Source: The Orange County Register (CA) Copyright: 1999 The Orange County Register Pubdate: Fri, 29 Jan 1999 Section: The Orange Grove Website: http://www.ocregister.com/ Contact: Alan W. Bock Note: Mr. Bock is the Register's senior editorial writer MARVIN CHAVEZ DOESN'T DESERVE JAIL TIME I understand that a number of people have written letters to Judge Thomas J. Borris of the West County Court in Westminster regarding today's sentencing of Marvin Chavez, who was found guilty on several marijuana-related counts last November. Here is mine: Dear Judge Borris: The jury found Marvin Chavez guilty on some counts. That was virtually inevitable given the conscientiousness with which the jurors took the instruction that Proposition 215 (Section 11362.5 of the Health and Safety Code) was to play no part in their deliberations. But it would be a gross miscarriage of justice if Mr. Chavez were sentenced to prison time. You sat through the entire trial, as did I, and saw things the jury didn't see. You know that while Marvin Chavez made some mistakes and may have broken the law, he was engaged in a good-faith and above-board effort to implement the will of the voters when they passed Prop. 215. Officials should explain what he did wrong, then work with him to do things right, not throw him in jail. "Buyers' clubs" in other parts of the state have been closed through civil actions, not criminal charges. I remember talking with Carl Armbrust, the deputy DA who prosecuted this case, in the halls of various courthouses. In an informal setting, he was free with his theory of the case: that Marvin Chavez was a sophisticated marijuana dealer who cleverly used the Compassionate Use Act to cover his nefarious and highly profitable dealings. He even bandied about figures -- how much drug cops said large quantities could be bought for and the like - -- to underpin his theory that Mr. Chavez was making a lot of money. But Mr. Armbrust didn't present that theory in court. True, he said that under the law Mr. Chavez was nothing but a marijuana seller, but he didn't try to document his sophistication or vast profits. That's because -- as Mr. Armbrust knows and probably knew all along -- there was no evidence that that's what Marvin Chavez was about. If anything, the evidence is that Mr. Chavez is guilty mainly of an excess of compassion and naivete when he meets people with a convincing story about physical suffering. Mr. Chavez should have been more suspicious of the undercover cops who entrapped him. He probably should have been more sophisticated in the way he ran his support group. Those shortcomings made him vulnerable to law enforcement officials more concerned with proving that Prop. 215 was a mistake than with devising ways to implement it in a lawful and honorable fashion. I followed Marvin Chavez's efforts for several years and in the last year I've gotten to know him reasonably well. I've been to his modest house and had long talks with him and with other patients. I'm convinced there was no criminal intent in what he has done. Yes, there's resentment about aspects of the legal system and public officials who have refused to meet with him or discuss ways in which he might help to meet the needs of patients who have a legal right to have access to marijuana. But there's no criminal intent. Marvin Chavez tried to address some of the real problems that flowed from the fact that Prop. 215 (like most laws) was imperfect. The measure gave bona fide patients (and "primary caregivers," that amorphous term that still lacks anything resembling a rigorous definition) exemption from laws against possessing, using and cultivating marijuana. But it doesn't create an exemption from laws against selling, distributing or transporting marijuana. That might call for some wiggle-room in interpreting how those laws apply to medical patients, as more than one appeals-court judge -- concerned that a "right" that can't be exercised is an absurdity -- has suggested. But it definitely creates problems. Patients can grow marijuana in their homes, but it takes six months for the plants to mature. And some can't grow it. Where will they get it? In the absence of action by the state to implement the law -- e.g., allowing pharmacies to stock it with supplies from government-run plantations -- the most common answer is the black market. Where but the black market can you even get seeds? Marvin Chavez, starting from a limited knowledge base, tried to create a "white market" for medical marijuana. He contacted law enforcement officials to seek cooperation and counsel. He received none. He made mistakes; he may even have broken the law. But he was trying to do the right thing -- to implement a law passed by the people, which opponents have not tried to overturn in court because the effort would surely fail -- in the face of failure by authorities to do so. Sentence him to community service setting up a distribution network that meets every legal criterion, with the stipulation that no marijuana changes hands until you or a panel of judges has reviewed it for strict legality. Or sentence him to strict probation and keep an eye on him. But if Marvin Chavez serves even a day in prison for trying imperfectly to do the right thing it will be a grave injustice. - --- MAP posted-by: Richard Lake