Club Pot Med

Livid over the vague voter-enacted state law allowing use of medical marijuana, a crusading lawyer tries to untangle unintended consequences. The law has driven the supply system underground, pot patients are getting busted, and some cops, prosecutors, and judges just don't get it.

Jon Graves heard noise behind his house one evening last October. The house backed onto an alley in the University District, and he was always watchful. He went to the back of the house to investigate. A woman was banging on his bedroom window from the alley below.

Graves calls her a crackhead and crack dealer. He took a laser pointer and aimed it at a "No Trespassing" sign. The woman and Graves exchanged unpleasantries. "Take your crack dealing somewhere else," Graves said to her. She'd been a hassle for him before. "They were always out back of the framing shop doing their thing," Graves says.

At some point, Graves pointed to an unloaded Mossberg 12-gauge shotgun, hanging on a rack on his bedroom wall. Graves, about 5 feet 8 inches tall, stout, with a broken spine, was a firm believer in keeping neighborhood crackheads and street people from his property—and being capable of dealing with them should they break in. Once they learned what was inside his home, he'd be screwed.

Graves, you see, had a medical marijuana growing operation, associated with a religious group called Earth Family Ministries, in the basement of the house on 12th Avenue Northeast. Known as a "group grow," the garden had about 100 plants—worth maybe $200,000 on the street when fully grown, although many plants were far from mature. Graves was part of the subculture providing medical marijuana for patients in the Seattle area. In his case, Graves says, he and others grew the pot for at least 10 patients.

The crackhead called Seattle police. And so Graves' house became the site of the biggest medical marijuana bust in Seattle since medical marijuana was legalized in Washington in 1998.

If Graves' attorney, Douglas Hiatt, a crusader in a Cubs T-shirt and jeans, gets his way, a crackhead will help change state law. But back to the bust.

At 8:26 p.m., police arrived to investigate the alleged assault because the weapon was displayed. The cops caught the skunky odor of marijuana coming from the house—probable cause on the breeze. Graves, who'd been inside smoking against his back pain, came to the front porch to answer their query. The break in his spine is held together by interlocking C-clamps, and only a few hours go by when Graves isn't in acute pain, pain that multiple surgeries have not corrected.

One cop asked about a small tree in the front yard. A marijuana plant?

"It's a Japanese maple," Graves explained. Then he leveled with the cops: Inside the house was a pot grow for chronically ill patients. He told them, he says, that he wasn't the sole gardener, that others helped him grow the pot. Patients were working collectively to grow medical marijuana for one another—a group grow, as they are called, but nowhere near as in the open as they are in California.

Graves had run afoul of a gray area in Washington state's medical marijuana law, approved by voters. The law is silent on how patients incapable of growing for themselves are to gain access to medical marijuana.

The police entered Graves' home, the ministry, and seized about 100 marijuana plants in various stages of maturity. Seattle police also seized $1,730 in cash, money Graves said came from patients for the power bill. The cops clearly thought otherwise. They also took the shotgun and a Daisy air rifle in the sweep.

Then, police did something that could only happen in a city where police generally couldn't care less about pot. They permitted Graves to keep nine plants, as allowed under city of Seattle policy for medical marijuana patients; 2 pounds of dried marijuana; and several bongs and other smoking paraphernalia.

Graves says a sergeant on the scene told him that SPD was looking for a test case, in essence, to clarify the ill-defined medical marijuana law.

Soon after, Hiatt, a former public defender, got involved. He usually does. If there's a bust involving medical marijuana within state borders, Hiatt has his finger in the dike in some fashion, no matter how major or chippy the case, always working to get charges dropped by convincing cops and prosecutors that, yes, there is a medical marijuana law and his client abides by it. It's Hiatt's jihad in the drug war.

Is there a medical marijuana patient threatened with eviction from public housing? Hiatt pounds on the Seattle Housing Authority. A medical marijuana patient tests positive for pot on an employer-required piss test? Hiatt can negotiate that job back.

The mess that gets Hiatt out of bed each day exists because the state's medical marijuana law is so broadly worded that cops keep busting legitimate patients, that judges state that the law doesn't exist, and that newly diagnosed cancer patients, for example, are frequently left with no practical way to grow their own marijuana, as the law allows. They are a bit too sick, and it takes three to four months to go from seed to weed. That's a lot of vomiting in the meantime.

As a result, an underground of patient collectives has cropped up, intent on providing patients, new and old, with ready access to medicinal cannabis, as some call it.

Hiatt's crusade is to keep patients and growers out of the clutches of law enforcement and jail. He's a busy man, presently engaged in keeping Graves from going to the joint and juggling other cases as well. It's work he does pro bono, the bill covered by a grant. Recently, a medical marijuana patient he'd gotten out of a legal jam gave Hiatt a 300-pound hog. Hiatt is a Chicago native and wore a Stan Mikita helmet playing hockey as a kid. He welcomed the pork.

"I felt like Atticus Finch," he says, laughing his ass off. The reference is to a classic legal-hero archetype, paid with chickens in To Kill a Mockingbird.

To listen to Hiatt talk about the realities around medical marijuana laws— who gets busted and who goes to jail— is fascinating. It is also a bit like opening a fire hydrant on a hot day.

"Does our law allow for co-ops, for group grows? Can you have a cooperative grow? I'm arguing that our law is big enough to allow patients to band together to grow together. To the federal government, it's all illegal. If patients are growing in groups, then it's a big fucking conspiracy. The U.S. attorney here [John McKay] hasn't pushed much on medical marijuana, but the DEA [Drug Enforcement Administration] is crazy on the subject."

In 1998, Washington voters approved a medical marijuana law. It allows sick people with certain conditions—cancer, AIDS/HIV, Crohn's disease, chronic pain, and a few other conditions—to legally smoke, possess, and grow a 60-day supply of pot for their own consumption, after their doctor "recommends" it. Or they can appoint a caregiver, a close friend, or a relative to grow the weed for them.

Hiatt has been working to plug the holes in that law for eight years.

After finishing his teen years in Atlanta, he went to George Mason University in Virginia and, after graduation, did political consulting in Washington, D.C. Later, he worked on Democratic election campaigns in Georgia, such as one against Newt Gingrich.

Hiatt, 47, stands about 6 feet tall and has graying hair pulled back in a short ponytail. His regular noncourt uniform consists of jeans, black tasseled loafers, and the Cubs T-shirt, untucked.

By the mid-1980s, he was married with two young daughters. He was also done with political work. In 1988, he packed the family into a car and drove across the country to attend law school at the University of Puget Sound. (This law school later moved to Seattle University.)

In the mid-1990s, Hiatt was a public defender in Skagit County, working on behalf of everyone from misdemeanants to alleged murderers. He was assigned to handle the case of a nurse who, stricken with rheumatoid arthritis, had taken it upon herself to seek relief by growing marijuana outside her home in Rockport. This was before self-medicating with pot was legal in this state. The nurse, Beverly Prouty, ran afoul of the law.

It was in the air in liberal circles in those days that marijuana helped AIDS and cancer patients in ways that conventional medicines could not, despite a dearth of studies on the matter. And here was Exhibit A. Hiatt sensed Prouty was getting actual medical value from the drug that the federal government still insists causes reefer madness.

Hiatt, then, re-examined his own attitude toward pot. He'd smoked some in college, yeah, but he'd had little more than a joint at cocktail parties since finishing law school. He had a wife and kids and a house in Ballard. Prouty eventually pleaded guilty to a misdemeanor. "That totally changed my life," Hiatt says now. "People who are sick and dying, being hassled for taking medicine—that's fucked up, bro."

A year or so later, he took up the case, pro bono, of an AIDS patient in Seattle who'd been popped for reefer. This is when Hiatt got religion. In those years, gay people were dying left and right from AIDS, and it was among those patients that Hiatt did his first work. Once, an AIDS patient went to the emergency room at Swedish Medical Center, covered with the skin lesions that AIDS can cause. A young doctor, upon learning that the man claimed to be a medical marijuana patient, right there in the ER diagnosed the man as a street drug user, and he was shuffled off to a waiting area. Hiatt got the call.

"I spent eight hours at Swedish fucking fighting to get that guy treated," he says. "I've watched doctors fuck with medical marijuana patients for years, and it is fucking bullshit. These people aren't dopers. These are sick people. The only crime is how they are treated."

In dribs and drabs, medical marijuana patients are still being busted in this state, especially in Thurston County and in Eastern Washington, where some cops, prosecutors, and judges see the medical marijuana law as nonexistent.

On a recent day, Hiatt held forth on the state of the law. He was driving his Toyota minivan—an anti-probable-cause model, as he calls it—on his way to see another patient who was in a dicey spot with Johnny Law.

"What pisses me off is the lack of respect for democracy," he says between cell phone calls. "Voters wanted sick patients to get relief. This is not what voters wanted. Look at Judge Baker."

Rebecca Baker is a Superior Court judge in Stevens County. In May, she accepted a plea deal from a man with chronic pain who, without the legally required doctor's recommendation, had begun growing and using pot. He was busted. Prosecutors recommended no jail time, since he faced an upcoming surgery. Community service in exchange for pleading guilty to manufacturing marijuana.

The judge gave him 10 days in the county jail anyhow, and a lecture.

"This medical marijuana defense is a very—it's almost a sham for people," said Baker, in an assessment at odds with state law.

"This is the kind of shit we put up with," says Hiatt. "How does the lady who's 70 years old get access to medical marijuana? The law doesn't work. If someone offered my client a deal like that, I'd say, 'Fuck you, motherfucker, this is not necessary.' In other words, you convict my client, and we'll see you in an appeals court."

In a recent Thurston County case, a medical marijuana patient with HIV was popped for possessing drugs. The prosecutor wanted the patient, Jessica Colpitt, to do eight years, owing to a school-zone enhancement. A jury found her not guilty of a felony. The jury did find her guilty of a misdemeanor. Colpitt's attorneys asked the judge to let the woman remain free while her case was appealed. Judges commonly grant such petitions for nonviolent offenders.

From the bench, the judge, Chris Wickham, said he wanted the woman to begin serving her sentence right away because she could die while the case was on appeal, according to lawyers in the case. The Colpitt case is currently being appealed to the Washington State Court of Appeals.

During another case, Hiatt was speaking with a deputy prosecuting attorney in the Thurston County prosecutor's office. Hiatt was pissed that the prosecution was throwing the book at a sick woman. The conversation became heated.

"Why don't you look at your calendar, find an afternoon when you are free, and go fuck yourself," Hiatt told the prosecutor. Hiatt was forcibly removed from the office.

Obviously, the way the law is applied in such cases makes Hiatt boil.

"The law is supposed to be remedial," Hiatt says. "It's supposed to fix something. It is not supposed to be interpreted by the courts so as to become a nullity. But that's not what's going on."

Somewhere in the Seattle metropolitan area is a small house on a street of other small houses. The front porches are squared to the same line, and the front steps are all close to the street. One of these modest homes has a basement, and if you are admitted through three padlocks attached to two sets of doors, you step into a series of small rooms, and you see where medical marijuana comes from.

The first room is what's known as the "veg room." The concrete walls are painted latex white and reflect intense overhead lights. This is the room where marijuana plants are nurtured from seedling to about 18 inches tall. There are approximately 40 such plants in this room. They are rooted in black plastic planters, all at least two months from being fully budded marijuana—or medicine, in patient parlance.

Smoking them at this stage would be about as useful as lighting up corn husks.

When they reach a certain age, these plants are transferred to the "bloom room." They go into larger planters, plastic paint buckets really, and are fed water and organic fertilizer. The gardener, who asked to remain anonymous, says he's proud that he and his fellow gardeners, medical marijuana patients all, are 100 percent organic.

The temperature in the room runs at 80-plus degrees, the result of three overhead 1,000-watt halide lights driven by small motors on tracks affixed to the ceiling. The idea is to re-create a partly cloudy day in an outdoor garden. There are 20 plants, each of which will yield perhaps 4 ounces of finished product—in all, about a 60-day supply for maybe 10 patients.

The plants look pretty and, aside from their distinctive leaves, could pass for a tomato plant or any number of vines. There are hundreds of strains of the Cannabis sativa plant, the result of decades of hybridization. A few strains of plants are grown in this room. Through trial and error, as the gardener explains it, medical-marijuana-patients-cum-growers have hit on strains they consider best for addressing certain ailments. Black Jack is good for chronic pain and helps people afflicted with Crohn's disease, or bone and nerve pain. Other strains are legendary for assisting cancer patients and AIDS/HIV patients to stave off, however momentarily, the nausea that often accompanies their treatments. Conventional antinausea drugs fail to address their inability to eat or drink.

There are two subtypes of marijuana: sativa and indica. Both are represented in this room, but only those of the female gender. Male plants don't flower. The sativa plants are tall, narrow, and lime green in color, with leaves that fan out at the top. Indica plants are shorter, by comparison, dense, and bushy, their vegetation an olive green.

Most of the plants in the room have only begun to puff out small buds. Perhaps five plants are nearing the end of their life cycle, which is three months or so. Their buds are the size of a small grape cluster. Tasty looking.

Two strong fans run constantly, creating a dense, sweet, skunky breeze. Marijuana plants wave back and forth. Stale, recycled air is bad for growing plants of any species.

The gardener says that utilities for the grow run about $1,000 a month, covered by contributions from patients.

An exhaust system removes air from the room and vents it outdoors after passing the air through a thick filter wrapped around an aluminum pipe. Many an indoor grow, medicinal or otherwise, has been taken down by neighbors calling cops after nosing the scent of growing marijuana issuing from a bloom room.

The filter removes 99 percent of the odor, the gardener says. Outdoors, near the vent, you'd never suspect anything.

Unlike California, where patients can walk right into a buyers club and get their RDA of THC, growing and distribution are very much on the hush-hush in Washington.

Delivery is how distribution is handled, says the gardener.

"Look, if your grandmother gets breast cancer tomorrow, she's not going to rush out and learn how to grow marijuana and all of a sudden have a 60-day supply of medical marijuana," says Hiatt. He's sitting in his donated office, the floor of which is covered with piles of legal briefs and transcripts. A poster of Che Guevara is on the wall next to a poster of President Nixon, a bull's-eye across his face.

"She's got to start chemo next week. She's sick, and she needs medicine right fucking now. Do we want her or her caregiver out on the street buying pot for her? Would they even know where to go? No."

Hiatt knows this firsthand. In 2001, his mother, Betty, was diagnosed with breast cancer and underwent a double mastectomy, along with chemotherapy.

"She couldn't eat and barely sipped water," says Hiatt. "She was throwing up $200 nausea pills and was down to like 80 pounds." His mother had never smoked pot before, but after giving it a go she found it to be the only solution for her nausea. She put on weight and went into remission.

"You just don't know how sticky your hands get until you've rolled 20 joints for your mother," he says.

But the cancer returned. Last year, Betty Hiatt was profiled by the Los Angeles Times. Soon after, she died.

The next month, Hiatt gave a passionate speech at Seattle Hempfest, denouncing the federal government for denying that marijuana has medicinal properties and for putting patients in jail, as the feds have done in California. Federal laws and state laws conflict dramatically on the use and possession of marijuana. What he didn't mention was how internally conflicted the Washington law is.

There are between 10,000 and 20,000 medical marijuana patients in Washington, depending on who does the estimating. Hiatt's estimate runs to 20,000, at least 5,000 of them in King County.

The law isn't specific about what constitutes a 60-day supply of marijuana. Is it a few joints? Or a pound of B.C. Bud? How many plants does that work out to?

That depends on how patients describe the situation. Depends on how sick they are. Depends on whether they smoke marijuana or cook with it (cooking requires more).

"The idea is to stay saturated," says Jon Graves, whose grow was busted in the University District. He says he smokes or cooks with about one-eighth of an ounce each day, give or take. He prefers joints (many patients who smoke do), but some opt for a bong or vaporizer. Graves also cooks with marijuana and makes butter with some of the ordinarily useless "fan leaves" of the plant.

Graves injured his back at a rubber factory in Elkhorn, Wis., in 1992. Following surgery, he was on as many as four large Vicodins a day with some Percocet on the side—powerful opiate painkillers. Soon, he became hooked and had to take them every day, even when his back wasn't hurting so much. He switched to medical marijuana because he couldn't tolerate being a zombie on opiates. How does he compare the two?

"Look, I'm still walking," he says. This is on a good day—he is standing there wearing a B.B. King T-shirt and jean shorts. A week later, the Army veteran could hardly move from his chair. Hiatt went to the kitchen and washed Graves' dishes.

Around the state, neighbors tattle on neighbors smoking pot. Still.

At times, the police rush in and seize all the pot and cash in the house. Patients have little defense at times like these: The authorized "recommendation" form (a quasi-prescription) that many carry means little to many cops.

Last week, prosecutors in Lewis County filed charges for growing pot and possessing paraphernalia against the mother of a Chehalis teen, a medical marijuana patient with a doctor's recommendation—in this case, from a University of Washington clinical professor. Her son has severe brain trauma and physical pain from an accident and spends his days in a wheelchair. His mother is his appointed caregiver, and she had a few plants in a backyard shed. Sheriff's deputies raided the small grow.

"You see?" says Hiatt, who plans to take on the prosecutors and the cops in Lewis County. "The law doesn't work. It's the kind of shit that just torques me."

Unlike Oregon and California, Washington has no recognized identification system so that patients can prove to law enforcers that they are on the up-and-up. When Washington patients show you their doctor's recommendations, the documents often are creased and worn—a condition guaranteed to raise eyebrows.

That's something state Sen. Jeanne Kohl-Welles, D–Queen Anne, has tried to address through legislation for as long as there has been a medical marijuana law in the state. She says she plans to do so again come January.

What Hiatt and others would like to see is for the Legislature to make group grows, or patient cooperatives, legal under the law. That would push Washington's medical marijuana system much closer to the California standard.

In the Golden State, medical marijuana patients with $55 can score an eighth of an ounce from a dispensary and walk out with a prescription bottle filled with pot. Graves showed off one of those bottles from the Gold Star Pharmacy, which had once contained a strain called "Romulan" and had a bar code on the side.

Such openly available weed has spurred federal law enforcement to go after dispensaries in California the way they went after moonshine operations in the 1920s. In San Diego, federal and local authorities recently shut down several dispensaries.

"Marijuana is not medicine," says Special Agent Steve Robertson, a DEA spokesperson in Washington, D.C. "Drugs are bad. Don't do drugs."

Counters Greg Carter, a clinical professor of rehabilitative medicine at the University of Washington School of Medicine: "The DEA, the FDA, and the drug czar—they pretty much pull stuff out of their ass and present it like it's fact, and proven fact at that, and that's not going to fly anymore." The Chehalis teen is his patient. "The evidence is there and the science is there" to establish that medical marijuana is effective medicine.

"I think we know a lot more about the science behind how the substances in marijuana work," says Eric Larson, director of Group Health Cooperative's Center for Health Studies. Larson was a co-author of the 1999 Institute of Medicine study on medical marijuana, which found that the drug had some medicinal value for some patients.

Hiatt says that the worst case in the Graves case is that it ends up in the hands of the feds. But in Washington state, the feds have a significantly more relaxed attitude than their D.C. brethren. Jeff Sullivan, chief of the criminal division of the Western Washington U.S. attorney's office, says that not one federal case has been brought against a medical marijuana operation since the law's passage. "With limited resources, we are looking at large-scale trafficking and not medical marijuana," Sullivan says.

Hiatt and Graves' problems could, instead, be more home-grown, and that's eating Hiatt up. His client's destiny is in the hands of Seattle police and the King County Prosecuting Attorney's Office.

The Graves case currently sits on the desk of Erin Becker. She's chair of the drug unit at King County Prosecuting Attorney Norm Maleng's office. It was forwarded to prosecutors almost 10 months ago.

"I think SPD and other agencies recognize that this is a law the people have chosen, and we want to be careful and look at each case on an individual basis," says Becker. She says she is close to reaching a decision on whether to bring charges against Graves. If charges are brought, it will be the first against a group grow in King County, Becker says.

"It's very clear" that state law doesn't allow for group grows such as the one Graves' Earth Family Ministries had in the University District, she says. "You can't grow for 10 patients."

But she says she has to balance that against whether there were obvious signs of a commercial operation on 12th Avenue Northeast. Like neighbors seeing visitors at all hours. Like detailed financial bookkeeping. Like 1-inch by 1-inch dime baggies in the living room, say.

"The amount of marijuana enforcement we are doing is very low," says Capt. Steve Brown, head of SPD's narcotics unit. He points to the local 2003 Initiative 75, passed by voters, which makes marijuana SPD's lowest enforcement priority, as well as to the general depolicing of pot in the city over the last decade.

"We are staying pretty busy with street-level dealing activity," says Brown—mostly crack, meth, and heroin. "If we've got a legitimate patient, we are not going to spend our time on that."

Both Becker and Brown agree that state law is vague on the question of group grows and ought to be clarified. "That would help hugely," says Becker.

Even the state attorney general's office agrees that the law is flawed, especially on the question of group grows.

"I can't give you a 'yes it's legal, no they are illegal' kind of answer," says Scott Marlow, an assistant attorney general in the criminal justice division. "The law's too vague and can be applied a few different ways." He favors some kind of legislative fix.

"Everyone just wants something we can use," he says.

Meanwhile, Hiatt is back in the minivan, shooting north on Highway 99 to see another patient in a pickle. But there's more news on the cell phone, about an employee at the Evergreen State College, shitcanned after revealing his status as a medical marijuana patient. He was, according to Hiatt, fired for being under the influence.

"Messy and ugly and a disaster?" Hiatt says to the attorney on the other end of the line. "Of course, it's my kind of case. It's the kind of thing I get all the time."

Hiatt's taxable income in 2005 was $26,700 in grant money, less income than when he was a public defender. The grant comes from the Marijuana Policy Project, a Washington, D.C.–based reform group principally funded by Progressive Insurance founder Peter Lewis. Hiatt sometimes supplements that with standard criminal-defense work. He's clearly made some money—he owns six guitars, including two Giffins, custom-built six-strings, and rents a home with his girlfriend in Green Lake.

But eight years after medical marijuana became legal in Washington, weed is still a touchy issue in medical circles. Officials at the Fred Hutchinson Cancer Research Center wouldn't make doctors available for an interview. And it took a week of badgering before the University of Washington Medical Center and the UW-run Harborview Medical Center would discuss policies on medical marijuana.

Scott Barnhart, medical director of Harborview, says that medical marijuana hardly ever comes up as an issue on Pill Hill and that it's rarely recommended by physicians.

"You're kidding?" says Hiatt. "Has he ever seen the Madison Clinic?" That's a Harborview-run AIDS clinic. "There are tons of patients there, and most of them use marijuana."

By his own estimate, Hiatt reckons he's worked as many as 100 medical marijuana cases in the past three years, often negotiating with prosecutors to get charges dropped against chronically ill patients.

"I don't know how many people I've represented who are now dead," he says, referring to many AIDS patients. "You sure don't choose work like this. It chooses you. Things are screwed up. It's Chinatown."

pdawdy@seattleweekly.com

 
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