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20 years

 

n Monday, Oct. 4, 2010 a frightened, apprehensive yet defiant 22-year old Medford, Oregon man, Joshua Brewer stood before Circuit Court Judge Raymond White who was about to levy sentence on him for being found guilty, on June 2, 2010, of one felony count of manufacturing marijuana and one felony count of illegally possessing marijuana. Beside him stood his court-appointed attorney, Michael Bertholf who, in August, argued that Judge White should dismiss the charges against his client because Brewer, who possesses a medical card allowing him to process and possess smokable marijuana, did not violate Oregon law. And worse, White failed to instruct the jury about Oregon's medical marijuana laws.

Instead, White chastised Brewer and assured him that he was going to make an example out of the defendant for abusing Oregon's Medical Marijuana Program.(ORS 475.302 and ORS 475.320). Under the law, patients under the care of licensed Oregon physicians who prescribe marijuana are allowed to possess up to 24 ounces of dried, smokable marijuana. Brewer is a medical patient carrying a medical card which legally allows him to grow, possess, and smoke, marijuana for health reasons. Clearly, most law enforcement officers in the State of Oregon don't like the law. Neither, apparently, does Judge White. In Medford, law enforcement has opted to simply nullify the law. To cops in Medford and around the State, if that means harassing, arresting and jailing medical patients who need marijuana to maintain some semblance of a normal life, so be it. Medical marijuana cardholders in Medford and all across Oregon often encounter harassment and more serious infringement by police, and no sympathy from courts who disagree with Oregon voters who legalized medical marijuana in 1973.

Inappropriate searches and seizures are commonplace across the State. On July 21, 2010, Washington County, Oregon's Westside Interagency Narcotics Team served a search warrant on the residents of a home on the 3300 block of SW 173rd Avenue in Aloha because, police said, investigators had received information that marijuana was being grown and sold at the residence. Of course they did. Their informant? The State medical marijuana database of registered growers and medical users. Police knew the residents at that address were registered Medical Marijuana users. Arrested that evening were 49-year old Melanie Ann Orr who was a registered marijuana medical patient carrying an OMMP card; her daughter, Amanda Dawn Orr, age 20; and 45-year old Michael King. All three resided in the home. King was a registered OMMP caregiver which allowed him to grow for those he served as caregiver. Police were engaged in a "check and see" raid. They wanted to check the quantity of weed being grown by King and Orr to see if they were within the legal limits. The media neglected to report how many people King legally grew medical marijuana for. Melanie Orr is also a registered grower, and King was not her grower.

Investigators proudly reported that they seized 119 marijuana plants and nearly four pounds of "harvested" marijuana. If King grew marijuana for as few as two people in addition to Orr, all of the processed marijuana found in their home was legal. However, for the plants themselves to have been legal, King would have to be the caregiver for at least seven medical marijuana patients. Grown for only three registered OMMP users, King and Orr would have had a problem. Which is why police target OMMP card carriers. The temptation to grow too much and sell the excess in today's economy may be too tempting for people living on hard times to resist.

In Oregon, there is one medical marijuana card holder for every 100 residents in the State. That translates into about 40 thousand legal pot growers. Oregon is now the nation's third largest producer of indoor-grown marijuana. Oregon's pot crop harvest is worth roughly $472 million. This past summer, law enforcement seized approximately 100 thousand marijuana plants—most of which, law enforcement argues, was headed for the black market. Legal indoor growers in Oregon cultivated about a ton of high quality medical marijuana last year. That's a lot of pot.

In Oregon, common law enforcement theory is that every registered medical marijuana user is growing what they need for their personal medical use plus a crop to illegally sell to local potheads. That's why the narcotics teams across the State appear to spend more time raiding OMMP card holders than known or suspected illegal drug traffickers. And, that's why when police appeared at Joshua Brewer's house they used, as their ruse, the story that they were responding to a "shots fired" report. They had no warrants and no legal right to enter Brewer's home in September, 2009. But when they asked Brewer if he had any weapons in the house and Brewer admitted he did, cops insisted on checking the weapon to confirm his statement that it had not been fired. Once inside, they went though the pretense of searching for other guns that might have been fired. Of course, they weren't really looking for a gun. They wanted to see how much marijuana Brewer was growing in the house on Spring Street.

Police also knew that Brewer was a registered grower who was growing plants for two other OMMP cardholders. Police found several marijuana plants in the Brewer home. By law, growing for three licensed medical marijuana users, Brewer could legally have up 18 plants but no more than 24oz of dried, processed marijuana per registered user, or a total of 72 oz. of smokable medical marijuana (or not more than 4.5 lbs of dried, "usable" pot. According to Oregon law (ORS 475.302 and ORS 475.320) usable marijuana is defined as "...the dried leaves and flowers of the plant Cannabis family Moraceae." The law specifies the leaves must be dried. To process (dry) leaves, they must hang for days. What difference does that make? Freshly cut marijuana leaves contain a lot moisture which adds weight to the cannabis leaves. Properly dried marijuana weighs considerably less than freshly cut cannabis.

Did the Medford police know that? If they had spent any time on the drug task force they would. Not only did they weigh the newly cut marijuana leaves, they also found molded spoilage in the trash, stem cuttings, and some other unidentifiable weeds which they also weighed. They placed all of the confiscated material in evidence bags, sealed them and sent the bags to Oregon State Police lab for processing.

The undried marijuana weighed 5.26 lbs. According to Bertholf, approximately half of the weight of the bagged "evidence" was due to moisture, spoiled vegetation or unidentified weeds that were not cannabis. Brewer was charged with the illegal possession of 5.26 lbs of marijuana. (According to a report written by Cannabis Connection, "[w]hen the marijuana was opened at the lab, all of the contents were so moldy that the technicians were unable to identify the 'vegetable material' inside the bags. Their report was entered into evidence as 'unidentifiable.' Police evidence photos, taken in Brewer's home, clearly show cannabis branches, suspended by coat hangers from the ceiling. But they also show other plant material which appeared to be plain, ordinary garden weeds, that were included in the evidence collection, and weighed as cannabis by the State Police." According to Medford police, only a small portion of the bagged evidence was moldy and unidentifiable.

Because of the well-published harassment that medical marijuana users in Oregon have received from law enforcement agencies statewide since the introduction of Oregon's medical marijuana program, Brewer deliberately limited the plants he grew to 12 rather than the 18 plants allowed by Oregon law. It didn't help him that night in September, 2009.

As they searched his home, Medford Police found his handgun. (They knew where it was since Brewer told them, but the fabricated albeit legal search for the weapon justified the illegal search for what they were certain would be illegal quantities of marijuana.) Brewer insisted his gun had not been recently fired. But, since the "shots fired" story was completely bogus, police refused to check Brewer for gun powder residue because they already knew there was none to find and, at the moment, they weren't really interested in the handgun. They would be later if they found enough cannabis to charge him. At that time, a federal weapons charge would be the icing on the cake.

I suspect, because they knew they violated Brewers constitutional rights, Medford police assured him he would only be charged with a misdemeanor if he admitted he broke the law. Brewer, who knew he had not broken the law, extended his wrists for handcuffs, telling police he had done nothing wrong. But he did. He assumed the criminal justice system still worked, that lady justice was truly blind, and that cops and judges didn't play footsies under the covers to bend laws they don't like to suit the system they are defending from (not for) the public. It's called Oregon Justice.

Convinced he would be exonerated in a jury trial of his peers, Brewer was stunned on June 2 when the jury brought in a verdict of guilty on the two felony counts. He had done nothing wrong. Under Oregon law, Brewer could have received up to 10 years per count and fines of $250,000 for each guilty verdict. Instead, Judge White sentenced him to 60 days in jail, with credit for time served. Brewer had already served 17 days, leaving him 43 days in the Jackson County Jail. White also sentenced him to 3 years on probation. Interestingly, Judge White allowed Brewer to keep his medical marijuana card—and the right to grow his own marijuana. White also allowed Brewer to participate in a work-release program where he could continue to go to his job during the day and return to jail at the end of each shift. However, the law enforcement agency that controls the jail decided it could arbitrarily determine where it was that Brewer performed his "work release" work since he was in their custody. To them, justice was best served by Brewer picking up trash along country roads in and around Medord and not working his income-producing job, paying his rent, and putting food on his family's table. Tonya Brewer was told that the decision not to let her husband return to his place of employment during his "work release" was made because the Brewer case was too high profile, and the "system" was determined to make an example out of him in order to deliver a very clear, very unambiguous message to other medical marijuana patients in the State of Oregon.

It appears when Brewer is released from jail on Nov. 17, if his boss does not have a real clear understanding of what happened to Brewer, his first problem will be finding a job in a world that shuns felons—particularly felons with drug records. His second problem will be providing food and shelter for his wife, Tonya, and their three children. Yet, as accommodating as the judge was in trying to ease the burden on Brewer's family, he nevertheless refused Brewer's request for a new trial. He also rejected postponement of execution of sentence pending Brewer's appeal. Brewer began serving his jail sentence on October 4.

But worse, because he was wrongfully charged, wrongfully tried by a biased judge, and wrongfully convicted by a jury which did not get proper instruction from the judge, Brewer is now a felon. As such, he can no longer own a firearm to protect his family. And, he no longer possesses a constitutional right to vote Judge Raymond White out of office. And, as noted, his brand-new felon status will impact what he does and how society will treat him for the rest of his life.

(Editor's Note: I have steadfastly believed in tough drug laws. Right or wrong, I believe that those who use recreational marijuana eventually move up to drugs that have more "kick." Cocaine, heroin and methanphetomines are drugs that are generally financed by a majority of users through shoplifting, petty theft, and as the habit grows, robbery and prostitution. (It must be noted that Brewer does not, nor ever has, used "hard drugs.") Add to my litany of criminal offenses associated with drug use and we have gang turf wars for control of the streets in many urban neighborhoods that result in gang violence that kill innocent bystanders. I understand and agree with law enforcement's "no tolerance" policies on drugs like cocaine, heroin and methanphetomines. But, I admit, I am now questioning my own longstanding views on marijuana.

(My wife suffers from chronic pancreatitis and ovarian cancer. She lives in excruciating pain. There is no medical treatment nor cure for chronic pancreatitis. The only "treatment" is pain management. The prescription pain killers my wife uses are ineffective and barely take the edge off the pain she suffers 24-7. If medical marijuana was legal in this State, I would encourage my wife to use it. When I pondered writing this piece, one of the questions I could not answer about Joshua Brewer was: what ailment or injury did he suffer from that granted him the right to use medical marijuana? Brewer had an industrial injury and suffers from permanent nerve damage in one hand and arm. Like my wife, he lives in constant pain. And, like my wife, traditional prescription pain killers barely take the edge off the pain he suffers.

(However, while I see a need for medical marijuana, I do not believe that medical sufferers should be allowed to grow their own pot. I believe marijuana should be made available by the State through prescription from licensed pharmacies to those with chronic pain. The price needs to be regulated and subsidized to keep it affordable to the elderly and those suffering from glaucoma regardless of age. If the federal government can keep the pharmaceutical price low enough, it very likely would kill the illegal street trade which could not compete. But, in the meantime, as politicians and societal do-gooders debate the merits, we have to contend with how to regulate registered growers in medical marijuana States without drug task forces periodically staging raids on the pretext that someone reported the medical marijuana users might be crack houses. States with medical marijuana laws need to have in place a check and balance system to make sure that those with a license to grow marijuana are abiding by the law, and that regulating the "system" does not entail no knock warrants where police stage raids in the middle of the night, break down doors and shoot family pets who bark too much. Instead, verifications should be done by unannounced visits from State Health Inspectors or State Drug Administration officials accompanied by a sheriff's deputy or State police officer with the power to arrest those who violate the law would be the most appropriate safeguard to verify compliance with State laws.)

 

Just Say No
Copyright 2009 Jon Christian Ryter.
All rights reserved
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