Pubdate: Sun, 08 Apr 2001
Source: Marin Independent Journal (CA)
Copyright: 2001 Marin Independent Journal
Contact:  http://www.marinij.com/
Details: http://www.mapinc.org/media/673
Author: Gary Klien

MARIJUANA RECORD CONTRADICTS CLAIMS OF KAMENA CRITICS

Critics of Marin County District Attorney Paula Kamena say she has been too 
tough on medical marijuana users, but a review of her prosecutions from 
1998 to 2000 indicates otherwise.

About two thirds of the marijuana suspects who claimed a medical need 
eventually had possession charges dismissed, one way or another. And those 
who did not often faced complicating allegations such as drug sales or 
weapons possession.

Kamena faces a May 22 recall election engineered by opponents of her 
medical marijuana policies, but her approach has some legal authorities 
wondering what the critics are complaining about.

"I think Paula's getting a bad rap," said Mendocino County District 
Attorney Norm Vroman, whose marijuana policies influenced Kamena's. "There 
must be something else going here, because I don't see what they're so 
upset about."

After passage of Proposition 215, the California initiative that legalized 
medical marijuana in 1996, Kamena issued guidelines to help Marin police 
officers decide whether to make an arrest. The guidelines say prosecution 
is unlikely if the marijuana user has a medical need documented by a 
physician, and is found with fewer than seven mature marijuana plants, 
fewer than 13 immature plants or less than a half pound of dried marijuana.

Of approximately 30,000 criminal referrals for prosecution in Marin during 
1998, 1999 and 2000, records in the District Attorney's Office indicate 804 
cases were marijuana-related. Of those cases, only 73 defendants raised the 
medical-marijuana defense.

The district attorney's office declined to charge 13 of the 73 medical 
marijuana suspects outright because medical documentation was immediately 
available or because of concerns about police searches, said Assistant 
District Attorney Ed Berberian.

Of the remaining 60 cases, the district attorney dismissed 18 under 
Proposition 215, the records revealed. Two other cases were dismissed by 
the district attorney for other reasons and one case was dismissed by a judge.

In addition, 12 cases were dismissed by the courts after the defendants 
made a "post and forfeiture" payment of $50 to $250, similar to paying a 
traffic ticket. Prosecutors said these 12 defendants did not produce valid 
documentation from a physician, although some provided cards indicating 
they belonged to a cannabis club.

Most of the remaining cases were resolved with plea bargains, diversion or 
deals with a judge for no prison time. Six cases are pending.

The 60 cases involve a wide range of amounts, from less than an ounce to 
nearly 4 pounds, but prosecutors are quick to emphasize that Kamena's 
guidelines are just that - guidelines.

"It is not an absolute, but it is the most likely outcome," Berberian said. 
Police "can still make an arrest - it doesn't mean they don't have probable 
cause - but it doesn't mean it will result in a filing."

Kamena contends her policies are a simple and fair guideline to a 
complicated issue.

"If you're ill, if your doctor says you need marijuana, if it's an amount 
consistent with our policy and there are no sales, you won't be 
prosecuted," she said. "That's it in a nutshell."

Walking a tightrope

Fairfax Police Chief Ken Hughes said Kamena's policy, if anything, is 
slightly favorable to the defendant.

"Her guidelines on what she'll consider for prosecution probably fall on 
the liberal side of the norm," Hughes said. "I haven't seen any evidence of 
her taking a case that by reasonable standards falls under Proposition 215. 
If she sees a Proposition 215 issue come along, and it appears to be valid, 
I fully believe that she backs away from it."

"She has a very difficult tightrope to walk," Hughes added. "She's 
presented with facts from the police department and she has to make a 
decision. I think she's done her job correctly."

But even if the policy is relatively liberal, its results are sometimes 
inconsistent. In one case, a patient with 500 grams of marijuana - more 
than a pound - had a case dismissed by the district attorney under Prop. 
215. In another case, a medical marijuana patient found with 6 to 8 ounces, 
half a pound or less, was charged with possession for sale. He took it to 
trial, got a hung jury, then agreed to plead guilty to possession of less 
than an ounce.

Berberian said the district attorney's office has tried to smooth the 
wrinkles by funneling all marijuana cases, medical or not, through one 
prosecutor. Yet some Marin police officials have lost faith in the policy.

Twin Cities Police Chief Phil Green said the policy's flaws are best 
illustrated by the case of Robert Voelker, who was arrested twice for 
growing marijuana plants at his trailer in Larkspur and keeping about 3 
pounds of dried marijuana there. Voelker did not show valid documentation 
to police but later provided it to prosecutors, who then dismissed the 
charges. Then, Judge Verna Adams ordered Twin Cities police to return the 
pot they had seized.

"Mr. Robert Voelker should have been prosecuted for possession and 
cultivation," Green said. "It was a clear case of abuse. A prescription's 
not retroactive and it was our second contact with him."

'One cent is too much'

Critics on the other side say that even if cases are eventually dismissed, 
suspects still have to endure the expense and inconvenience of defending 
themselves.

Clayton Shinn was among the 60 medical-marijuana cases that Kamena charged 
during the three-year period. Shinn, a retired painter, was arrested on 
Dec. 19, 1999 - "a date that will live in infamy," he said - after smoking 
marijuana in a parking lot in downtown Fairfax. Police told Shinn the 
neighbors were complaining, but Shinn doesn't buy it.

"In Fairfax, California? I don't think there was a complaint," said Shinn, 
46, of San Rafael. "I've been getting high right in front of their cop shop."

Hughes, the Fairfax police chief, said Proposition 215 is not a license to 
smoke marijuana anywhere.

"I don't care if they have a cannabis club card or a county card, I won't 
tolerate them smoking in public," he said. "We have complaints about people 
using drugs in the Parkade and we're sensitive to that. (Proposition) 215 
doesn't say anything about smoking the substance in public. That won't be 
tolerated."

Shinn was able to make the charge disappear with a $100 post-and-forfeiture 
payment. But in his view, even "one cent is too much." With the recall 
looming, Shinn does not count himself among Paula Kamena's supporters.

"She is affecting me pretty personally," he said. "I say she should be gone."

'Childish slander'

Lynnette Shaw, founding director of the Marin Alliance for Medical 
Marijuana in Fairfax - and a driving force behind the recall initiative - 
said Kamena's prosecution numbers are too high for a small county like 
Marin - and are beside the point.

The real issue stoking the campaign, she said, is that patients are having 
their marijuana confiscated by the authorities, whether or not they have 
valid documentation.

"The problem is not just dismissing them, it's leaving them alone and 
letting sick people have their pot," she said. "The patients lose their 
medicine, and they lose their health and they lose their time. ... They can 
pull out a doctor's note and call the doctor on the phone, and they still 
lose their marijuana."

Kamena replies: "It's good to know that the Marin Alliance agrees that our 
record is not at issue. Our guidelines, which are accepted and followed by 
the police, were promulgated to avoid the very issue of their concern."

Shaw also says another Kamena guideline, that a patient should not be on 
parole or probation, allows local police to harass probationers for 
marijuana use. The result, she said, are probation violations in which 
people who tested positive for marijuana are threatened with jail for 
failing to meet probation orders to stay away from drugs.

"It's been a travesty," Shaw said. "Because of the new guidelines they 
started testing everybody who was on probation for pot."

But Ron Baylo, who just retired as Marin's chief probation officer, said 
his office administered drug tests only to those probationers who were 
ordered by the court to undergo testing - and the district attorney's 
guidelines had nothing to do with those orders, or the procedures in his 
office.

Furthermore, he said, the probation office's drug screening procedures were 
in place before Kamena's policies went into effect.

Kamena wonders whether Shaw's campaign is about altruism or mere commerce.

"I think that what's happening is Lynnette Shaw wants to be the dispensary 
and the agency that determines whether people qualify for medical 
marijuana," Kamena said. "That's a great marketing plan."

Shaw, however, maintains that Kamena is driving up pot sales by seizing her 
customers' marijuana.

"She is so far gone," Shaw said. "Her policies are the best thing possible 
for a dispensary because her policies have caused everyone to lose their 
plants and go buy it at a dispensary. This is typical of the childish 
slander that's been coming out of Paula Kamena's mouth."

Wrestling with the law

Even as the debate continues in Marin, the U.S. Supreme Court is 
considering a case that could provide local authorities some guidance on 
the medical-marijuana issue. The case, while technically involving only a 
cannabis club in Oakland, has implications for Shaw's pot club in Fairfax, 
as well as for law enforcement in numerous states.

The question before the justices is not whether Prop. 215 is 
constitutional, but whether "medical necessity" can override the federal 
ban on marijuana.

Meanwhile, a California Senate bill currently in committee would establish 
a central registry for medical-marijuana users and require the state health 
department to hold hearings on appropriate possession amounts. The bill, 
SB187, is set for hearings on April 18.

Both matters are being followed closely by law enforcement officials 
seeking legal clarity and political relief.

"All of us, frankly, are struggling with that because the law provides a 
lot of discretion," said Humboldt County District Attorney Terry Farmer. 
"You have to read the law and understand a little about your constituency 
and understand their needs and desires. Kern County is going to take a 
different approach than San Francisco is."

Farmer's medical marijuana guidelines, although more generous than 
Kamena's, are similar. Farmer, who has been in office since 1983, has set 
the possession limit at 10 plants or 2 pounds for patients with legitimate 
documentation.

But Farmer said that no matter where a district attorney draws the line, 
people on both sides are going to be dissatisfied.

"Some are going to think I'm too strict and others too lenient," he said. 
"Bottom line: I, frankly, spent a whole lot more time on this issue than 
the problem merits. Because of a dearth of medical information, because of 
the lack of standards as to dosages, because of varying degrees of quality 
of marijuana ... there's just a lack of consensus among the medical 
community about all those variables."

In one Marin case, the lack of consensus led to the dismissal of charges 
against a patient found with 280 grams of pot. Kamena's expert witnesses 
couldn't agree on whether 280 grams was an appropriate amount for medical 
need under Prop. 215.

"The law was poorly drafted," Farmer said. "It's a bad political document, 
it's a bad medical document. We're wandering around in the woods, trying to 
establish who the good guys are and the bad guys are."

Vroman, the Mendocino district attorney who beat a 12-year incumbent in 
1998 by pledging to implement Prop. 215, called medical-marijuana 
enforcement "a quagmire." His guidelines call for 18 plants and 2 pounds of 
dried pot.

"Part of the problem, and everyone will tell you, is the law is drafted 
poorly," he said. "Most of the laws we deal with are poorly written. It's 
up to the district attorney's office to figure out what the hell's going on.

"I've taken the position up here that if they show a medical need for it, 
who am I to say how much they need or how little they need?"

Even Sonoma County District Attorney Michael Mullins, who doesn't think 
cannabis clubs are sanctioned under Prop. 215, said the anti-Kamena faction 
is "barking up the wrong tree."

"But the politics are different down there," said Mullins, whose office has 
set no possession standards and charges on a case-by-case basis. "It's a 
difficult problem, you're trying to get somebody to possess something that 
the federal government says is illegal."

The opposition

It would be surprisingly easy for Thomas Van Zandt, the only candidate 
opposing Kamena, to become the next district attorney of Marin County.

If a simple majority approves the recall, Van Zandt, a Sunnyvale patent 
attorney backed by the marijuana faction, would need only one vote to win. 
No one else filed to appear on the ballot in the event Kamena is recalled.

In essence, Kamena's $143,591-a-year job is riding on how many people 
bother to vote in an election with no national races, no statewide races 
and no other local issues - except in Novato, where development plans for 
the Bahia subdivision are at issue.

Hank Fearnley, a political science professor at College of Marin, said he 
would be shocked if more than 25 percent of registered voters show up at 
the polls.

"Turnout is notoriously low in these elections, unless the issue is so 
overwhelming," he said. "But generally, turnout is very, very low in these 
special elections. It's hard to get people out unless they're directly 
involved in the election."

Van Zandt has not replied to repeated Independent Journal requests over the 
past month for a statement on his medical marijuana policy. His campaign 
Web site, www.tomvanzandt.com, carries a pledge to implement a "fair and 
lawful policy on the use of medical marijuana," but offers no specifics on 
grams and ounces, plants and pounds.

"Tom is dedicated to making sure this county is free from crime, including 
the criminal acts of abuse of authority," the site says. "One of his main 
concerns is that Marin citizens not be subjected to the type of capricious 
and politically motivated prosecutions that have been common over the past 
two years."

Van Zandt is also pledging to launch a probe of the family-law system. He 
is the brother of Carol Mardeusz, whose child-custody dispute triggered an 
initial recall movement against several family-law judges. Kamena was added 
to the recall list after Mardeusz was indicted for allegedly abducting her 
child from the father.

The recall campaign against the judges fizzled out, but the 
medical-marijuana lobby - led by Shaw - took up the cause and got enough 
petitioners to put the Kamena recall on the ballot. The actual ballot does 
not mention the medical marijuana issue, only the Mardeusz case.

Kamena is mounting a vigorous campaign to rebuff the recall, but notes that 
it all comes down to getting people to go to the polls.

"People need to come out and vote," she said.
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MAP posted-by: Jo-D