Pubdate:  Thu, 21 Aug 1997

Source:  SF Examiner (8/21/97), Page A4
Subject: Medical Pot Case Ends in Hung Jury
Contact:  Vote was 102 for conviction of Marin podiatrist
By Donna Horowitz
SPECIAL TO THE EXAMINER

SAN RAFAEL  A jury was unable to reach a verdict in one of the first tests
of the state's new medical marijuana law.

Dr. Alan Ager, a Marin podiatrist who smokes pot to ease back pain, faced
up to three years in prison on one count of cultivating marijuana. It was
believed to be the first time a jury has heard such a case.

The jury voted 102 to convict him Wednesday after a trial in Marin
Superior Court. A unanimous vote was needed for conviction.

Deputy District Attorney Teresa Leon didn't return a call, so it was not
known whether she would seek a second trial.

"I'm really thankful that there were so many courageous people," said
Ager, 49, from his Nicasio home after the trial. "It was my understanding
in talking to one of the jurors that six people stood up solidly for me."

However, he said, with pressure during jury deliberations and the judge's
"narrow standard of the law," ultimately all but two jurors caved in.

Ager accused Judge Vernon Smith, who presided over the trial, of being
biased, saying he was the same judge who had signed the search warrant that
recovered 135 pot plants from his yard last September.

"I think the judge has done everything he could to alter the juris
prudence process to do whatever he could to keep me from getting
acquitted," Ager charged. "I think he literally acted as a prosecutor,
objecting to each and every issue without the prosecutor intervening. It
seemed as if it was a parole hearing run by the DA."

Smith said he could not respond to Ager's comments because the case was
still pending.

Ager's San Francisco attorney, Laurence Lichter, said a court hearing
would be held in two weeks to determine whether there would be a new trial.

The prosecution argued that Ager was growing too much pot to be used for
his own medical purposes. Proposition 215, also known as the
"Compassionate Use Act;" which passed in November, allows people to use
medical marijuana with a doctor's recommendation.

Liebter was pleased with the hung jury, although he had hoped for acquittal.
Ager contends he must smoke pot almost continually to mask the back pain,
which he has suffered with for about 10 years. He says his problems were
caused by an accident in which a motor home rolled back on him.

During breaks in the trial, he went to his car, parked near the sheriffs
department, and smoked pot.

"It was something that allowed me to get through the trial. I would never
have been able to put up with the pain and stress of sitting in a chair for
hours at a time," Ager said.

In a previous case, Ager was arrested in 1993 after officers found 1,179
pot plants on his property, including some hidden in a hollowedout
haystack. Lichter said he was selling it at the time to selling it at the
time to support himself and his six children because he was unable to work
as a podiatrist due to his back ailment.