Pubdate: Mon, 27 Oct 2014
Source: San Francisco Chronicle (CA)
Copyright: 2014 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko
Page: C1

RARE FEDERAL HEARING SET ON VALIDITY OF POT BAN

Marijuana users and growers usually try to stay out of federal 
courts, which strictly enforce the nationwide laws against the drug 
and have rebuffed challenges to the government's classification of 
pot as one of the most dangerous narcotics.

But that could change this week when a federal judge in Sacramento, 
in a criminal case against seven men charged with growing marijuana 
on national forest land in Trinity and Tehama counties, hears what 
she has described as "new scientific and medical information" that 
raises questions about the validity of the federal ban.

The Drug Enforcement Administration classifies marijuana, along with 
such drugs as heroin, LSD and ecstasy, in Schedule One-substances 
that have a high potential for abuse, have no currently accepted 
medical use, and can be dangerous even under a doctor's supervision. 
The classification amounts to a nationwide prohibition on the 
possession, use or cultivation of the drug. The DEA reaffirmed 
marijuana's status in 2011, and a federal appeals court in 
Washington, D.C., upheld it last year.

But the hearing that starts Monday may be the first of its kind in a 
criminal case since the early 1970s, shortly after Congress put 
marijuana in Schedule One under the DEA's supervision, said Zenia 
Gilg, the San Francisco criminal defense lawyer who filed the current 
challenge.

"At that point, not a lot was known about the medicinal benefits of 
marijuana," said Gilg, a member of the legal committee of the 
National Organization for the Reform of Marijuana Laws. "It's about 
time somebody looked at the new evidence."

That will be U.S. District Judge Kimberly Mueller, who granted the 
hearing, scheduled for three days, over prosecutors' objections. In 
an April 22 order, she said lawyers for the defendants had presented 
expert declarations "showing there is new scientific and medical 
information raising contested issues of fact regarding whether the 
continued inclusion of marijuana as a Schedule One controlled 
substance ... passes constitutional muster."

She issued the order in a case that, based on the evidence so far, 
has little to do with medical marijuana - the defendants are charged 
with growing a large tract of pot plants on forest land, and there's 
been no indication that it was for medical use. But Gilg said that's 
irrelevant if they were charged under an unconstitutional law.

As Gilg acknowledges, it will not be an easy case to win. She and her 
colleagues must prove not merely that the federal law is misguided, 
based on current research, but that it is entirely irrational. An 
initial ruling would apply only to the current defendants, but the 
impact would be broader if higher courts weighed in.

Support for defense

The witness list includes doctors and researchers who laud 
marijuana's medical benefits and say it is much less hazardous than 
tobacco, alcohol and some everyday medications, and a former FBI 
analyst who says the federal ban has been socially destructive. 
Defense lawyers say they also are drawing support from an unlikely 
source - President Obama's Justice Department, which, while defending 
the federal ban in court, has advised federal prosecutors not to 
charge people who are complying with their state's marijuana laws.

California, 20 other states and Washington, D.C., allow the medical 
use of marijuana, and two of those states, Colorado and Washington, 
have also legalized personal use.

"If marijuana is actually such a dangerous drug, the rational 
response by the Department of Justice would be to increase, not 
decrease, prosecution in those states," Gilg said in court papers. 
She also argued that the government's state-by-state enforcement 
policy is discriminatory.

The government's expert witness is Bertha Madras, a Harvard professor 
of psychobiology and a former official in the Office of National Drug 
Control Policy under President George W. Bush. In a court 
declaration, she said marijuana "has a high potential for abuse" and 
is properly classified among the most dangerous drugs.

Medical uses debated

Contrary to popular notions, Madras said, marijuana is addictive for 
frequent users, interferes with concentration and motivation, and can 
cause brain damage. Marijuana smoke contains "significant amounts of 
toxic chemicals," she said. And despite "anecdotal evidence" that it 
helps some patients feel better, she said, there are no valid 
longterm studies that support its use as medicine - in fact, although 
some of the plant's ingredients may be beneficial, "there is no such 
thing as medical marijuana."

Nonsense, said Dr. Philip Denney, a defense expert witness and a 
founding member of the Society of Cannabis Clinicians. Despite 
government restrictions on the supply of marijuana for research, he 
said in a declaration, new studies have shown "remarkable promise" in 
using marijuana to relieve pain and treat numerous illnesses, 
including forms of hepatitis, gastrointestinal and sleep disorders, 
and Alzheimer's disease.

Marijuana, Denney said, is a "nontoxic, nonlethal substance" with 
little potential for abuse and no recorded cases of fatalities, in 
contrast with the deaths caused by alcohol and tobacco. He said its 
side effects pale in comparison with the serious illnesses that can 
be caused by heavy doses of pain relievers like Tylenol and Advil and 
the hallucinatory effects of the main ingredient in NyQuil and 
Robitussin cough syrups.

Another defense expert, James Nolan, a chief of crime analysis and 
research for the FBI during President Bill Clinton's administration, 
said the main harm caused by marijuana is "its status as an illegal 
substance," which has relegated much of its distribution to criminals 
and cartels and ruined the lives of many of its users.

Mueller, who will weigh the conflicting testimony, is a former 
Sacramento city councilwoman and federal magistrate who was appointed 
to the bench by Obama in 2010. She is the first female judge in the 
Eastern District, which includes Sacramento and Fresno.
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