- The Washington Times - Monday, February 19, 2001

SAN RAFAEL, Calif. Advocates of medical marijuana use who won public approval of their cause in a 1996 ballot initiative are now using recall campaigns against county prosecutors around California in an attempt to muscle law enforcement into accepting legalization of medipot.

Already, activists for the American Medical Marijuana Association (AMMA) in Orange County's Dana Point have qualified a recall of Marin County District Attorney Pamela Kamena for a May 22 special election vote. The special election will cost the county an estimated $500,000.

They group has also "warned" a half-dozen other district attorneys to cease prosecuting patients who smoke marijuana to ease the pain and nausea of some illnesses or face a recall. To force a special election, petitioners must collect valid signatures of 15 percent of voters who cast ballots in the last general election.

"We see recall actions as a means of convincing local prosecutors to comply with Proposition 215," said Steve Kubby, founder and director of the AMMA. "This isn't a vindictive thing on the part of patients. It's a matter of survival."

Proposition 215 legalized the use of pot for medical purposes with a physician's recommendation. The initiative passed by a 56 percent to 44 percent margin and has produced confusion and controversy ever since as U.S. attorneys, judges and some local sheriffs and prosecutors refused to recognize it as a defense in marijuana possession cases.

Statewide, defendants in 23 criminal cases have used it as a defense since the initiative was passed. Of those, 16 persons have been acquitted of possession charges.

A jury in the Sierra Nevada Mountain town of Auburn voted 11-1 to acquit Mr. Kubby of most drug-possession charges last month stemming from a 1999 raid on his home near Lake Tahoe. Mr. Kubby, who ran in 1998 as the Libertarian Party's candidate for governor of California, and his wife were tried on a variety of drug-possession charges after police netted more than 100 small marijuana plants in that raid.

Mr. Kubby says he has used marijuana since 1976 to combat a rare form of adrenal cancer. His physician testified that he needs the pot to survive. Mr. Kubby was convicted only of one count of possession of a hallucinogenic mushroom but has appealed that verdict on grounds the mushroom was a souvenir that had long since lost its potency.

One of the district attorneys who has been warned of impending recall is Bradford Fenocchio, who supervised the Kubby prosecution.

The recall in leafy Marin County, just across the Golden Gate Bridge from San Francisco, comes despite what its district attorney, Ms. Kamena, calls her "progressive view" about medipot. Her office has issued guidelines exempting from prosecutions anyone with fewer than seven mature cannabis plants and less than half a pound of dried marijuana.

"These people want you to believe this is about medical marijuana," Ms. Kamena told a news conference last week. "It is not. This process is about the rule of law and the entire legal process."

Lynette Shaw, director of the AMMA's Marin County branch, argued that even when medipot patients are not prosecuted, authorities in the county frequently confiscate their supplies.

"We're looking at 300 people who lost their pot," she said. "After they get arrested and lose their pot and go through all these hoops, only then are they let go. They're harassing these poor patients to death."

Opponents of the Marin County recall say the petition signature drive that qualified the issue for a vote was misleading. The petitions, they note, did not mention medipot and instead attacked Ms. Kamena for prosecuting a woman convicted of falsifying a court document in a child-custody case.

Retired county Judge William Stephens told the San Francisco Chronicle he believes the recall effort is "a fraud being perpetrated on the citizens of this county. The primary interest of those seeking to advance the petition is to have the district attorney look away when marijuana is used."

Meanwhile, most prosecutors say they will not allow themselves to be pressured by any recall efforts.

"We're not going to react to someone wanting to put some type of political pressure on us to make a decision on how we should apply the law," said Edward Berberian, assistant district attorney of Sonoma County.

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