceedings.

Guilty until proven innocent

I-75, Seattle’s lowest-priority for marijuana enforcement initiative will be on the 2003 ballot. If passed, people like Ralph Wilson might be better insulated from the personal ruin of criminal prosecution. If the general public were aware of Ralph’s plight, there would certainly be greater enthusiasm for passage of I-75. But Ralph’s house may be forfeited long before next November. I-692, the 1998 medical marijuana law, should be sufficient to protect Ralph, but it is ineffectual without an expert criminal attorney applying a complicated and costly defense. A part of the problem is the system itself. Prosecutors are not used to being challenged. In most cases, defendants have committed a crime, and defense attorneys merely mitigate charges and sentencing. Prosecutors must learn that laws protecting patients from prosecution cannot be applied arbitrarily or selectively. Law enforcement officers must become better educated on RCW: 69.51A, Washington’s voter-approved statute protecting medical marijuana patients. Unfortunately, the education of our authorities takes place in the courtroom.

The tip of the iceberg

Defending cases affected by the Shepherd Opinion is the only means of maintaining legal protections enacted in Washington State’s Medical Use of Marijuana Act. Cases such as those described above will define legal actions for all medical marijuana patients in Washington. Those cases are, however, merely the most prominent of many challenges handled by defense attorney Douglas Hiatt. In 1999, the Seattle Housing Authority (SHA) sent written notice prohibiting the use of medical marijuana in federally-subsidized public housing. Hiatt engineered a “don’t ask, don’t tell” policy with SHA that served to shield several AIDS patients from homelessness. A similar arrangement was negotiated with a private AIDS hospice in Seattle that had also given notice to a blind and wheelchair-bound AIDS patient. Following the US Supreme Court decision in the Oakland Cannabis Buyers Co-operative case, and also with the change in federal administration, the tenuous security developed by Douglas Hiatt has been abandoned. Currently, several severely ill and legally qualified patients in Seattle are at risk of losing their federally-funded housing. Hiatt would welcome the opportunity to litigate these cases in federal court were any of these patients able to furnish basic funds for legal expenses. While his arguments might fail under various motions, the sympathetic Seattle press would definitely cover these cases. (Please see the attached news story generated by Hiatt for protection of clients Levine and Derenzy.) Hiatt believes drawing public attention to the federal punishment of sick people for their choice of health care would in itself bring some resolution to this conflict between state and federal laws.

Douglas Hiatt, Esquire-medical marijuana defense attorney

Douglas Hiatt has spent the majority of his career serving as a public defender. Most recently with Northwest Defender Association in Seattle, and with the Skagit County Public Defender’s Office; developing an acute appreciation for the injustices of our legal system. Hiatt’s concern for downtrodden victims of drug war aggression compelled him to enjoin private
practice with deepening resolve. As a member of the Federal CJA panel, Hiatt continues to take indigent clients in federal prosecutions. Hiatt’s long experience in marijuana law predicated his current association with the Law Office of Jeff Steinborn, renowned marijuana defense attorney in Seattle. A champion of the underdog and savior of the sick and poor, Hiatt has spent many years handling complicated medical marijuana defense cases largely pro bono. Although intended to protect marijuana patients, the passage of Initiative 692 in 1998 actually created a plethora of situations requiring delicate behind-the-scenes negotiations as well as bold courtroom strategies in order to circumvent certain legal disaster for victimized clients. Recent developments in Washington State law have drastically intensified the legal struggles of persons who use marijuana with their doctor’s approval. Following the Shepherd Opinion, Hiatt has been inundated with complicated prosecutorial challenges on virtually every medical marijuana case now pending. His is the only attorney’s office expert in medical marijuana defense in WA State-defending disadvantaged clients on a shoestring budget-and he is becoming overwhelmed with the burden.

Martin Martinez, mmj patient, patient advocate, author

Martinez has profound experience in the education of legal authorities to the cultivation and use of medical marijuana-his 1996 criminal defense, prior to the 1998 Medical Use of Marijuana Act, was the second medical necessity case in the history of the State of Washington. It cost nearly two years of legal battles, two arrests, and included personal expenses of nearly $25,000.00 in legal fees. Martinez continued the fight in Oakland, CA as one of thirty plaintiffs that were denied the rights of medical necessity by the United States Supreme Court in US vs. Oakland Cannabis Buyer’s Co-operative. During that same time period, Martinez created the first comprehensive summary of existing scientific data: The New Prescription – Marijuana as Medicine, (Quick American Archives, Oakland, 2000). Working with medical marijuana expert Francis Podrebarac, MD, and the Sonoma Alliance for Medical Marijuana, Martinez helped free several incarcerated patients and helped prevent a criminal conviction in more than one high-profile case. Returning to Washington State, Martinez was invited to testify before the Washington State Legislature on the crucial “60 day supply” clause of Washington’s medical marijuana law. Martinez has also served as expert witness on patient cultivation and use in several marijuana cases, and is currently deposed as expert witness in all of the medical marijuana cases listed above. Martinez currently represents several hundred qualified mmj patients who have contributed over $10,000.00 to medical marijuana legal defense in 2002. Relief from the constant threat of criminal and civil persecution is his only pertinent motivation.

Please help us fight the war against the war on medical marijuana

Hiatt and Martinez have been fighting the State of Washington for the use of medical marijuana since before the passage of statewide ballot measures in California and other Western States. With the exception of a $1,000 contribution from Lester Grinspoon, MD in 1998, and $3,000 from Canadian seed-baron Mark Emery, Hiatt and Martinez have conducted their small campaigns completely independent of any financial support. Now is the time for all good people to come to the aid of this movement. The crisis is real-medical marijuana is losing in the courts because virtually all of the defendants are simply unable to afford an adequate legal defense. If we wait, it will be too late. Please help us establish a medical marijuana legal defense fund in Washington State.

Contact Douglas Hiatt, Esquire:
1218 3rd Ave, Suite 1800
Seattle, WA 98101

For more information on medical marijuana in Washington State, please see: www.CannabisMD.org .