Pubdate: Wed, 11 May 2011
Source: Anderson Valley Advertiser (CA)
Copyright: 2011 Anderson Valley Advertiser
Contact: http://www.theava.com/
Details: http://www.mapinc.org/media/2667
Author: Fred Gardner
Note: Fred Gardner is the editor of O'Shaughnessy's, the journal of
cannabis in clinical practice.
Bookmark: http://www.mapinc.org/people/Mollie+Fry
Bookmark: http://www.mapinc.org/people/Dale+Schafer
FIVE YEARS FOR WHAT CRIME?
Marian "Mollie" Fry, MD, and her husband Dale Schafer, an attorney,
turned themselves to U.S. marshals Monday, May 2. They were taken to
the Sacramento County jail, where they are awaiting transfer to
federal prisons. They have begun serving five-year terms -ostensibly
for the crime of Cannabis cultivation (growing plants), but actually
for the crime of political organizing (educating people).
Mollie Fry is a founding member of the Society of Cannabis
Clinicians, the group organized by Tod Mikuriya, MD, in 2000 to
enable doctors entering the field to share and publish findings and
observations - and defend themselves against persecution. Law
enforcement at the state and federal levels had loudly opposed
Proposition 215, the measure enacted by voters in 1996, and has
curtailed its implementation ever since.
Fry, 54, is a breast cancer survivor. She will be going to the
Federal Correctional Institution in Dublin, which is in visiting
distance for the kids and grandkids. Schafer, who turns 57 this
month, will be sent Taft, near Bakersfield. His looming concern is
medical care - he's a hemophiliac with severely painful,
blood-swollen joints, and is currently taking high doses of morphine
and other analgesics.
I asked Dale how he was going to be spending his last week-end of
freedom. He said, "Hugging my family."
Mollie and Dale raised five kids who are now grown-ups - Heather, 35,
and Jeremy, 34, from Dale's first marriage, and Jeffrey, 24, Carol,
20, and Tyler, 18, from their union. Heather and Jeremy have kids, 10
and 11. Carol is going to have a baby in October. The extended
family, minus mama and papa - which is what the grandkids call Mollie
and Dale - will be together in the house in the foothills west of Auburn.
"We've got to keep paying the bills while our parents are gone," says
Heather. "The government took all their savings, everything but the
house." An insurance policy has been paying the mortgage
($3,500/month) since 2007, when Mollie stopped practicing due to
disability. Dale doesn't think the company will use her imprisonment
as an excuse to stop paying, but he lined up a lawyer just in case.
Jeffrey has gone to work for the CannaCare dispensary in Sacramento,
and feels grateful to have a job. Jeremy is going to be traveling
with a country-jazz band. "They've got a big bus and gigs lined up
throughout the south," according to Dale. "He can't get wait to hit
the road. I told him, 'If that's your dream, man, jump on it and do
it. If you don't do it right now..."
* * *
Mollie Fry says proudly that there have been doctors in her family
since the Civil War. Her mother, a research psychiatrist, died of
breast cancer at age 42. Mollie, then 13, started using cannabis to
deal with her grief. It didn't impair her academically. She graduated
from UC Irvine School of Medicine in 1985 and did an internship at UC
Davis in psychiatry. She switched to family practice when she began
practicing in Lodi in '87. It wasn't until 1999 that she became a
cannabis consultant - a decision stemming from her own illness.
In December, 1997, an exploratory procedure (which Mollie had
insisted on against the advice of an oncologist) revealed a
malignancy that had spread to three lymph nodes. Her breasts were
removed and she underwent extensive radiation treatment. She used
cannabis to deal with the nausea and anxiety. "It was hard to get,"
Dale says, which is why he grew a few plants in their garden in the
summer of '98.
Dale had observed the medical use of marijuana first-hand when he was
in the Navy, a lanky 19-year old assigned to Oak Knoll Hospital. He
has indelible memories of assisting surgeons trying to "perfect" the
stumps of sailors whose limbs had been amputated en route from
Vietnam. "People who were in radiation therapy would go down the back
hallway to smoke," he remembered. "We knew that it was the only thing
that helped."
Dale worked in Kaiser emergency rooms to put himself through college
and law school. "I wasn't naive, I knew that marijuana had medical
benefits," he says, "But it wasn't until Mollie got cancer that I
really started digging into what Prop 215 was all about."
It's difficult to picture now - now that doctors willing to issue
cannabis recommendations are advertising in the media - but when Prop
215 passed there was only one physician proclaiming his willingness
to approve cannabis use for conditions other than AIDS or cancer: Tod
Mikuriya, a Berkeley-based psychiatrist. As of 1999 the number was
not in double digits, although demand was enormous. Most pot smokers
were embarrassed or afraid to ask their regular doctors for letters
of approval, and most doctors were unwilling to write them. Some were
afraid of getting in trouble with the medical board or the DEA and
jeopardizing their livelihoods. Others were too conscientious to
recommend use of a medicine they had learned nothing about in medical
school and couldn't discuss in terms of proper dosage, side effects, etc..
Bobby Eisenberg, an acquaintance whose son played on a Little League
team that Dale coached, put him in touch with Tod. "Mollie called him
and he invited us to visit him." Dale recounted. "We saw his office,
then visited him at home. I started reading everything I could find
on medical marijuana because I wanted to know how to advise people to
do it right. And the cops wouldn't tell me. Nobody will tell you to
this day how to do it right. That's the problem. They want you go to
go out and fuck up and then come and arrest you. Every other law that
the government passes, they tell you how to make it work. They won't
tell you. They want to keep it that way, they want everybody to be
afraid, to be afraid that if there's a slight change, they could go down."
In the summer of '99, Dale and Mollie opened adjoining offices in a
small foothills town called Cool. She did Cannabis consultations, he
advised patients of their rights. They were growing 20 plants on
their property when two El Dorado County Sheriff's deputies paid a
visit. The next day, Dale says,
"Mollie called the head narcotics detective, Tim McNulty. She told
him, 'Don't waste your money snooping around. I've had cancer, I'm
growing pot, and we want to talk to you about it. Get up here.'
"McNulty came to the house and I took him up to the garden. I used to
represent cops. I thought they trusted me. I talk their language
pretty well. He took a look at our paperwork and said it looked fine.
He even said I was a good grower! But he made a request that Mollie
wasn't willing to grant. He said, 'You should help us separate the
18-year-old skateboarders from the people with cancer.' Mollie said
'I'm a doctor, not a cop. I'm willing to see people and determine if
they're qualified. I'll do my job, you do yours.'"
Dale and Mollie felt confident that their medical/legal practices
were appropriate under Prop 215. In addition to seeing patients in
Cool, they leased space in Oakland and Lake Tahoe to conduct
one-day-a-week clinics (again following Mikuriya's practice model).
In Tahoe they met a young couple, Paul Maggy and Tracy Coggins, who
came to work for them as office managers. Maggy was facing a
cultivation charge from a 900-plant grow - which is not something
Mollie and Dale held against him. During the seven months he would
work for them, Maggy helped them grow marijuana (they grew 43 plants
in 2000) and in distributing the surplus to patients of Mollie's.
In this period Mollie encountered Attorney General Bill Lockyer at a
VFW fundraiser and told him about her practice. "Lockyer said 'Okay,
go for it,'" according to Mollie, "'but be low-key.' He said
something to imply, not that I should hide, but that I should be
discreet. Maybe that was the word he used... But the problem was, I
had staff and office rents, and how do you let patients know that
you're available without advertising?"
Dale arranged a meeting with Dave De Alba, the senior assistant AG
whom Lockyer had put in charge of medical marijuana cases, trying to
confirm that Mollie's procedures were legal under state law. The only
thing DeAlba advised doing differently, Dale says, was "stay the hell
away from Tod. He said that Tod is targeted, and that Tod is a
problem. We ignored that, of course, because we liked and respected Tod."
As for federal law, Dale was relying on a 1999 ruling by the 9th
Circuit Court of Appeals in the U.S. v. Oakland Cannabis Buyers Co-op
case that made "medical necessity" a possible defense for marijuana
distribution. Dale says he told the deputies who inspected his grow
in 2000 and again in 2001 that any surplus would go patients, and
they told him that as long as the plant total was below 100, the feds
would not take notice.
In July of 2001 Dale -increasingly convinced that marijuana was safe
and effective medicine- announced that he was running for District
Attorney of El Dorado County. In September the DEA raided his
property, confiscating 34 plants and 6,000 patients' files. In
November he got 15% of the vote for DA.
Mollie recalls the raid:
"I was going to bed with a migraine headache and they came running up
my driveway with their guns in their riot uniforms. I opened my arms
and said, 'I entirely submit. You are welcome in my home.' And they
still forced me to the ground and handcuffed me for two hours. My
hands turned white. I was so cold, my hands were shaking... So they
moved me into the trailer. Then I had to change our granddaughter's
shitty diaper while in handcuffs. I couldn't quite wipe... I said to
the agent, 'It's so hard having five children and a baby to take care
of and cancer...' And she looked at me and said, 'You have cancer?'
And I go, 'Of course I have cancer, why the hell do you think I'm doing this?
"Not even the staff that raided me and was abusing me knew the truth."
Neither Mollie nor Dale was indicted then, but the DEA notified Fry
that her prescription-writing privileges would be revoked because "It
is inconsistent with the public interest for a DEA registered
practitioner to live in a residence wherein large quantities of a
controlled substance are being stored, cultivated, manufactured
and/or processed for distribution and/or sale. In addition, it is
inconsistent with the public interest for a DEA registered
practitioner to be engaged in the illegal sale of a Schedule I
controlled substance such as marijuana at the practioner's registered
location."
It wasn't until June 22, 2005 -two weeks after the U.S. Supreme Court
ruled in the Raich case that an individual's right to use marijuana
as medicine under California law was superseded by the federal
prohibition - that Fry and Schafer were indicted. The charge was
conspiracy to grow ("manufacture") and distribute marijuana between
August '99 and September '01. Because they had grown more than 100
plants in this period, they were facing five-year mandatory minimums.
Dale says he was completely blindsided by the feds basing their
charges on a cumulative three-year total.
The US attorney offered a deal that would have meant 18 months in
prison for Schafer and no prison time for Fry. "But if she couldn't
practice and I was gone," Dale says, "we would have gone bankrupt and
lost the house. So we said 'Thanks but no thanks.'"
A 10-day trial was held in August 2007. Schafer was represented by
Tony Serra, Fry by Laurence Lichter. Opening arguments hadn't
concluded before Judge Frank Damrell instructed the jury that any
references to the medical use of marijuana were irrelevant under
federal law, and that they absolutely had to abide by his
instructions. Damrell also forbade the defense from citing their
belief that "medical necessity" on the part of patients justified
marijuana production and sales. (In 2003 the U.S. Supreme Court had
overruled the 9th Circuit's recognition of "medical necessity" as a
defense in the Oakland CBC case.)
Paul Maggy was the star prosecution witness. He had gone to prison in
connection with his earlier grow op, and been released after serving
13 months of a five-year term in exchange for his testimony. Maggy
swore that on behalf of Mollie and Dale he had sold processed
marijuana, clones, and "starter kits" consisting of lights, plant
nutrients and clones.
According to Bobby Eisenberg, whose account of the trial is
trustworthy, "Several patients were brought in to testify that they'd
purchased their marijuana from Dr. Fry or her staff. Jody Bollinger
testified that she purchased a half ounce of medicine from Mike
Harvey with a check made out to Schafer for $40. Keep in mind the
going rate for a half ounce of bud is closer to $200. Harvey
testified that some patients received their medical marijuana for
free; in some cases they paid only $10 delivery charge.
"Another patient, Jeff Teshera, a convicted robber, got leniency for
testifying that Fry examined him on Nov. 30, 1999, and that she and
Heather Schafer then sold him marijuana. It turned out that Heather
Schafer had given birth to her daughter on Nov. 29 and that Mollie
was with her at UC Davis on the 30th, all day. Dr. Fry had her
Physician's assistant, Rob Poseley, working in clinic on the 30th and
he testified that he, and not Dr. Fry, had examined Teshera. No
marijuana was sold.
"El Dorado County sheriff's deputy Bob Ashworth told the jury that he
had deceived Fry and Schafer for over a year and a half leading them
to believe that everything they were doing was legal under state law
and safe, given federal policies. He observed their marijuana gardens
in 1999, counting 20 plants and in 2000 when he counted 43 plants. He
spoke with Schafer on the phone numerous times, right up until a few
days before the raid on September 28, 2001, with assurances that
everything was fine. It turned out that El Dorado County deputies
were working hand in hand with the DEA and the prosecutor to entrap
Fry and Schafer throughout the investigation.
"Jacob DuCharme had been employed by Fry and Schafer just after Paul
Maggy had been hired. Jake wanted to testify that he and his wife had
been unwilling to work for Fry and Schafer because Maggy and his
girlfriend, Coggins, were up to no good. The DuCharmes knew that
Maggy and Coggins were out to sell marijuana to Fry's patients
without Fry's knowledge. DuCharme was silenced by prosecution
objections. He never got to say that Fry and Schafer had gone to
great lengths to insure that everyone in the office understood and
upheld the law in California. The jury never heard the truth."
The Real Crime
Why did federal prosecutors add up plant counts from three years of
cultivation to push the total over 100? Why were they so bent on
making Mollie Fry and Dale Schafer face mandatory-minimum sentences?
Why were Mollie and Dale a much more important target than Maggy, the
freed informer, who had grown 900 plants and had numerous other
offenses on his record?
Because unlike Maggy, Mollie and Dale were political organizers.
Anybody who joins a movement or a party has been organized by another
person or persons. Being organized (in the sense I mean it) is not
the same as being moved by a speech or a leaflet (no matter how
briliiant the orator or writer). It involves a closer, more direct
connection. There's always a person who confirms your inclination to
throw in with the group, or convinces you by example or explanation
that the cause is in your interests. That's what Mollie Fry and other
MDs following Mikuriya's leadership did with their patients - they
organized them. They did more than define the patient's pain
(emotional and/or physical) in medical terms, they enabled the
patient to tell the truth about their illegal drug use, i.e., their
subversive behavior.
Mollie Fry and her colleagues have helped organize hundreds of
thousands of legal medical marijuana users in California. This was
the insight of Phil Denney, MD, a neighbor of Mollie's. A brief
conversation with her at the mailbox in 1999 led Denney to get into
the field, too.
- ---
MAP posted-by: Jay Bergstrom