Medicinal Marijuana Laws on Trial

by Diane Dimond

In November 2007, Steele Smith and his wife Theresa were arrested by federal DEA agents in Orange County, California, for cultivating and selling marijuana. But the Smith’s aren’t your run-of-the-mill drug dealers, and the federal government has left them in legal limbo ever since.

The backstory:  In the summer of 2001, Steele was a successful self-employed marketing man who was felled by a gut-wrenching mystery illness.  He couldn’t eat and quickly dropped 40 pounds from his already thin 6-foot, 7-inch frame.  His doctors were stymied about what caused the debilitating condition.  After four excruciating months, a rare-disease specialist diagnosed a condition called Zollinger-Ellison syndrome, which pockmarks a victim’s upper gastrointestinal tract with multiple, painful ulcers.  Morphine was prescribed for Steele’s constant pain and he lived in that legally induced drug dependent state for the next three years eventually becoming an opiate addict.

In the summer of 2004, his devoted wife guided him on a journey toward detox. “It was either going to kill him or me,” Theresa told me. “I was black and blue from his outbursts. He couldn’t help it, of course, but something had to be done!”

It was an agonizing time, but Steele finally found the strength to wean himself off morphine. But Z-E is a lifelong affliction, and he was still hobbled by the lack of nourishment and the incapacitating pain. The Smith’s desperate search for alternatives brought them to information about the benefits of medicinal marijuana, made legal in California in 1996. The Smith’s sought and got a medical recommendation for Steele to try marijuana. (Under federal law, an actual prescription isn’t allowed for a so-called schedule 1 drug like heroin and, yes, marijuana)  They were directed to dispensaries in Los Angeles, an hour's drive away.

“All we found were drug-dealer types. They were all long haired, tattooed … basically drug dealers who got a store front--intimidating, like your typical head-shop,” Theresa explained.

But, miraculously, the medicinal marijuana worked. For the first time in years Steele was able to eat and manage his pain. His marketing ideas flowed again, and the couple decided to fill the void in Orange County and open their own medicinal marijuana dispensaries to bring relief to others. Their lawyer says they did everything right under California law.

“Mr. Smith set up a legitimate 501 non-profit corporation and he paid all applicable taxes,” a legal brief written by Smith’s attorney Eric Shevin asserts. “He issued patient ID cards, followed pharmacy labeling requirements. He even provided free medical equipment to his customers, like wheelchairs, walkers, porta-potties and wheelchair racks for cars. Mr. Smith allowed the Fullerton Police to document his grow operation thoroughly … and the lead officer even complimented him on the cleanliness and legitimacy of the operation.” By 2006, more than 1,000 patients were registered in the Smith’s database.

So, why were the Smiths arrested and threatened with 10 years in prison?  Because, back then, the U.S. Justice Department decided that the federal law against cultivating marijuana should trump the California law.   The Smith’s were caught up in a classic battle of a state’s right to pass its own laws.  Theresa spent two months behind bars.  The ailing Steele was held in a maximum-security jail for 10 months. Upon release, he was 20 pounds lighter and again hooked on narcotics given to him for pain.  The Smiths lost everything, including their home, cars, their savings, and they had to borrow money from Theresa’s widowed mother, who died a short time later.  They’ve lived under a terrible cloud of legal uncertainty for three years, all the while still grappling with Steele’s disease.

Today’s Justice Department looks at the state’s rights issue differently, and the Smith’s trial will surely be a landmark case closely watched by the 15 states that currently allow cultivation and sale of medicinal marijuana. It will be a milestone verdict because federal Judge Cormac J. Carney has made the unprecedented decision to allow a federal jury--for the first time ever--to hear affirmative testimony about California’s medicinal marijuana law.  This won’t just be about someone having been caught growing pot. The Smiths will be allowed to give groundbreaking testimony about why their interpretation of the state’s law led them to believe they were acting legally.

In 2008, candidate President Barack Obama told an interviewer, “I think the basic concept (of) using medical marijuana in the same way, with the same controls as other drugs, prescribed by doctors (is) entirely appropriate.” Fourteen months ago, his Justice Department instructed all federal prosecutors not to arrest medical marijuana users and suppliers as long as they followed state laws.

So, now, the feds are left squarely between a rock and a hard place with their three-year-old case against the Smiths.

Perhaps, because Judge Carney has a track record of ruling against prosecutors who he sees as overstepping their authority, the feds decided late last week to ask for yet another delay in the December 21 trial, postponing it until late March 2011.

“It’s the eleventh or twelfth delay,” Theresa Smith said in a weary voice. She sees the fight as a state’s rights issue, but also, she says, “as a patient’s issue. If it was meth or heroin or some opiate, I wouldn’t say that. But this is a plant that God put here for a reason. It helps people--so many people.”