Below is a blog post originally published on 420mommy.blogspot.com and syndicated with special permission. If you live in Idaho, which is a scary place for cannabis consumers, please do everything that you can to support Serra Frank (the article author) and the Idaho cannabis reform movement!
By Serra Frank
In 1990, a Coeur d’Alene, Idaho woman, Lynn Hastings, won the right to challenge drug charges against her on grounds that she used marijuana out of medical necessity for rheumatoid arthritis.
The Idaho Supreme Court ruled: “We hold that Lynn Hastings is entitled to present evidence at trial on the common law defense of necessity. It is for the trier of fact to determine whether or not she has met the elements of that defense.”
For the last year, I’ve been fighting for the right to present the same defense in Ada County.
First, through the public defender’s office – who, I found out recently, only submitted a 3 page argument and a 3 page affidavit from my expert witness, Dr. Sunil Aggarwal.
After the public defender’s office juggled me through 3 different attorneys, and had horrible communication issues, I gave up on an adequate defense through them and found a paid attorney who was willing to accept payments – Tom Curl.
Tom represented me at the hearing for the Necessity Defense in March, 2017. He didn’t even have a copy of the motion that the public defender’s office had filed because they refused to give him a copy of the file; and neither of us had any knowledge as to the contents and arguments of the motion.
Tom did a very good job with nothing from which to argue. The judge, Michael Oths, took copies of some limited medical records, and Dr. Sunil’s curriculum vitae and said he’d send us his ruling.
I appeared in court again in June 2017, and when asked about the Necessity Defense order, the judge said he’d ruled on it the month prior.
For the next few months, I was told that Tom was writing a request to reconsider the Necessity Defense in an effort to try to get an opportunity to provide more evidence of my medical condition, disability, and necessity to the court.
When it didn’t happen, I realized our case strategies were very different and I was still not being heard by the court. I requested that Tom be discharged as my attorney so I could speak for myself.
I definitely cannot afford the retainer requests of attorneys who are willing to fight the charges the way that needs to be done.
Now, I am considered “pro se“.
And I am still being denied a defense.
In December, I submitted my own Motion to Reconsider and was again denied my right to present evidence as to necessity, including a doctor as an expert witness – despite my requests in accordance with the common laws of England, recognized by the Idaho Supreme Court and Idaho State Laws.
Judge Oths says that while I do meet most of the elements of the necessity defense, he just doesn’t feel I meet the requirement of an immediate threat of harm. So, he has now, twice, denied me a defense against the 6 marijuana related charges, and 6 years in county jail, I currently face.
Yet, as stated above, the Idaho Supreme Court has already ruled that it is up to the trier of fact – the jury, not the judge – to determine if the elements of the defense are met. And that I have a right to present evidence of the defense to a jury.
Plus, Judge Oths is not a doctor. It is not up to him to determine whether my condition contains an immediate threat of harm without my choice of medicine. My medical choices are between me and my doctors, not the State of Idaho.
The threat of harm is very real in my condition. The physical and emotional pain is very real for millions of Americans, so much that those with my condition are 3-4 times more likelythan the general public to choose to take their own life than live with the pain.
Indeed, we’ve had many in the Interstitial Cystitis community lost by their own hand in recent years. The impact on quality of life is so severe, some would rather choose to commit suicide than live in that kind of agony and misery.
A Harvard study concluded the quality of life of those with Interstitial Cystitis is comparable to those on kidney dialysis and those with chronic cancer pain.
I’ve had neither, and have no way to compare pain, but as a friend so kindly points out: severe pain and dysfunction is a harm — that’s why people win millions of dollars in settlements for pain and suffering.
But I see what is happening. I can see where, and most likely why, Idahoans who request the necessity defense when charged with Marijuana offenses because of their choice in medicine, are being denied and coerced into plea agreements.
A recent Idaho Supreme Court ruling declared there must be a reasonable view of the evidence to support the theory of Necessity.
This was said in response to a case where a man was traveling through Idaho and brought with him over 3 ounces of Marijuana, and the court ruled that there was not evidence to support the theory because he had alternative choices for pain relief during the 8 hours of travel through Idaho.
But now it’s being used against the citizens of Idaho, too.
This is what Judge Oths is using to deny me a defense. (Because apparently to him – 15 years of medical history, numerous written doctor recommendations, and the testimony of a very credible expert witness, are not considered “a reasonable view of the evidence”.)
And when the public defenders and inexperienced attorneys are denied the necessity defense for their client, they don’t appeal and instead convince them to plea out in order to avoid jail time.
This definitely needs to be challenged. And luckily, I’m in a place to challenge it.
Unfortunately, that means going forward with trial without a defense so that I have a judgement from which I can appeal. So, I will do my best to defend myself, while simultaneously being denied a defense.
After more then 2 years of observing the apparent joke that is our criminal legal system in Idaho, they’ve finally put the trial date on the calendar – Wednesday, March 7th, 2018. In just a few weeks, I will be denied my Constitutional right to due process, and will not be allowed to present my side of the facts or present my defense to a jury of my peers.
Instead, the Ada County Prosecutors – D. Garrett Swenson and Enrique Gutierrez – will parade dozens of police officers and drug experts into the court room in an attempt to make me look like a criminal and take me away from my children to lock me in cage; where I will suffer unimaginable physical pain when I am not allowed my medicine because of Idaho law.
All over the invocation of my rights to an Ada County Sheriff, .3 grams of marijuana, and my involvement in the civil disobedience protests that followed.
I could definitely use your support!
If you can make it to my trial, I would appreciate support in the audience.
March 7th, 2018
9am – Judge Michael Oths
Ada County Courthouse
200 West Front St.
Boise, Idaho 83702
Event page – https://www.facebook.com/events/186254292135900/
Defense Donations –
Appeals are costly, and if I win, I will need to fight the charges all over again, with an expert witness. I am in need of funds to help cover appellate court costs, witness travel costs, and witness fees.
If you can help, I really appreciate it!
Support Reform in Idaho –
Idaho is one of only 3 states in the nation that persecutes its citizens for all forms of Cannabis. There are numerous reform efforts happening in Idaho. We need all the help we can get!