Pubdate: Mon, 2 Mar 2009
Source: CounterPunch (US Web)
Column: Pot Shots
Copyright: 2009 CounterPunch
Contact: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Website: http://www.counterpunch.org/
Author: Fred Gardner
Note: Fred Gardner edits O'Shaughnessy's, the journal of cannabis in
clinical practice.

THE JUDGE WHO RULED MARIJUANA IS MEDICINE

Most drug-policy-reform advocates know the name of Judge Francis
Young and many can quote a line from his 1988 recommendation that the
DEA remove marijuana from Schedule One: "Marijuana is one of the
safest therapeutically active substances known to man."

Few if any activists know the name of Judge James A. Washington. And
whereas Judge Young's recommendation was rejected by the DEA, Judge
Washington's decision in United States v. Robert Randall had an
actual and significant impact.

Randall, who faced blindness from glaucoma in his late 20s, would be
the first patient to get marijuana from the federal government under
an "investigational new drug" protocol. Some 30 other people with
serious illnesses followed Randall into the IND program, which was
closed to new patients in 1991. Four surviving patients receive
federal cannabis to this day.

US v Randall was tried by Judge Washington in Washington, DC,
Superior Court, over the course of two days in July, 1976. The
prosecutor was Assistant US Attorney Richard Stolker. Randall's
attorney John Karr recalled in a recent interview, "Judge Washington
had been dean of the Howard University Law School before his
appointment to the bench and I knew him to be extremely intelligent
and compassionate. A non-jury trial was fine with me."

Randall relied on a "medical necessity" argument, which Karr
summarized as: "faced with a choice of certain blindness or using
marijuana to save your sight, a reasonable person would use marijuana."

The key witness was Robert Hepler, MD, a UCLA opthalmologist who had
monitored Randall's use of all the pharmaceutical drugs then used to
treat glaucoma, and confirmed that only marijuana could stop the
progression to blindness.

Here are the facts as recounted by Judge Washington in his decision:

"The government has established, and the defendant has not attempted
to refute, that on or about August 21, 1975, police officers in the
course of their normal duties noticed what they believed to be
cannabis plants on the rear porch and in the front windows of
defendant's residence... A warrant was issued and a search of the
premises conducted on August 23, 1975. Several plants and a dried
substance later identified as marijuana were seized and defendant's
arrest followed.

"At trial, the government's evidence demonstrated that the substance
seized at defendant's residence was marijuana, possession of which is
prohibited by D.C. Code Section 33-402, thus establishing all the
elements of the crime charged. Moreover, defendant admitted that he
had grown the marijuana in question and that it was intended for his
personal consumption. He further testified that he knew that
possession and use of this narcotic are restricted by law.

"Defendant nonetheless sought to exonerate himself through the
presentation of evidence tending to show that his possession of the
marijuana was the result of medical necessity. Over government
objection of irrelevancy, defendant testified that he had begun
experiencing visual difficulties as an undergraduate in the late
1960s. In 1972 a local opthalmologist, Dr. Benjamin Fine, diagnosed
defendant's condition as glaucoma, a disease of the eye characterized
by the excessive accumulation of fluid causing increased intraocular
pressure (IOP), distorted vision and, ultimately, blindness.

"Dr. Fine treated defendant with an array of conventional drugs,
which stabilized the intraocular pressure when first introduced but
became increasingly ineffective as defendant's tolerance increased.
By 1974, defendant's IOP could no longer be controlled by these
medicines, and the disease had progressed to the point where
defendant had suffered the complete loss of sight in his right eye
and considerable impairment of vision in the left.

"Despite the ineffectiveness of traditional treatments, defendant
during this period nonetheless achieved some relief through the
inhalation of marijuana smoke. Fearing the legal consequences,
defendant did not inform Dr. Fine of his discovery, but after his
arrest defendant participated in an experimental program being
conducted by opthalmologist Dr. Robert Hepler under the auspices of
the United States Government.

"Dr. Hepler testified that his examination of the defendant revealed
that treatment with conventional medications was ineffective, and
also that surgery, while offering some hope of preserving the vision
which remained to defendant, also carried significant risks of
immediate blindness. The results of the experimental program
indicated that the ingestion of marijuana smoke had a beneficial
effect on defendant's condition, normalizing intraocular pressure and
lessening visual distortions."

John Karr recalls: "Judge Washington was very careful. After the
prosecutor had conducted his examination and I had conducted the
cross-examination, he would conduct his own inquiries. It was
apparent that he had read all the material we had put together on the
history of marijuana as medicine. In his decision he referred to the
1937 Congressional hearings that led to the Prohibition, and a number
of recent studies and reports."

A Case of First Impression

"This is a case of first impression in this jurisdiction," wrote
Judge Washington in his decision, "one which raises significant
issues. Consequently, the Court recognizes its responsibility to set
forth clearly and in some depth its understanding of the applicable law."

Citing case law, Washington concluded that "the common law recognizes
the defense of necessity in criminal cases... where the actor is
compelled by external circumstances to perform the illegal act." He
listed three exceptions. The necessity defense cannot be used when
"1) The duress or circumstance has been brought about by the actor
himself; 2) The same objective could have been accomplished by a less
offensive alternative which was available to the actor; or 3) The
evil sought to be averted was less heinous than that performed to avoid it."

The first two exceptions clearly don't apply in US v. Randall, wrote
Washington:

"While the exact cause of defendant's glaucoma is unknown, neither
the government nor any of the expert witnesses has suggested that the
defendant is in any way responsible for his condition. Similarly, no
alternative course of action would have secured the desired result
through a less illegal channel. Because of defendant's tolerance,
treatment with other drugs has become ineffective, and surgery offers
only a slim possibility of favorable results coupled with a
significant risk of immediate blindness. Neither the origin of the
compelling circumstances nor the existence of a more acceptable
alternative prevents the successful assertion of the necessity defense.

"The question of whether the evil avoided by defendant's action is
less than the evil inherent in his act is more difficult. It requires
a balancing of the interests of this defendant against those of the
government. While defendant's wish to preserve his sight is too
obvious to necessitate further comment, the government interests
require a more detailed examination.

"One of the oldest recognized drugs, marijuana was not regulated in
the United States until the Pure Food and Drug Act of 1906, which
required that the presence of marijuana be indicated on the labels of
products of which it was a component. The modern prohibition began in
1937, in response to primarily economic pressures -- 21 -- without
significant inquiry into its effects on users.  [Washington's
footnote 21: "Liquor manufacturers and distributors, still recovering
from the effects of Prohibition, were interested in eradicating the
potential competition from a drug often used for recreational
purposes. In addition, criminalizing marijuana simplified the task of
eliminating the competition for jobs during the Depression posed by
the principal users of the drug, Mexican migrant laborers."]

"The 1970 Controlled Substances Act continued the prohibition of the
use of marijuana, but a Presidential Commission was appointed to
study its effects. Pending receipt of this report, marijuana was
classified as a non-narcotic and although its use was still
prohibited, the penalties were considerable reduced, with first
offenders being discharged conditionally. The District of Columbia
law, however, was not changed, and retains the narcotic
classification based on the 1937 Uniform Narcotics Act.

"Medical evidence suggests that the prohibition is not well founded...."

How's that for a soundbite? Washington's decision continued:

"Reports from the President's Commission and the Department of
Health, Education and Welfare have concluded that there is no
conclusive scientific evidence of any harm attendant upon the use of
marijuana. According to the most recent HEW study, research has
failed to establish any substantial physical or mental impairment
caused by marijuana. Reports of chromosome damage, reduced immunity
to disease, and psychosis are unconfirmed; actual evidence is to the contrary.

"Furthermore, unlike the so-called hard drugs, marijuana does not
appear to be physically addictive or to cause the user to develop a
tolerance requiring more and more of the drug for the same effects.
The current HEW report also notes the possibility of valid medical
uses for this drug...

"The Court finds that this defendant does not fall within the third
limitation to the necessity defense. The evil he sought to avert,
blindness, is greater than that he performed to accomplish it,
growing marijuana in his residence in violation of the District of
Columbia Code. While blindness was shown by competent medical
testimony to be the otherwise inevitable result of defendant's
disease, no adverse effects from the smoking of marijuana have been
demonstrated...

Judge Washington could have ended his decision at this point, but he
went on to assert its applicability to other necessity-defense cases.
He projected and refuted an argument that would deny the necessity
defense based on the literal wording of the DC Code section, which
makes no reference to extenuating circumstances.  He also discussed
whether a defendant should have to prove necessity "beyond a
reasonable doubt" and concluded that "by a preponderance of the
evidence" was sufficient.

As John Karr put it, "Judge Washington made an effort to find for
Randall in every important way."

Recollections from Karr

"Randall came to me through Alice O'Leary, who was an employee of a
client of mine at the time, a company called The American Theater.
Her story was very touching: 'My boyfriend has this problem. He's
been busted for growing marijuana on our back porch on Capitol Hill
and he's going blind from glaucoma.' So I said 'Okay, bring him in...'

"He told me his very interesting story. So I called a Dr. Brown
either at NIH or NIMH and said, 'What's current on the use of
marijuana as a medicine?' And he said there were three programs
ongoing that NIH knew about. One, I think, in Alabama; one in North
Carolina; and one out at the Jules Stein Institute [UCLA].  He said
one involved a THC solution delivered intramuscularly; one program
reduced it to a pill taken orally; and the one in California was
doing it by smoking marijuana.

"So I called the people in North Carolina and I think it was Alabama
and they said that their results were very mixed. But Dr. Hepler at
UCLA said 'I got this program going and it looks like a real winner.'
So we sent Randall out to UCLA and Hepler tested him-

"He had no money for the defense. In fact, we never got paid for
this. It may have been Alice who put together enough money for the
trip. She was the real driver in this thing because she was very
concerned about him. Anyway, he went out there for about 10 days and
Hepler said 'It's a winner.' I asked Hepler if he would come and
testify. We advanced the money for that, I think it was 13 hundred
bucks but it didn't matter because at this point we were all excited
about the case...Sure enough, he came and he was a terrific witness.

"There were some amusing moments in the trial. I remember the
delivery of one of the plants from the FBI storeroom to the
courtroom, wrapped as if it was a gift from a florist. It reminded me
of a revue by the old comedy team, Olsen and Johnson, which began
with a hotel bellhop crossing the stage and calling out 'Plant for
Mrs. Jones. Plant for Mrs. Jones.' At the end of each act he would
reappear and the plant would have gotten larger and larger and
larger...The FBI agent carefully unwrapped the plant, which was
mature and now withered, and the prosecutor asked him to roll a joint
from it, which he did. This was to prove that it was a usable amount
of marijuana...

"At one point I asked my contact at NIMH, Dr. Brown, whether there
was a program to get him marijuana legally. And he said you've got to
get an 'Investigational New Drug' approval from the FDA. We called
FDA and they sent us the forms and we helped Randall fill them out
and send them back and eventually an Investigational New Drug license
was issued.  And for I don't remember how long, Randall would show up
at Morton's Drug Store in the 300 block of Pennsylvania Avenue
Southeast, three blocks from the Capitol of the United States, and
pick up his weekly supply of marijuana. Which looked like an
olive-drab pack of cigarettes with a band around it saying 'Property
of the United States of America.' I remember it vividly because it
was just so perfect.

"I called FDA and was told that it was grown in Mississippi and
processed and packaged in North Carolina, where all the cigarettes
are processed and packaged..."

P.S.

Attorney Paul Smollar, who worked with Karr on U.S. v. Randall,
recalls: "As a memento, Bob took two cigarettes out of the first pack
he received from the government, removed the marijuana, and framed
the papers -one for each of us to commemorate our victory in
court...'Medical necessity' was then a new argument. It had been
argued before in criminal cases, but never in connection with
marijuana. John is a very creative thinker and an excellent trial
lawyer.  And he had a good working relationship with Judge
Washington. They respected one another. Judge Washington was not only
very bright, but he was willing to make a decision that might be
unpopular or might be on the leading edge of the law. His decision
for Randall was far ahead of its time."

Some 35 years after Judge Washington found for Randall, attorney
Robert Raich framed a "medical necessity" argument on behalf of the
Oakland Cannabis Buyers Club in a case that went to the U.S. Supreme
Court. Raich was unaware of Judge Washington's decision in support of
Randall. "I wish I had known about it," he told us. "It was
scholarly, well-reasoned and well written. I would have incorporated
it... I wish we had more such judges these days."

Judge James A. Washington died in 1998 at the age of 83. His
obituaries made reference to his five-year stint in the War Division
of the Justice Department, joining the Howard faculty in 1946, his
work as a lawyer in connection with Brown v. Board of Education and
other cases leading to the end of public-school segregation in 1954,
and a terrible fall that confined him to a wheelchair for the last 20
years of his life. His decision in U.S. v. Randall exonerating a
marijuana user on grounds of medical necessity was too far ahead of
its time to be recognized as a signal achievement.



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