Pubdate: Thu, 23 Aug 2007
Source: Sacramento News & Review (CA)
Copyright: 2007 Chico Community Publishing, Inc.
Contact:  http://newsreview.com/sacto/
Details: http://www.mapinc.org/media/540
Author: Cosmo Garvin
Referenced: Reefer Madness http://www.mapinc.org/drugnews/v01/n2003/a03.html
Bookmark: http://www.mapinc.org/people/Mollie+Fry
Bookmark: http://www.mapinc.org/topics/Proposition+215
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

CALI-NULLIFICATION

Mollie Fry and Dale Schafer Had California's Pot Laws on Their Side. 
No One Told the Jury That.

There's an inscription carved into the plaza at the entrance of the 
Federal Courthouse downtown. Maybe you've seen it: "There are not 
enough jails, not enough policemen, not enough courts to enforce a 
law not supported by the people."

Last week in federal court, defense attorney Laurence Lichter tried 
to read that phrase, originally uttered by Vice President Hubert 
Humphrey, to a jury last week, explaining why his client didn't 
deserve five years in federal prison.

Judge Frank Damrell wasn't having it, and cut Lichter off during his 
closing statement.

So goes the trial of Dr. Mollie Fry and her husband, Dale Schafer, 
medical-marijuana activists convicted last week of "conspiracy to 
manufacture" pot and distribute it to sick people.

All along, the couple tried to argue that they were following state 
law, created by Proposition 215, the medical-marijuana initiative 
passed by voters in 1996.

But this is federal court, and here California's medical-marijuana 
laws are not welcome.

Fry, now 51, is a physician married to Schafer, a 53-year-old 
attorney. Back in the mid-1990s, Schafer was making anywhere from 
$60,000 to $100,000, enough to support them and their kids, working 
for insurance companies on workers' comp cases. They lived 
comfortably enough that Fry had stopped working, fed up with the 
state of health care in California.

But in 1997, Fry was diagnosed with breast cancer and eventually lost 
both of her breasts to the disease. The effects of chemotherapy were 
so severe that her doctor prescribed her Marinol, a synthetic form of 
one of the chemicals in marijuana to help alleviate her nausea and 
pain. She found that regular old pot worked faster and made her feel 
better. The couple started to grow pot at their house, in the 
foothills near Cool.

But she and Schafer became convinced that marijuana was good 
medicine. A few years earlier, California voters passed Proposition 
215, which opened the door to patients who wanted to use marijuana as 
medicine. And it promised protection for doctors and caregivers who 
recommend pot and provide pot to sick people.

So Fry and Schafer created the California Medical Research Center. 
Patients would bring their medical records, and Fry or a physician's 
assistant would evaluate them and determine whether to issue a 
recommendation for marijuana. The checks were made out to Schafer. 
The fee was on a sliding scale, but $200 was the typical charge. Fry 
told SN&R that the fee was charged even if no recommendation was issued.

They also grew pot, for their own use (Schafer suffers from 
hemophilia and chronic back pain) and some more for patients. They 
are careful to say that that pot was free, but they did charge a 
delivery fee. The small bags were dropped off by a clinic employee. 
Usually the fee was about $10 for an eighth of an ounce-far below its 
street value. And unlike your pot connection, Doc Fry took $30, $40 
and $50 checks from clients, gave receipts and kept records of each baggie.

According to Fry and Schafer, the couple was in regular contact with 
local law enforcement. "We were complying with state law. We are 
caregivers. We grew in reasonable amounts," said Schafer.

But as more and more pot clubs and doctors have found out since the 
passage of Proposition 215, state law hasn't provided much protection 
from a federal government set on eliminating medical marijuana. 
Federal law then, as now, still prohibits marijuana, medicine or not, 
just as it does LSD, heroin and biker crank.

And, despite being in contact with local agencies and running the 
clinic out in the open, the feds secretly started laying a trap for 
Fry and Schafer.

In May of 2001, the U.S. Supreme Court ruled that nobody accused of 
using or growing marijuana would be allowed to use "medical 
necessity," including the provisions of Proposition 215, as a 
defense. It was now open season on pot doctors and cannabis clubs, as 
Fry and Schafer soon would learn.

On September 28, 2001, Schafer and his daughter, Caroline, and son, 
Cody, returned home to see a line of dark SUVs in their driveway, and 
federal Drug Enforcement Agency officers with guns drawn. Fry was 
home when the DEA arrived, she was handcuffed and forced face down in 
the dirt while the agents tossed the house. (See, "Reefer madness," 
by Chuck Seidel, SN&R Feature Story, November 29, 2001).

Federal agents found 34 marijuana plants and carted away stacks of 
patient records. They searched and seized records from CMRC's offices 
at the same time.

That was almost six years ago. It would be five years before the feds 
could get a grand jury to indict them. They were allowed to continue 
writing recommendations for patients, but the couple didn't grow pot 
for themselves or anyone else again.

Instead, the couple periodically was subjected to random drug 
tests-even though they had not been convicted of any crime. Assistant 
U.S. Attorney Anne Pings justified the testing by saying the couple 
would not be able to mount an adequate defense if they got high. Both 
have now switched to prescription painkillers such as OxyContin and Valium.

Really, the only hope Fry and Schafer ever had was "jury 
nullification." They hoped someone on the jury of their peers would 
decide, as voters in California and a dozen other states have, that 
the federal law was not fair, "not supported by the people."

The fact that high profile attorneys like Tony Serra and Lichter took 
on the El Dorado couple's case pro bono underscores how important the 
case had become to the medical-marijuana movement. Though their 
lawyers worked for free, the other expenses of putting on a defense 
has cost the couple nearly $100,000.

Local talk show host Christine Craft dedicated the last segment of 
her radio show every day to the trial. In interviews with Schafer, 
Fry and their attorneys, Craft frequently talked about the notion of 
jury nullification and blasted the U.S. government attack on medical 
pot. Aside from whipping up the ire of her mostly liberal listeners, 
Craft's show got the attention of the case's prosecutors, who 
apparently listened to and tape recorded the show every day. Pings 
grumbled that the broadcasts threatened to "taint the jury pool," and 
even tried to use Fry's words on the program as evidence in the case, 
arguing that some of her comments constituted a confession. But Judge 
Damrell refused to let the jury hear that tape and blew off Pings' 
claim that Fry had confessed to anything.

He was less generous whenever the defense tried to bring in what they 
felt was at the heart of the case: Proposition 215 and the fact that 
the people of California had rejected federal law and adopted their 
own medical-marijuana law.

"All of the important issues, the judge has ruled, are out," Lichter, 
Fry's attorney, told SN&R during the trial.

This led to some almost comical-and, for the defense, deeply 
frustrating-exchanges between the two legal teams and Judge Damrell.

During closing arguments on August 15, Serra, who represented 
Schafer, was frequently interrupted by Pings.

"Marijuana is not a dirty word," Serra told the jury. "For her and 
for Dale, and for many, it is a medicine,"

"Objection your honor," Pings said, popping out of her chair.

"Sustained," Judge Damrell said.

Later, Serra tried to tell the jury his client was an idealist, not a 
greedy drug dealer.

"He dropped out of the legal profession. He was not motivated by 
profits. From their perspective, what they were doing was good and 
right. What is good and what is right can not be illegal,"

"Your honor! Objection! He's talking about jury nullification!"

"Sustained. Counsel that is not the law!" Damrell scolded.

Indeed, Judge Damrell told Serra he had "crossed the line" after 
Serra asked the jury to consider that the case was biased, a 
political prosecution emanating from Washington, D.C. Such bias, he 
said, constituted reasonable doubt.

"If this case has an ulterior motive," Serra explained. "If this 
entire case is intended to stop the medical-marijuana movement!"

"Objection!"

"Sustained!"

After closing arguments ended last Thursday, it took the jury just 
three hours to return guilty verdicts. Judge Damrell set a sentencing 
hearing for November 26, the Monday after Thanksgiving. Because the 
jury decided that the couple had grown more than 100 plants, they 
face a federal "mandatory minimum" of five years in prison, and up to 
$1 million in fines.

The defense says there were never 100 plants at any one time. 
Remember, the DEA only found 34 when they raided the couple's home, 
which they argue is consistent with the "reasonable personal use" 
provisions of Proposition 215. But federal law allows the jury to add 
up all the plants that were grown "over the course of the 
conspiracy," in this case three years.

The couple already is planning to appeal, pinning their hopes on 
Ninth Circuit Court of Appeals justices to allow Proposition 215 back 
into the courtroom. "I thought this was California. I thought we were 
doing the right thing," said Fry.

It remains to be seen whether the couple will remain free during the 
appeal process or if they will need to mount their appeals from prison.

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MAP posted-by: Keith Brilhart