There is a lot going on with this kafkaesque case in NJ, thus the detailed blog here today. - Chris
A Civil Right to Marijuana: The John Ray Wilson Case
8/6/2009 by Chris Goldstein
Our nation has pioneered humanitarian reform in the modern industrial world. African-American Civil Rights, Women’s Suffrage, GLBT Equality, Labor Fairness, Hispanic and Latino Equality even Environmental Rights to ecosystems and animals are works-in-progress that, although incomplete, are still the resounding achievements of Americans. Yet there remains an area where the personal choices of at least 25 million of us (the true number could be well over 70 million) allows carte blanche to individuals and state entities to physically, emotionally, mentally, legally and socially abuse our own citizens.
Marijuana law reform is something I work on as an issue of Civil Rights and Social Justice. In the new millennium Americans who choose to consume marijuana face outright discrimination for simply interacting with a non-toxic plant. Our current atmosphere of federal prohibition has done nothing but allow tens of millions of Americans to be arrested and put in jail for a personal and nearly harmless decision.
This state sanctioned bias becomes even worse within the issue of medical marijuana, where citizens face stark and visible oppression on a daily basis. It is here that personal use of cannabis is defined only by the potential benefits.
Many of the 827,000 Americans arrested last year used cannabis for self-treatment. Our fellow upstanding, hard-working members of society use cannabis because other therapies have failed to relive their symptoms and pain or they simply cannot afford the regimens of pharmaceuticals that their doctors recommend.
A recent case in New Jersey has highlighted every aspect of the legal discrimination one could face in a state that has not yet passed a local set of cannabis access regulations for medicinal use by patients under a doctor’s supervision.
This week I spoke on the phone with a family struggling under this oppression of prohibition policy. They are dealing with national issues that make headlines every day: Healthcare and Criminal Justice and last week the nation took notice of their case.
I first met the father as he pleaded for help: His son is suffering and the family cannot pay for the standard medications prescribed to treat a serious medical condition. The son is now being denied access to an affordable and effective treatment that hundreds of thousands of Americans utilize every day. Without medication and now facing serious prison time the family recounted the nightmarish scenario that began one year ago.
In August 2008 a New Jersey National Guard Helicopter on a training-flight beat at the hot humid air. Skimming low over the suburban houses of Franklin Township, the swirling rotors were about to whip up a wicked legal storm for 36-year-old John Ray Wilson.
Living with MS and surviving without healthcare, John had been using marijuana to treat his condition. The seventeen cannabis plants spotted by the helicopter pilot growing behind his house were his first attempt to cultivate his medicine. The plants were a desperate act for Wilson who could no longer afford marijuana in the underground market.
There is a mountain of scientific evidence to support John’s choice in therapy. Ken Wolski, a registered nurse and executive director of the Coalition for Medical Marijuana New Jersey writes, “The National MS Society confirmed in an Expert Opinion Paper* that standard therapies often provide inadequate relief for the symptoms of MS such as pain or spasticity and that marijuana helps with these symptoms. The paper even points out that cannabis could limit disease progression, ” Wolski said.
Today there is a pharmaceutical made from natural cannabis extracts of THC, CBD and other cannabinoids that is administered as an under-the-tongue spray. In Europe, the UK and Canada this marijuana-based medication created by GW Pharmaceuticals called Sativex is prescribed specifically for MS.
CMMNJ’s Ken Wolski: “Relief of the immediate suffering of MS and actually arresting the progression of this incurable disease is a compelling reason for patients to use it therapeutically.”
According to the MS Society an estimated 15% of people with the disease already use marijuana for symptom relief. Well known media personality Montel William travelled to Trenton in 2006 and testified before a NJ legislative committee, tearfully describing his on experience using marijuana to treat MS. After seeing Montel speak so passionately about therapeutic cannabis in his own state, John Wilson decided to give marijuana a try. It provided relief for him too.
Wolski and the volunteers at CMMNJ, including myself, are working with many motivated advocates across the state to help raise awareness and pass the current NJ medical marijuana legislation, S119/A804, The Compassionate Use Medical Marijuana Act. The bill is almost a law after seeing significant momentum in 2009. After getting through two legislative committees and floor vote in the state Senate this year, the final step could be the Assembly floor vote coming up in the fall. Governor John Corzine has said repeatedly that he will sign the bill and NJ Attorney General Anne Milgram has called the proposed medical cannabis program “workable.”
If S119/A804were already law, John Wilson would have a medical necessity defense in regards to marijuana. He might not have attempted to grow at home as he would have had safe, easy access to quality, cost effective medicine. John would have been easily approved into the program and would be living a better life, slowing the progression of his disease with cannabis. But the New Jersey legislature has dragged out the medical marijuana debate over he last 5 years. Right now John lives without any marijuana and in fear of his future as he faces up to 20 years in prison.
One of the reasons the NJ medical marijuana bill has seen such forward progress this year has been the courage of individuals who would directly benefit from the cannabis program stepping forward. Some have appeared in the media, others have testified before the legislature. Charles Kwiatkowski of Hazlet lives with MS and it was his testimony that had a particular impact on the state senators. I called Chuck and asked him to comment on John’s case.
“I too live with the chronic illness MS. For the past 12 years I have grown tired of telling my 3 daughters that we cannot go to the park, beach, boardwalk, etc because of my jerking, painful spasms from multiple sclerosis. If I use a small amount of medical marijuana, less than 1 gram between 5-6 AM daily, I am completely able to do just about anything my daughters want to do for the next 12 hours. Whereas, if I only rely on physicians prescribed pharmaceutical drugs such as OxyContin, Percocets, Baclofen, Neurotin, Elavil I then am stuck in bed or on the couch from nausea and dizziness.”
“Medical Marijuana is the only medicine that truly works to help my family remain active.”
This was the experience John was looking for, not to get high but to lead an active life with less pain.
That sweltering day in 2008 when the helicopter pilot notified the New Jersey State Police they sent a specialized team, the Marijuana Eradication Unit. The cannabis plants were photographed and described in painstaking detail by the well-paid police staff, whose job is to evaluate pot. Their report reads like the latest issue of High Times Magazine with nuanced descriptions and photos of the living marijuana.
Then they searched the house, turning up some empty baggies and a single fragment of a hallucinogenic mushroom. Now John faces the following charges:
- First-degree maintaining or operating a drug-production facility
- Second-degree manufacturing
- Third-degree drug possession
If convicted on all charges John faces up to 20 years in prison. Serving the full term would amount to a death sentence for an MS patient his age.
Frederic DiMaria Jr., a criminal defense attorney and Chair of NORML-NJ, a non-profit marijuana reform group I work with, has become an expert in defending local consumers who run afoul of prohibition policy. I asked him to comment on the Wilson trial: “I have witnessed and represented many in Mr. Wilson’s exact position. Once a medical marijuana patient is arrested and thrust into the New Jersey criminal justice system, that patient can rest assured that he/she will be totally stripped of all access to medical marijuana by the Court, who will force that patient to ultimately chose between giving up their medicine or going to jail for an extended term,” DiMaria said.
The most serious charge against Wilson is First-degree maintaining or operating a drug-production facility. This offense was originally intended for cocaine or heroin enforcement and had marijuana added later to the description.
Wilson’s defense attorney, James Wronko described the statute to me via phone: “As initially enacted this offense did not apply to marijuana. The statute was later amended in 1997 to include facilities dealing with large amounts of marijuana. For an unknown reason, the legislature then concluded that 10 or more plants could constitute the ‘large amount of marijuana.’ At the same time, the legislature determined that one who manufactured or grew marijuana in quantity of 10-49 plants would be guilty of a second degree and 50 or more plants would constitute a first degree charge.”
Seventeen plants would seem to put John into the category of a second-degree offense. But here comes the real stinger, as Wronko explains,” The Attorney General’s Office has argued and the trial court has agreed, that a person who grows marijuana on two or more days is guilty of the first degree offense of “Maintaining a Narcotic Production Facility.’”
To the layperson it is obvious that marijuana plants will take longer than one or two days to grow. Thus, as is the case with Wilson, the state of NJ has the option to use the very serious first-degree offense in nearly any case where prohibition enforcement involves marijuana cultivation. Use of this statute to this extreme is largely at the prosecutor’s discretion.
Because it was the State Police Marijuana Eradication Unit who processed the plants it is not the local county District Attorney who is arguing the case, but the more powerful State Attorney General’s Office. The prosecution is being led by Deputy Attorney General Russell Curley, who has successfully attempted to circumvent any argument that the plants were grown for John’ personal, medical use. Ironically, Curley’s own office issued recommendations to enact the New Jersey Compassionate Use Medical Marijuana Act just weeks after Curley filed his initial briefs trying to keep John’s MS from the jury. It may be the deep understanding of the proposed law on the part of the Attorney General’s Office that has allowed them to mount such an aggressive prosecution of John Wilson.
It was the decision made by the Superior Court Judge Robert Reed at a pre-trial hearing last week that made national news. Again, Wilson’s defense attorney James Wronko: “The Trial Court has ruled that Mr. Wilson cannot argue that he grew the marijuana of medical purposes. Moreover, he cannot even mention to the jury that he suffers from multiple sclerosis at all.”
Such a ruling made national news and for good reason.
In California and other states where MS patients already enjoy legal access to cannabis there was outrage. Here in New Jersey, it was a wake up call among the reform community and to the general public. Many here were already aware that it was the brave fight of a dying MS patient Cheryl Miller that served as the catalyst for the local effort. News surrounding the NJ medical marijuana bill’s progress has highlighted sick and dying residents who plead for safe access yet DAG Curley argued in court that if the jury knew about John’s MS then it would garner him undue sympathy.
Aware of the legislation, Judge Reed wrote in last week’s ruling “If medical marijuana use is to be recognized as an exemption to our criminal law, the legislative process must produce that result. This court will not do so.”
The Attorney General’s Office has played expertly to that end. On one hand issuing recommendations to refine the medical marijuana bill and on the other hand using the active legislation against John’s defense.
But keeping John’s condition from the jury may create problems of its own.
Criminal Defense Attorney Frederic DiMaria Jr.: “Many juries are angry when they subsequently learn they convicted a sick patient for using helpful medicine. While there are legitimate legal reasons for such seemingly compassionless Court mandates (which are based upon the premises that our federal government still stubbornly refuses to recognize marijuana’s proven medical promise) the judicial system is obviously malfunctioning and totally devoid of common sense or compassion in the area of medical marijuana. Hopefully, Mr. Wilson’s case will finally publically illustrate the critical need for a medical marijuana law in New Jersey for sick and dying patients. ”
The current legal and physical reality for John is not pretty.
Frederic DiMaria Jr.: “Since the Court ties the hands of medical marijuana patients tightly by refusing to allow them to tell juries the entire truth, there are not typically many options for those arrested, other than to give up their medicine and suffer both the effects of their un-medicated illnesses and the wrath of an angry criminal justice system simultaneously.”
When I spoke to John along with his mother and father last week they did not expect at any time for the charges to be dropped or to win a full acquittal just because of his illness. But even the threat of 20 years for 17 plants is out of place in modern America when thirteen of our United States operate active medical cannabis programs.
One of the most compelling reasons why the New Jersey legislature needs to pass the Compassionate Use Medical Marijuana Act is that this kind of treatment of NJ residents who use therapeutic cannabis is the status quo.
Di Maria “Sadly, I am not at all surprised by the developments in State v. John Ray Wilson, the multiple sclerosis sufferer who is currently on trial for growing medical marijuana for his own personal treatment. While the story shocks the conscience of the average public, truth-be-told, and contrary to popular public belief, the New Jersey criminal court system does not currently allow patients to bring medical necessity defenses for using marijuana. As a criminal trial attorney and a marijuana reform advocate, I can assure you that the plight of Mr. Wilson, while very sad, is identical to countless other New Jersey medical marijuana patients who, every single day, get foisted into the same criminal justice system for doing nothing other than taking marijuana medically to alleviate profound suffering. It is commonplace for Judges, prosecutors and local police to fully (and irrationally) prosecute medical marijuana patients with no regard to their medical needs or the level of their pain and suffering.”
John had already gone to extremes to treat his MS even utilizing bee-sting therapy, where he allowed live bees to sting him in order to relieve pain and spasticity. Now he may end up in prison. A years-long term in state prison is a therapy that no one recommends to treat MS.
Ken Wolski of the CMMNJ pleaded with the Attorney General’s Office in a letter last November: “I don’t know if you ever saw a patient suffer and die from MS, but I have in my 32 years as a registered nurse (RN). It’s not a pretty sight. This matter cries out for the exercise of compassion. It is not a matter of criminal prosecution but of patient persecution. John is not a gang member inflicting pain on innocent residents, a street thug or a white-collar criminal defrauding thousands of people of their savings. You well know we have ample real criminals in this State. Does this State wish to spend precious limited resources on prosecuting patients?”
“Are there not a multitude of better uses for your staff time and budget to benefit the people of New Jersey than inflicting greater suffering on John Wilson? Would the State not be better served if all prosecutors stopped wasting public resources prosecuting patients? Moreover, is it even justice to prosecute people like John Wilson for trying to ease their pain from a horrible disease, especially when such treatment causes no harm to any innocent persons? The “crime” in patient cases is a technical statutory violation that our legislature is working on changing. Prosecuting patients is not being tough on crime; it is being heartless on patients.”
Thus in New Jersey John Ray Wilson and many others face the same choice in healthcare: Medicine or Jail.
It is for his personal choice to use an effective and scientifically proven therapy that has brought the tremendous resources of the state criminal justice system down upon him. If this is not oppression, discrimination and a blatant violation of human rights then what is?
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The Coalition for Medical Marijuana will be holding a rally in support of John at the Somerset County Courthouse on August 21st. CMMNJ has also posted a link on their website so those interested in the case can make a PayPal donation directly to the Wilson family to aid in his legal defense.
More information about the New Jersey legislation, medical marijuana and John Ray Wilson can be found at www.cmmnj.org
*NOTES:
“Recommendations Regarding the Use of Cannabis in Multiple Sclerosis,” Expert Opinion Paper, National Clinical Advisory Board of the National Multiple Sclerosis Society, 2008.
http://www.nationalmssociety.org/about-multiple-sclerosis/treatments/complementary–alternative-medicine/marijuana/download.aspx?id=1023
** Randall, R.C., Ed., Marijuana, Medicine & the Law Volume II, Washington, D.C.: Galen Press, 1989, pp. 440-445. See also: “Multiple Sclerosis and Medical Cannabis,” Americans for Safe Access, 2008. http://www.safeaccessnow.org/article.php?id=4558
“Emerging Clinical Applications for Cannabis & Cannabinoids, A Review of the Recent Scientific Literature, 2000 — 2008,” Paul Armentano, 2008. http://www.norml.org//index.cfm?Group_ID=7121
