Pubdate: Wed, 25 Apr 2001
Source: Tempest Magazine
Copyright: 2001 Tempest Magazine, Inc.
Contact:  401 E. 8th St., Sioux Falls, SD 57103
Fax: 605-338-5355
Author: Bob Newland
Note: Newland has a bi-weekly column titled The Emperor's Tailor
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

Politics: The Ceaseless Argument Over Who Gets To Do What To Whom, For How 
Long, And Against What Degree Of Dissent

JUDGE ALLOWS MEDICAL NECESSITY DEFENSE

Six weeks ago, I wrote in this column about Matthew Ducheneaux's attempts 
to convince Sioux Falls Magistrate Patricia Riepel to allow him to present 
a "medical necessity" defense in his trial over his possession and use of 
cannabis. Matthew, a quadriplegic, was arrested last summer. He had a note 
from his doctor acknowledging that he used cannabis to quell spastic muscle 
contractions, a common affliction of paralytics.

Judge Riepel published her decision April 11. It was well-reasoned and 
well-documented, and it was the first time in history that a judge has 
decided to allow a defendant in a South Dakota trial to present facts and 
expert testimony as to the medicinal properties of cannabis.

Defense attorney Chris Moran, of the Minnehaha County Public Defender's 
office, had submitted a brief which maintained that Ducheneaux had a right 
to use cannabis based on the statute law governing acts committed to 
prevent a greater harm. The text of the law is:

SDCL 22-5-1.   Conduct forced or under threat of force. A person may not be 
convicted of a crime based upon conduct in which he engaged because of the 
use or threatened use of unlawful force upon him or upon another person, 
which force or threatened use thereof a reasonable person in his situation 
would have been lawfully unable to resist.

I don't style myself a legal scholar, but I am fascinated by the system 
which attempts to micromanage our lives even to the point of telling us 
what we can and cannot put into ourselves. I'm intrigued by the use of this 
statute, particularly by Moran's assertion that the force preventing 
Ducheneaux's legally acceptable medical application of cannabis is 
"unlawful" force.

Compounding my interest is the fact that Prosecutor Matthew Theophilus 
(under direction from Minnehaha County States Attorney Dave Nelson) 
stipulated to the following facts: that Ducheneaux is paralyzed, that he 
suffers from "spastic paralysis syndrome", that smoking cannabis quells the 
spastic tremors, and that while prescription drugs like Valium and Marinol 
also quell the tremors, they produce undesirable and toxic side effects.

Theophilus' contention is simply that, since South Dakota law doesn't 
recognize a medicinal value in cannabis, then there is no such value, 
despite his own stipulation that there is. Therefore, Ducheneaux should not 
be allowed to present expert testimony, or even to testify himself, that 
cannabis alleviates his spasms.

But, as is usually the case, what interests me is irrelevant. Judge Riepel 
recognized the facts and agreed with them. She then proceeded to explain, 
for the benefit of the upcoming prosecutorial appeal (first to circuit 
court, then to the SD Supreme Court), why she will not only allow testimony 
from an expert in medical uses for cannabis, but authorized expenditure of 
public money to defray the expert's appearance expenses.

She first dismissed the prosecutor's assertion that Ducheneaux had 
alternate (albeit inferior) remedies available, citing the SD Supreme 
Court's repeated finding that, under the justification/necessity defense, 
the jury is the finder of fact on such arguments. As for the state's 
contention that the legislature doesn't recognize cannabis' medical value, 
Riepel said that the pertinent fact is that the legislature does not 
currently hold officially that there is no medical application. "As such, 
we are left with the defense of necessity unconstrained by any legislative 
determination on whether or not it is applicable to marijuana use for 
medical reasons."

Judge Riepel cited the two medical cannabis bills for which I advocated in 
the just-ended legislative session, noting that "the bills were not acted 
on as they were set for the 41st day." I can imagine plates being shattered 
in the kitchens of the committee members who decided to "41st day" the 
bills rather than take them to the full Senate and House, respectively, for 
evisceration and execution. "Goddam judges. Give 'em a little rope and they 
hang us."

I'll lay a few bucks on the bet that they'll try to close that loophole 
next January. After all, we don't want an epidemic of folks breaking their 
necks just so they can smoke dope without being arrested and jailed.

Judge Riepel quotes the South Dakota Supreme Court on its standards for 
reviewing lower court trial prodedure:

"The defense of necessity is properly raised when the evidence, if believed 
by the jury, would support a finding by them that the offense was justified 
by a reasonable fear of death or bodily harm so imminent or emergent that 
-- according to ordinary standards of intelligence and morality -- the 
desirability of avoiding the injury outwieghs the desirability of avoiding 
the public injury arising from the offense commmitted. The essential 
element permitting the submission of the defense to the jury is a 
reasonable fear of bodily harm." State v Boettcher: 443N.W.2d 771 (SD 1978)

Riepel wraps up her decision: "This court concludes that the medical 
defense is the extension of the necessity/justification defense recognized 
by our state Supreme Court. Further, the court concludes there is no 
legislative intent precluding the necessity defense. This court finds the 
South Dakota Supreme Court's opinions relating to this issue are applicable 
to the facts of this case. If the facts as stipulated to by the parties are 
presented at trial, this court holds that the issue of 
justification/neccesity would be presented to and decided by the jury.

"Thus, because we are not limited in the ways described above, the 
necessity defense is available as a defense for the possession of 
marijuana. Further, in light of this court's ruling, the court authorizes 
the Public Defender's office to expend money for an expert witness."

Prosecutor Theophilus said he wants the circuit court to overrule Judge 
Riepel's decision to allow the necessity defense. This question could even 
be heard by the South Dakota Supreme Court before Ducheneaux's trial. My 
inclination is that, given the excellent legal precedent documentation 
provided by Judge Riepel, such appeals will have little chance of success. 
In fact, given the Boettcher citation above, it would appear to be a 
slam-dunk reversal for Moran had she ruled the other way.

Defense attorney Moran deserves our gratitude for, first, giving a damn, 
and second, for doing the work necessary to provide Judge Riepel with the 
tools with which to form her opinion. Judge Riepel deserves credit for 
taking the first strokes against the tide of political pressure which has 
stifled common sense in South Dakota courts on this issue for better than 
thirty years.

All of which leads us again to wonder what kind of man resides inside the 
skin of State's Attorney (Inquisitor) Dave Nelson. Does he really think 
it's his job to prosecute a disabled man for attempting to prolong his own 
life, simply because the legislature, unaware at the time of many facts 
about cannabis, did not make specific provision for such an instance? Or is 
he really on our side, forcing the courts (since the legislature 
continually takes a pass on it) to begin to resolve this absurd issue?

Somehow, I don't believe it's the latter.