Final Arguments in Cannabis Case that Hinges on Scheduling


By Keith Mansur

Oregon Cannabis Connection


Final arguments were heard February 12th in the U.S. 9th Circuit Court of Appeals in Sacramento, CA in a marijuana case that hinges mainly on the current status of Marijuana as a Schedule I drug. The case stemmed from the arrest and indictment of Brian Pickard and 15 others in California for cultivating marijuana in October 2011. Zenia Gilg and Heather Burke, who are members of the NORML Legal Committee, filed a motion in November 2013 to dismiss the case against Pickard and six others in the case, on constitutional grounds.

Their argument is based on the scheduling of marijuana as a schedule I substance, and that the federal governments own law, a law that protects state sanctioned medical marijuana programs, is in conflict with the governments continued contention that it is a substance that has no medical value under the Controlled Substances Act.

In response to that motion, U.S. District Court Judge Kimberly J. Mueller scheduled three days of information hearings in October 2014, soliciting testimony from a number of noted individuals for the defense. They included: Dr. Carl Hart, Associate Professor of Psychology at Columbia University, Dr. Greg Carter, Medical Director of St. Luke’s Rehabilitation Institute in Spokane, Washington, retired physician Phillip Denny, as well as author, consultant and expert witness Chris Conrad, former publisher of West Coast Leaf newspaper.

The defense witnesses provided substantial and compelling evidence to the medical value of marijuana. After a thinly veiled attempt to discredit defense witnesses by the prosecutor, US Attorney Gregory Broderick, studies were introduced again and again showing the medical value of marijuana. Also, current polls by the New England Journal of Medicine and Web MD showing support of medical marijuana by M.D.’s in the U.S. and numerous other points of evidence, including conflicting federal laws.

The governments “expert” witness, Bertha Madras, Ph.D., Professor of Psychobiology at Harvard Medical School and formerly with the White House Office of National Drug Control Policy for former President George W. Bush, provided testimony supporting schedule I categorization of marijuana, yet admitted the potential of “parts” of the plant for medical use.

Overall, arguments and testimony provided by the prosecution fell flat from the perspective of most cannabis activists, and the defense team also pointed to those contradictions in the testimony of the government’s star witness, Dr. Madras, to drive home the idea that the government’s arguments are conflicted and inconsistent.

Judge Mueller

The contradiction was highlighted once again in the final comments of the hearing when Judge Mueller asked Gilg a question regarding the competing expert witnesses from each side. Jeremy Daw of The Leaf Online covered the entire case and reported:

Judge Mueller asked, “If I rule for you, do I need to find that Dr. Madras is not credible?”

You don’t have to,” answered Gilg, “but you do have to look at the underlying basis of her decision,” noting Madras’ apparently contradictory positions of maintaining that the active ingredients in whole-plant cannabis had “tantalizing” promise of therapeutic benefit, but that the whole plant itself was categorically not medicine.

It’s like saying you can have the vitamins contained in a carrot,” Gilg analogized, “while saying you can’t eat the carrot.”

It’s a low bar we have to clear,” the prosecutor continually reminded the judge, maintaining that if an idea were “imaginable” or even “debatable,” then that by itself meant that it was rational.”

If Congress heard all the testimony you have heard in this hearing,” he conceded to Judge Mueller, “they may very well decide not to put marijuana in Schedule I.” But because one could “conceive” or even “imagine” a basis for keeping a drug now legalized for medical use in 23 states in a schedule which declares it to have no medical use whatsoever, the prosecutor argued that it should stay there.

But Gilg retorted that just because one can conceive or imagine alternate explanations does not necessarily mean those explanations are rational, pointing out that members of the Flat Earth Society may just as easily convene to imagine reasons why the planet doesn’t look all that flat from space.

 “The world is round,” Gilg concluded. “That’s a fact.”

A final decision from Judge Mueller is expected in March in a written opinion. A big thanks to Jeremy Daw for all the updates at The Leaf Online.

We can hope for a landmark ruling, but there is an argument that, even with a ruling, the CSA can only be changed by Congress, or the Attorney General, not the courts. Would the ruling be irrelevant? Will it end up in front of the U.S. Supreme Court? Will Congress act in the mean time?

The fight goes on.

© 2015 Oregon Cannabis Connection

OCC Staff

Oregon Cannabis Connections capable staff or contributors. Contributors names will be noted., covering the Oregon Cannabis Community and beyond, since 2010!

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