Norman Elliott Kent, Esq., is an attorney in Fort Lauderdale, Florida, who has defended many persons involved in cases of medicinal use of marijuana.

 

In 1993 south Florida faced the wrath of a natural enemy that challenged our resources as never before. It was a hurricane called Andrew. Now, for a moment, I would like you to join me in a role-playing exercise:

 

Imagine you live in a beautiful home at the eye of the storm, and you are fortunately blessed with all the necessities and luxuries of life, including, but not necessarily limited to, a comfortable job, a paid-to-date mortgage, and dependable transportation. You are also the parent of two 6-month-old twins, a boy and a girl. You have running water, flowing electricity, food in the pantry, and money in the bank. But now, a natural disaster wreaks sudden havoc in your life.

 

In the sudden swell of a rising tide and crushing wind, everything you own and cherish, at least materially, is lost to this devastating force of nature. You and your children fortunately survive, making your way from the rubble and ruin of your neighborhood to a shopping center and the crumbling ruins of a supermarket that barely survived the storm. Your children are wet and weary, shivering from unsheltered nights and gale-force winds and rains. The market appears abandoned, and there are no neighbors or governmental agencies around to offer assistance. There is only a threatening sign on the supermarket that reads: "Warning—No Trespassing—Looters will be shot."

 

You read the sign, but you feel for your children, crying and hungry in your arms, and you see food and clothes inside the market that is within your reach, food and garments that will feed and clothe your children. You proceed to appropriate those items for your own use—not with the intent to steal, but out of the need to survive. As you leave the market, a clerk who was hiding in the warehouse stops you with a gun. The National Guardsmen are called, and the chief officer, following the storekeeper's request, takes you into custody and charges you with theft.

 

Who among us would find this person guilty under these circumstances? Who among us would not agree that he or she should not be found guilty because he or she acted out of necessity to survive, not out of an intent to deprive?

 

If you, as I, would declare this person's conduct excusable, you would in effect be saying that there is certain criminal conduct that becomes excusable and justifiable under certain limited circumstances. You would be making a declaration that the children's biological needs far outweighed some corporation's material and financial interests. Now I ask you—is that so wrong?

 

You do not need to be a lawyer to understand the nature of this defense. You just need to grasp that there may be circumstances where the value of the law and traditional public policy is superseded by the value of human life and individual liberty. In a case like this we are saying that personal survival weighs in more heavily than the laws and customs of our land.

 

The following story is not unlike the dilemma many victims of hurricane Andrew faced. It is also the point of connection that enables us to talk about the courageous cases of citizens like Robert Randall, Elvy Musikka, or Brownie Mary. In August of 1988 Elvy Musikka was living a quiet and comfortable life in her suburban home in Hollywood, Florida. One major factor, however, made her life a bit different than that of her neighbors. While most of her friends baked cookies and tended their tulips, Elvy grew cannabis.

 

A glaucoma patient for decades, Elvy had endured all the tried and traditional treatments for this disease, which would periodically and all too often, steadily, cause the intraocular pressure in her eyes to increase, leading to unbearable pain and inevitable blindness. Doctors had tried to help her. Elvy had experimented with every possible treatment, including 23 surgeries, cataract operations, and even frightening injections into the retina of her eye. But her sight continued to deteriorate, and ultimately she lost sight in one eye.

 

Elvy had heard through others that smoking marijuana had mild benefits, but a middle-aged woman does not have easy access to marijuana. So Elvy grew a few plants of her own. Harvesting them, she enjoyed the benefits of a particularly rehabilitative drug. However, an angry ex-roommate bent on revenge told the police about her venture, and one afternoon the police paid her a visit. She was asked about her marijuana and openly stated, "Yes, I have a little. I grow it for my survival; for my sight." According to the law, however, she was committing a felony, and she was taken into custody.

 

Over the next few hours, days, and weeks, Elvy's world turned upside down. She was booked, stripped, searched, and bonded. She was arrested, jailed, prosecuted, and named as a defendant in a criminal system that could have sentenced her to jail for five years. And the prosecutors gave her only one alternative: forgo the further growing of marijuana and its consumption, submit to random drug tests, and we'll give you probation. If you don't like this plea, go to trial and risk the possibility of conviction and a jail sentence.

 

Elvy stood up for her rights. She demanded a trial and rejected all prosecutorial plea bargains. She hired me as her lawyer, and we went into court together, asserting that this was a woman who grew and smoked marijuana today so that she could preserve her eyesight for tomorrow. We told a startled community that marijuana for Elvy had a medicinal value—that it relieved the pressure, alleviated the pain, and reduced the number of headaches she endured from glaucoma. Remarkably, the community of public opinion, like the court of law, acquitted Elvy Musikka. When we took the case to the public, we found enormous support, and we also discovered that Elvy was not alone.

 

We received calls from and encountered many cancer patients, one of them a police officer who used marijuana regularly to reduce the pain of chemotherapy, an agonizing hurt that racked his body and sapped his strength. We found multiple sclerosis victims using marijuana to prevent recurring instances of uticontrollable spasticity. We found individuals, lawyers, and doctors with migraines who smoked marijuana to eliminate headache pain and daily stress.

 

We also found countless AIDS patients, like my friend Jimmy Messer, who sat in a Vero Beach, Florida, hospital fighting nausea and appetite deprivation and consuming marijuana not to get high, but to restore health and retard the pain of a fatal disease. By coming out of the closet, we tore down a veil of secrecy. We found a myriad of patients across the country who shared Elvy's predicament.

 

Ultimately we unveiled a whole new world of people who smoked and used marijuana—scores and scores of good, decent, and respectable people, who, like the parent of the twins in our hurricane Andrew example, simply sought to survive. We learned that there were patients like Elvy who had a considerable history of success with marijuana as a therapy. But we also learned that the majority of America's states and municipalities had no real interest in protecting the health and welfare of the Elvy Musikkas of America. We learned that medicinal marijuana was not available by prescription. In fact, even after acquittal, Elvy had to threaten the United States with a suit before four-year-old freeze-dried marijuana from the U.S. government-run farm at the University of Mississippi was made available to her on a trial basis. Now she is still only one of a handful of Americans fortunate enough to receive this medicine. Thousands of other patients continue to suffer both the threat of criminal prosecution for seeking it and the fear of increased illness for not getting it.

 

 

There are many like Elvy who seek to acquire marijuana legally but must resort to obtaining it illegally. One young man, 29-year-old James Messer, an AIDS patient in Stuart, Florida, was arrested in November of 1993 with four grams of marijuana rolled into a couple of cigarettes. James had been taking Marinol (the synthetic THC) by prescription to act as an appetite stimulant. Marinol is the legally prescribed THC pill that stimulates appetite. However, Marinol has a slower onset of action and costs more than smoking. And amazingly, the only pharmacy in the entire county that made Marinol available to James had been out of stock for four weeks prior to his encounter with the law. So James turned to the illegal alternative—not because he wanted to break the law, but because the law gave him no choice. Marijuana was simply the best available medicinal alternative open to James Messer.

 

James would have been an excellent candidate to receive marijuana legally had our government not turned its head and heart from the Compassionate Use Protocol Program (IND)—a governmental initiative that enabled patients to seek marijuana medicinally, as Elvy did. In chapter 3, Michael Aldrich will review the Bush administration's termination of this program and the Clinton administration's refusal to review or reenact it.

 

Kenneth Jenks of Pensacola, Florida, was a hemophiliac who contracted AIDS from infected blood during a transfusion. Unknowingly he infected his wife Barbra. Utilizing marijuana to minimize the devastating effects of nausea and vomiting that reduced them to incapacitated human beings, the Jenkses also found themselves the victims of an unwelcome prosecution by district attorneys. In a moving and emotional trial, they were each convicted of felonies. The judge and the jury did not accept the defense of medical necessity. They refused to apply it.

 

Now the Jenkses not only had a disease to worry about but also the possibility of incarceration. They were saved by a compassionate judge who recognized the true nature of their deeds. His sentence for Barbra and Ken Jenks was simply that they be placed on probation, with the special conditions that "they each take care of the other for the rest of their natural lives." Barbra died in 1992, and Ken died in 1993, but he was alive to hear that the court, in citing the Musikka case, asserted that the defense of medical necessity was indeed available in the state of Florida, and that the facts in the Jenks's case were such that it should have been applied instantly. The convictions were reversed and important case law had gained a strong foothold in the sunshine state, but only because desperate people acted courageously in the face of unjust governmental prosecution.

 

Mary Rathbun ("Brownie Mary") of San Francisco did not have AIDS. She did, however, bake marijuana brownies and cookies she delivered to AIDS patients. Arrested and prosecuted, she was acquitted of the felony of distribution of marijuana by correctly using a variation of the medical necessity defense. She was able to testify that her deliveries were made to assist others in need, not to advance individual greed, that the nobility of her actions outweighed the reprehensibleness of her offense according to the law.

 

This legal defense was originated in 1976 by Robert Randall, who eventually became the founder of the Alliance for Cannabis Therapeutics (ACT). In Elvy's case we used him as an expert witness to establish marijuana's medicinal value. Elvy was victorious in 1988. In 1993 and 1994 San Diego and San Francisco jurors again acquitted persons who successfully employed a medicinal marijuana defense. But the Jenkses lost their trial and so did other worthy patients in Minnesota and Massachusetts.

 

Barbara Sweeny, an AIDS patient of Fairfax, California, was arrested twice in Mann County for growing cannabis. She suffers from a chronic infection, and the drugs she has to take have terrible side effects that marijuana helps alleviate. After her first arrest, she was instructed to try Marinol, the synthetic marijuana substitute, which costs $300 per bottle. Marinol did not work very well and cost nearly $600 per week, paid by MediCal, to replace the medicine she had been growing at home for free.

 

Valerie Corral of Santa Cruz, California, was also arrested twice for growing cannabis to control seizures due to an accident. After charges were dropped in her first arrest on grounds of medical necessity, the sheriff re-arrested her and destroyed her plants even though he had been told by the local district attorney that he could not prosecute her.

 

Samuel Skipper, another AIDS patient, was arrested in San Diego for growing his own cannabis. He started growing cannabis when his partner contracted AIDS. When he also contracted AIDS, he started using the medicine to treat himself. After his second arrest, he was acquitted of cultivation by a jury on grounds of medical necessity but was sent to prison for having violated probation from his first arrest!

 

Scott Hager, a 34-year-old para—Olympic athlete, was raided by Santa Cruz police for growing four marijuana plants. He uses marijuana rather than addictive and debilitating drugs to control violent muscle spasms caused by his quadriplegia. At the time of the raid, Scott was recovering from major surgery, and the loss of his medicine caused serious complications.

 

Bryon Stamate, a 74-year-old retiree, was arrested in El Dorado County, California, for growing cannabis to treat his girlfriend's chronic back pain. Not wanting to testify against him in court, his girlfriend committed suicide. As punishment, his home and life savings were seized by the sheriff's department, and he had to go to court to get them back. He also spent more than three months in jail.

 

Alex D., a 25-year-old hemophiliac, was arrested in Fort Lauderdale, Florida. An AIDS patient, he needed marijuana to combat the effects of chemotherapy. He sat in jail without bond while swelling in his brain nearly proved fatal. A wise judge released him and dismissed the charges for possession of marijuana. Another client of mine faced a jail term of six months in Stuart, Florida, for using marijuana when the only pharmacy in town that carried his Marinol had run out. Fortunately, the state attorney dismissed the charges based on the defense of medical necessity. While each of these last two cases ended favorably, the fear each defendant felt when initially arrested was staggering. As patients in the advanced stages of AIDS, both men had more to worry about than jail. Each was taking marijuana medicinally, but had it not been for the intervention of legal counsel on their behalf, they both would have ended up in jail. I am not trying to congratulate myself, but I am saying that neither patient, given the extent to which he was already suffering, should have been placed in that position.

 

My last admonition for anyone who may need to use this defense is to be sure to retain a competent and thoroughly professional attorney who will be able to meet the high standards outlined by Kevin Zeese in the following pages. These are not cases for amateurs. Medical necessity is a stringent, demanding defense. To preserve health in a rational, compassionate manner, the practice of medicine, however, cannot be predicated upon the legal requirements of the medical necessity defense.

 

When the Drug Enforcement Administration (DEA) and the Public Health Service joined hands and rescinded the Compassionate Use Program, Investigational New Drug program, the DEA administrator heartlessly wrote, "Beyond any doubt, the claims that marijuana is medicine are false, dangerous and cruel.... It is a cruel hoax to offer false hope to desperately ill people. It is not a safe or effective drug for any illness." I wish he had met some of these patients, endured some of their pain, or imagined some of their dreams. They aren't criminals. Only the unjust laws have made them so.

 

As Judge Mark Polen wrote in his legal decision acquitting Elvy Musikka:

 

We cannot become blind to the legitimate medical needs of those who are afflicted by incurable diseases and require appropriate medical care. To ignore the plight of such people renders the law callous to the most basic of all human rights: the right of self-preservation.