Medical Pot Users Get Burnt
Lynn and Judy Osburn were preparing for a day of working with their horses on Sept. 28, 2001, when they heard the deep thump of a helicopter suddenly shattering the silence of the Ozena Valley. Sitting in the kitchen of their house in the Los Padres National Forest, their hearts sank. A line of 15 unmarked SUVs and one Ventura County Sheriff's car pulled up to their horse gate. As the caravan roared up the gravel drive, their four dogs exploded in furious barking and horses scattered through the sage scrub in a panic.
The Osburns knew instantly what was going down. Every county and federal official from Ventura to downtown L.A. knew they grew marijuana; the Osburns had met with them and discussed it openly. Somewhere on the property was allegedly a field of 270 tall, stinky plants about ready to harvest. Lynn, 53, and Judy, 50, gathered themselves. They stepped into the brilliant mountain light, hands high so no one would have any reason to shoot.
"Their lead investigator told us they didn't want to be there," says Lynn, sitting at his kitchen table. "They had argued for a long time with their superiors that this wasn't what they should be doing. They were very apologetic. It was a very strange occasion."
Under California state law, the Osburns' bumper weed crop was perfectly legal. They were the state-approved growers for the Los Angeles Cannabis Resource Center (LACRC), a West Hollywood medical marijuana co-op operating legally under Prop 215, the Compassionate Use Act of 1996, which legalizes the use of pot as physician-prescribed medicine. The dope cultivated by the Osburns would relieve the symptoms of 960 registered patients in L.A., who used it to treat the wasting associated with AIDS, chemotherapy nausea, chronic pain and glaucoma, among other conditions.
But the agents who poured out of these vehicles, some dressed in camouflage and many wearing ski masks, weren't bound by state law. They were mostly L.A.-based agents of the US Drug Enforcement Administration (DEA). Under the federal Controlled Substances Act, pot is a Schedule 1 narcotic, which is defined as having "no medicinal use." Therefore, in the Twilight Zone that is the federal bureaucracy, medical marijuana doesn't exist. They had a warrant from the US Attorney's office in L.A.
Since 2001, the Bush Administration -- and U.S. Attorney General John Ashcroft, Drug Czar John Walters, and ex-DEA director Asa Hutchinson, in particular -- have openly defied the sovereignty of California voters by raiding pot co-ops and making selective arrests of 30 medical pot users and growers. They have gone after the highest-profile individuals, including many who passed the original ballot initiative. Some have been sent up on federal prison sentences as long as 10 years. The Osburns were just such a catch: They had been the key organizers of Prop 215 support in Ventura County.
"This is their strategy, and I think it's backfiring," says Hilary McQuie of Americans for Safe Access, a pro-medical marijuana group. "Every one of these cases is demoralizing to the DEA, and builds up public sentiment against them."
This new crackdown, which has isolated the DEA from local cops and splintered local drug task forces across the state, has now made pot into a conservative issue. President Bush, who campaigned on a pro-state's rights agenda concerning potentially racist matters like flying the Confederate flag over the South Carolina statehouse, or local environmental control, has reversed himself and increased federal power in order to fight voter-approved marijuana. Medical pot is legal in some form in nine states, but only California activists have been the victims of the administration's moral agenda.
The state's rights implications of this assault have now greatly overshadowed Ashcroft's crowing about the need to prosecute the Drug War or fight terrorism. An unlikely coalition of staunch conservatives and outraged liberals have backed two new bills in Congress to address this conflict.
As Ventura County Sheriffs deputies stood aside, the DEA agents marched out to the Osburns' weedpatch and pulled up every plant. They did not draw their guns. They loaded up the huge stack of weed into their trucks and left. The Osburns weren't arrested, not even handcuffed. They were left with a choice: Go without their medicine, which they both use under prescription to treat chronic pain, or become criminals by buying on the black market.
"The Bush administration would like to have patients locked away in prison until they die of whatever disease their doctor recommended the marijuana for," says Lynn, his anger mounting. "They've never attacked Prop 215 or any of the laws from the eight other states. The Supreme Court hasn't overruled it. Instead, they've gone after patients. This is his so-called 'compassionate conservatism.'"
It would be over a year before any charges would be filed against the Osburns. But in the fall of 2002, they were busted again for growing 35 plants for medical use, and this time L.A.-based U.S. Attorney Patrick Fitzgerald threw the book at them, prosecuting for both raids. Their case goes to trial this fall, where a conviction could mean 40 years in prison, and possibly the forfeiture of their 60-acre ranch.
They're scared, but they're hoping to go all the way to the U.S. Supreme Court and settle this matter once and for all: Are states truly free to make their own law and police their own population, as the constitution clearly guarantees? Or does this power rest in the hands of a few appointed federal chiefs who set the nation's moral agenda?
State's Rights Abandoned
Unlike George W. Bush, Prop 215, the Compassionate Use Act of 1996, did not squeak by at the ballot box. It was approved by a relative landslide at 55.7 percent. This creates a tremendous conflict for California Attorney General Bill Lockyer, a Democrat. He voted for 215 because he felt it was humane policy. But he does not favor the legalization of drugs in general, and under his tenure meth labs and remote marijuana fields have been snagged in record numbers. Now, as the state's top cop, his mandate under 215 puts him in a clash with the feds, who have busted 40 prescription-carrying medical pot users and growers since 9/11, and are hustling to give them lengthy sentences.
The DEA's position is clear. "The DEA does not think that marijuana is a medicine," explains Special Agent Richard Meyer, information officer for the DEA in San Francisco. "[In California], there may be some support for medical marijuana, but the U.S. population as a whole is against it. We have to uphold federal law." "Prop 215 got about 5 million votes," says Hallye Jordan, Lockyer's press secretary. "That's a huge number. The Attorney General is frustrated that today we find ourselves embroiled with these types of fights with the Bush Administration over a wide variety of issues, where the states are being blocked by federal authorities from implementing state law."
It's not just pot laws. Jordan points out that the Bush Administration has also actively blocked state laws regarding consumer protection, financial privacy, the environment, and gun control. In Oregon, John Ashcroft has worked feverishly -- and openly -- to undermine a voter-approved assisted suicide law. "What we have right now is not a nation governed by the will of the people," says Brenda Grantland, an attorney for Judy Osburn. "But one in which the few elected political leaders decide what the law is. It doesn't matter what the voters say. It's not a democracy, it's an oligarchy."
When the DEA moved in fall 2002 to bust a Santa Cruz collective known as the Wo/Men's Alliance for Medical Marijuana (WAMM), regarded as the most refined model for medical marijuana distribution in the state, the chief of police in San Jose was so upset he pulled all his officers off a DEA-led joint task force. Lockyer then fired off a terse letter to then-DEA chief Asa Hutchinson (now at the Dept. of Homeland Security). Calling the DEA raids "harassment," Lockyer said they were "wasteful, unwise, and surprisingly insensitive." Then he laid out the complaint shared by many in the state and in congress:
"While I am acutely aware that federal law conflicts with California's on this subject and needs to be reconciled, surely an Administration with a proper sense of balance, proportion, and respect for states' rights could and should reconsider the DEA's policy and redirect its resources to concentrate fully on the priorities we share: the destruction of criminal narcotics organizations, the interruption of commerce in drugs far more dangerous than marijuana, and choking the flow of drug money to terrorists."
Hutchinson, whose DEA once raided a Bay Area pot club on the same day he made a pro-Drug War speech in San Francisco, replied to Lockyer's letter. First, he toed the line of every federal Administration since Nixon, insisting that marijuana's medical merits are unproven. Then he pulled out a charge which the DEA repeats today, but for which no evidence has ever been given, writing that Prop 215 was "being abused to facilitate traditional illegal marijuana trafficking and associated crime."
Hutchinson never met with Lockyer, and the message was unmistakable: The Bush Administration didn't care what the voters wanted.
Congressman Ron Paul [R-TX], a conservative from Bush's home state, sees this as a betrayal by the president. Along with Rep. Dana Rohrabacher [R-CA] from Huntington Beach, he has backed the newly-renamed State's Rights to Medical Marijuana Act (HR2233), a version of pro-medical pot legislation that has been introduced by Rep. Barney Frank (D-MA) every year since the early 1980s. It has never even moved into committee, much less to a vote. But the state's rights conflict gives new urgency to the bill, now with 21 sponsors, which seeks to re-schedule marijuana to include medical use in the U.S. Controlled Substances Act. This is one of two bills now before Congress seeking to reconcile the conflict.
"Do states have the right to set their own policies regulating medical marijuana? For those who still believe states have rights under the Ninth and Tenth amendments, the answer is clearly yes," Paul said in a statement. "For too long the federal government has used the 'War on Drugs' as justification for pre-empting more and more state criminal and regulatory laws."
Rohrabacher press secretary Aaron Lewis says the congressman, who chooses not to speak on the issue, agrees. "He simply sees this as a state's rights issue," he says.
The DEA's Meyer says he welcomes some kind of reconciliation of the legal impasse. "We are all for that. We hope there is some type of agreement," he says. "In the meantime, we have to enforce the laws of the land."
Back to the Black Market
Three weeks after uprooting the LACRC's crop on the Osburn ranch, the DEA raided the Center itself. In the mid-morning of October 25, about 10 people were on hand to fill prescriptions at the West Hollywood storefront. Three days a week, the center distributed about six pounds of pot to its 960 patients. Just as at the Osburns, no one was arrested in the action. Agents just backed a big truck up to the rear door and cleared the place out in a matter of hours, taking the weed, the computers, the patient's medical files, and 400 plants plus lights and timers from the basement grow room.
West Hollywood City Council members, who had worked hard with the LACRC in order to work out a system of identity cards for the patients, and helped purchase the building, stood in the street in protest. At an unprecedented press conference, members of the council, the Center, and the L.A. Sheriffs Dept. condemned the DEA for their actions.
"People relied on this marijuana for relief, and that's a humanistic problem," said Lynda Castro, West Hollywood station captain for the L.A. Sheriffs Dept., in an interview after the raid. "The city of West Hollywood and the community here really took exception to the fact that the DEA came in against a club that was operating with great integrity."
LACRC President Scott Imler, 44, was present at the raid. A former school teacher from Santa Cruz, he helped campaign for legalized medical marijuana there, and helped write Prop 215 itself. Unlike many pot clubs in the Bay Area, which found new locations and re-opened under more clandestine conditions, the LACRC closed permanently. Soon, the feds began still-ongoing forfeiture proceedings against the building, which was co-owned by the Center and the city.
"We felt there wouldn't be any charges," says Imler. "They had convened grand juries in January 2002, and no indictment issued from that. Then the Osburns chose to replant, I don't know if that had anything to do with them coming down on us."
In November 2002, the U.S. Attorney offered a plea bargain to Imler, Center Vice President Jeffrey Farrington, and Treasurer Jeffrey Yablan: Accept guilt for one count of Maintaining a Drug House, the old crackhouse law, or get charged with that plus manufacturing and RICO conspiracy charges, with big mandatory sentences.
It couldn't have come at a worse time. Imler, who used pot for years to control epileptic seizures and spasticity, has now developed cancer and is undergoing chemotherapy at the time of this writing. Farrington has glaucoma, and Yablan has AIDS.
So why not go to court and argue that they were operating legally under state law? This raises the other, almost more infuriating consequence of the federal refusal to accept medical pot: No mention of Prop 215, medical use of pot, or what is called a "medical necessity" defense is allowed in these cases. This makes medical marijuana users and growers sitting ducks, as prosecutors use their openness in complying with the state law against them, producing their weed, plants, prescriptions, medical records, and distribution documents as irrefutable proof of guilt. Juries are forced to convict -- even when it goes against their conscience.
"It's pretty clear that no one's being allowed to raise Prop 215 in these cases, so basically this meant that we'd be going to jail," says Imler. "So the three of us swallowed hard, and decided that it was either go to jail for a long time or take a plea and see if we could get less time." Sentencing for Farrington and Yablan has been set for September. Imler's has been delayed due to his treatments.
The block against using Prop 215 in federal court stems from a May 2001 ruling by the U.S. Supreme Court. In a case involving the Oakland Cannabis Buyer's Cooperative (OCBC), the nation's high court ruled only that there could be no medical necessity defense in a case involving marijuana, because pot was not scheduled as having any medical use under federal law. The court did not, however, rule 215 unconstitutional. But this ruling made it clear that any documented medical user would lose in court, and lose badly.
This was Ashcroft's silver bullet. The DEA had been busting people for years in California, but the confusion over the law made it difficult to convict as Prop 215 information invariably ended up before the jurors. Lockyer's predecessor, Dan Lungren, was less enamored of Prop 215, and worked with the DEA to keep medical users in the courts, wrangling endlessly over these questions. But after May, 2001, all that changed.
Just exactly what this means for patients who smoke pot became clear in the recent trial of weed guru Ed Rosenthal, 58. The author of over a dozen books about dope, and known worldwide for his "Ask Ed" column in High Times magazine, Rosenthal was growing marijuana as an officer of the city of Oakland, Calif. His only profit from the business came from his books: He was writing about the uses of marijuana's active ingredient, THC, to alleviate the symptoms of not only cancer and AIDS, but also multiple sclerosis and depression.
According to city officials, Rosenthal enjoyed the same kind of immunity as a cop in handling the pot. In February 2002, however, the DEA seized 3,163 plants at his West Oakland warehouse grow facility. The high number of plants enabled federal prosecutors to try him under the "kingpin" law, reserved for major drug dealers. He faced a possible sentence of 5-to-85 years. His wife, publisher Jane Klein, and pre-teen daughter were horrified.
In the trial, U.S. District Court Judge Charles Breyer was among the first to apply the new Supreme Court ruling. Rosenthal's attorneys were expressly forbidden to present medical marijuana information to the jurors in any way.
Breyer later said in a statement: "That may not be what the law should say, but that's what it does say. I'm not congress. I'm not the FDA [Food and Drug Administration]." The judge then screened 80 potential jurors until he found a dozen who knew nothing about Prop 215.
Predictably, considering the mountain of evidence, they convicted Rosenthal. Minutes after the trial, however, there was a jury revolt as activists and reporters informed the jurors of the consequences of their verdict. Nine of the twelve jurors later rescinded their guilty votes and publicly denounced Breyer for withholding information.
Charles Sackett, the jury foreman in the case, convicted Rosenthal because he thought he was a drug dealer. He recalls that day, "When I went out of the jury deliberation room into a public area, a newspaper reporter asked, 'Did you realize you just overturned the state medical marijuana law?' No. 'Did your realize this man was deputized by the County of Oakland and the State of California to grow medical marijuana?' No.
"I went down 19 floors seething. I was so angry. I almost got in my car and drove away, then I thought: This is not right. I went back to the courthouse, to where all the reporters were gathered, and I said to them, 'I was the jury foreman, do you want to ask me any questions?'"
By that time, a storm had been unleashed. Sackett told one reporter at the scene, "Personally, I hope he appeals and wins." The jurors then organized amongst themselves and began a campaign to affect Rosenthal's sentencing. They wrote a letter to Judge Breyer asking him not to send Rosenthal to prison, and protesting the way they were handled. Similar letters came from Lockyer and members of Congress.
On June 4, Breyer shocked everyone involved in the case by sentencing Rosenthal to one day on all three of his charges, served concurrently, then gave him credit for time served. Prosecutors were furious, having recommended six and a half years. Rosenthal was free, but still a convicted felon, and under probation. He is appealing.
Other medical marijuana users and growers convicted in the Ninth Circuit, where Breyer sits, had not fared so well. Bryan Epis, a Northern California pot club grower, was convicted and sentenced to 10 years in prison because of the same restrictions on entering Prop 215 into evidence.
For many, the Rosenthal verdict seemed to be a sign. Keith Stroup, executive director for the National Organization for the Reform of Marijuana Laws, said in a statement: ""It should send a strong message to the Bush administration to stop wasting federal resources arresting and prosecuting medicinal marijuana patients and their care givers."
Tom Mrozek, spokesperson for the U.S. Attorney's office in L.A., said he was unable to comment on how the sentence would affect the Osburns case.
The DEA's Meyer was more forthcoming. "It doesn't make any difference to us if somebody gets a one-day sentence or a ten-year sentence," he says. "Our job is to enforce the Controlled Substances Act."
Long Hot Summer
The Rosenthal decision hasn't changed the Osburns' outlook much. Their trial comes up in October, and meanwhile they endure house arrest (Judy can travel, with restrictions, Lynn cannot) and the sobering prospect that they still might lose their ranch.
"We think the DEA will keep going after these cases as long as they are ordered to from Washington DC, and as long as they get convictions," the couple wrote via email from their home. "And it still remains to be seen whether or not the government will appeal Ed's sentence."
It seems impossible that anything could touch them up in the Ozena Valley. There's no phone service in this remote corner of Northeast Ventura county, about 45 miles north of Ojai. To make a call, you have to drive into Frasier. There's only a U.S. Forest Service ranger station and a small community of homesteads with, as Judy points out, "30 registered voters." They do have electricity, and a satellite-delivered email service, a lot of it from their lawyers.
The Osburns only keep two Tennessee Walking horses on the ranch now, for the sake of morale as much as anything else. Their two businesses, horse training and publishing -- Judy has written several books about civil forfeiture, and how to beat it -- have both pretty much ground to a halt.
As we stand by the barn, they talk about how they've placed some hope in the "Truth In Trials Act," HR1717, a new bill introduced into congress by Rohrabacher and Sam Farr (D-CA). It would allow for the inclusion of information about Prop 215 and medical marijuana into federal trials. They also hope it comes up for a vote in time to affect their case. Judge A. Howard Matz, who is presiding, has already announced that he is observing the no-215 restrictions.
"So far, every judge in the federal system in this state has toed the Breyer line," says Lynn. "As long as no one gets a defense, it gets very hard for the jury to acquit. And they continue to terrorize sick people that should be protected under state law. Because the United States Supreme Court has not declared Prop 215 unconstitutional at all."
Both Brenda Grantland and the Osburns' trial lawyer, William Panzer, feel the Osburns will lose their case. But they're leaning into the appeal. Grantland points out that there are two separate challenges to federal authority in the case, too technical to go into here, that might make it interesting to the Supreme Court. Neither lawyer thinks they're going to get a one-day sentence.
"The Osburns are being treated differently than the other medical cases," says Panzer. "They're going hard after these people. I suspect that's because they had a civil forfeiture case against the Osburns years ago that the U.S. Attorneys lost. So they want to get back at them."
"A lot of people in elective office got there by being in favor of the politics of prohibition," says Lynn, nodding, "and these people have vested interests."
Dean Kuipers is deputy editor of LA CityBeat and LA ValleyBeat.