Cannabis Club Case Tests Reading of Medicinal Pot Law

Hundreds of drug-related cases pass through Orange County courts each month, but the case of the People vs. David Lee Herrick is bound to set a new standard regardless of its outcome.

A member of a Garden Grove-based cannabis club, Herrick is charged with selling marijuana, and his case offers the first local test of the medicinal marijuana initiative passed by California voters in 1996. At issue for a jury to decide is whether Herrick’s acceptance of cash “donations” in exchange for marijuana for medicinal use amounts to the illegal distribution of the narcotic. If convicted, Herrick would face as many as nine years in prison.

The trial, expected to begin Wednesday in Orange County Superior Court, puts the cannabis club on the front lines of the statewide battle to keep marijuana available for medicinal use: In addition to Herrick, club director Marvin Chavez is in jail awaiting trial on marijuana charges while club member Jack Schachter--arrested in the same snare that caught Chavez--is out on bail.

The medical marijuana initiative, known as Proposition 215, was approved by 56% of voters in November 1996--much to the chagrin of law enforcement officials who believe it is a step toward legalizing the narcotic.

Since then, cannabis club members and directors have been taken to court from San Francisco to San Diego, with many activists alleging they have been unfairly targeted for arrest.

Members of the Garden Grove club, officially called the Doctor, Patient, Nurse Support Group, say the arrests of Herrick, Chavez and Schachter, who have all pleaded not guilty, prove their point. Marijuana is natural medicine, and the men are guilty only of helping sick people soothe their chronic pain, they say. The club’s roughly 200 supporters statewide see the trio as martyrs in a noble cause.

Club members and defendants see the trial--and the handful of others held elsewhere in California, including San Francisco--as key battlegrounds. They point to all of those rallying to help them as evidence they are winning the struggle.

Doctors who advise patients to use marijuana have offered to speak out during their trial. Chavez’s two lawyers are working for free to thank him for providing marijuana for medical use for their suffering relatives.

Herrick’s public defender, once nonchalant about the whole issue, now is reading books on marijuana and is passionately devoted to freeing him. And an investigator for the public defender’s office attended the last cannabis club meeting to outline how its members could distribute marijuana and receive money for it--without breaking the law.

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But prosecutors have a very black-and-white view of the matter. Herrick is on trial because he broke the law, they say. California’s medical marijuana initiative allows the cultivation and possession of small amounts of marijuana for personal use only. That makes any exchange of money, goods or services illegal.

Whether Herrick sold the drug to sick people or healthy ones is irrelevant, officials said, because Herrick is facing charges he accepted money in exchange for marijuana.

“This is a case of a marijuana seller selling marijuana,” said Carl Armbrust, head of the Orange County district attorney’s narcotics unit, who contends that the case does not even qualify as a test of Proposition 215.

Indeed, Judge William R. Froeberg has almost closed the door to a Proposition 215 defense for Herrick, who was arrested in May 1997 after police found seven bags of marijuana in his motel room. The marijuana was marked “Not for sale. For medical purposes only.”

Froeberg ruled that Proposition 215 does not protect the sale of marijuana, even for medicinal reasons.

So Herrick’s attorney, Sharon Petrosino, said she will try to prove that her client accepted only voluntary donations to the co-op--not payments in exchange for drugs.

Herrick and the Garden Grove club require members to bring a doctor’s written authorization; the club checks back with the doctor and requires members to promise not to give the marijuana to anyone else, Petrosino said.

Petrosino also will argue that Herrick’s case falls into the area of medical necessity law. “It says that under certain conditions, we allow people to violate the law because the alternative is so egregious.”

Both sides plan to call to the stand witnesses who are ill and in chronic pain--Petrosino to prove they needed the drug and voluntarily made donations to the co-op, and Armbrust to prove they received drugs for money.

Chavez and Schachter were arrested last month after an undercover operation during which a Garden Grove police officer posing as a caregiver approached them separately about purchasing some “medicine,” they said.

“I told him, ‘This is free,’ and I wrote a receipt saying one-quarter ounce, free,” said Schachter, who said he then asked the undercover officer if he would like to make a $20 donation.

“A couple days later, there’s a knock at my door and it’s the Garden Grove Police Department,” said Schachter, who cultivates marijuana plants to ease the pain caused by detached retinas.

The same officer also obtained marijuana from Chavez and arrested him.

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In an interview at the Orange County Central Men’s Jail, Chavez, who faces trial later this year, admitted taking cash in exchange for the drugs, but he said the “donation” was understood to be a token amount to help the club cover its costs.

“Often, we don’t even take any money,” he said.

Right now, Chavez, who has been incarcerated since Easter, says he could use some medicine himself. The chronic back pain he suffers from has gone untreated except for Tylenol allotted to him by the jail.

“I’m hurting,” Chavez said. “My spirit is strong, but my body is hurting.”

But while he remains in jail in lieu of $100,000 bond, Chavez said he has used his time to proselytize to guards and prisoners alike about medicinal marijuana.

“This cause, to me, is worth going to jail for and suffering for,” Chavez said. “This is my mission, and I’ll never give up.”