Medical-marijuana user taken on a bad trip by legal system
By David Harsanyi
Denver Post Staff Columnist
Article Last Updated: 03/29/2007 01:28:05 AM MDT

Sometimes there’s a fine line between consent and coercion.

Jack Branson learned that lesson the hard way in October 2004 when officers from the North Metro Drug Task Force knocked on his door.

Would Branson give consent to these officers to conduct a warrantless search of his home in Thornton?

Well, of course he would consent - especially after, as Branson tells it, the dozen or so armed cops explained, in detail, the needless tragedies that would befall his home if they were forced to go through the trouble of returning with a warrant.

In they went.

The police, naturally, knew exactly what they were looking for and quickly seized about a dozen marijuana plants Branson was growing in the backyard.

Charged with felony cultivation and possession with intent to distribute, the 38-year-old Branson, who is in a 20-year fight with HIV, is now facing a maximum six years in prison.

Branson, who had no previous criminal record, claims that a physician named Dr. Cynthia Firnhaber verbally recommended medical marijuana to him in 2002 to help ease his pain.

“That or pick out a hospice which you’d like to die in,” Branson alleges the doctor told him.

Firnhaber, who was then at the University of Colorado at Denver and Health Sciences Center, refused to put the marijuana recommendation in writing, according to Branson’s lawyers, because CU is a federally funded institution and she would be in danger of losing her job.

Branson has since obtained the proper medical marijuana paperwork from a doctor - proving only that his need for medical marijuana was not fabricated.

“Physically it helps with the nausea and my appetite,” Branson explains. “It’s the only way I can keep food down and my medications. Plus, I’m able to focus a little better. Rather than being so anxious and depressed about my prognosis, I think about what I need to do to try and survive rather than always feel the anxiety of dying.”

The main problem for the defense will be Firnhaber. She now teaches in South Africa at the University of Witwatersrand, where she’s a specialist in fighting AIDS. Securing her live testimony in court could prove difficult. Written testimony won’t do. And even if they can get her on the phone, a judge would have to allow it.

Yet, the most difficult aspect to understand is why this case is going to trial next week in the first place.

Colorado voters passed Amendment 20 in 2000, allowing doctors to recommend marijuana to patients with debilitating diseases - just like Branson’s.

Pleading down the case might have been possible for Branson, were it not for two factors:

The first is principle. Branson doesn’t believe he did anything wrong. The second is self-preservation. Any drug conviction could mean Branson might lose his Medicaid or Social Security benefits.

As Branson is too weak to hold down a job, he needs the assistance to survive.

“I don’t want to die in jail,” Branson tells me. “Actually, I wanted to see if there was some way I could have a sentence of lethal injection if I was found guilty. … If I need to take it into my own hands, I will do so.”

Pretrial drama? Who knows? But it is clear that a peaceful man using marijuana for medicinal purposes, just as voters had intended in 2000, may now die in prison.

Of course, however tragic our situations, we can’t pick and choose which laws to follow. And Branson did not have the proper paperwork.

But district attorneys (and the one in Adams did not return my call) do pick and choose whom they prosecute - by prioritizing and weighing the importance of each case.

At the very worst, Branson was engaged in a victimless crime. This isn’t a burnout deadhead with a debilitating case of bad vibes looking for a legal toke.

Does Branson deserve jail for this crime? Do the taxpayers of Adams County deserve to pay for this prosecution?

I’m not sure any reasonable person would say yes.

David Harsanyi’s column appears Monday and Thursday. Reach him at 303-954-1255 or dharsanyi@denverpost.com.

March 22, 2007

Today, Robert J. Corry, Jr. requested under the Colorado Open Records Act, C.R.S. § 24-72-201 et seq., access to any and all “writings,” as defined by C.R.S. § 24-72-202(8), and “public records,” as defined by C.R.S. § 24-72-202(6)(a)(I), relating to the Colorado Department of Public Health and Environment’s policy of prohibiting a medical marijuana patient from designating a particular individual as his or her caregiver if that particular caregiver has already been designated as such by five other medical marijuana patients.

Corry’s request includes, but is not limited to, any and all scientific studies, legal analyses, internal memoranda, draft and other documents reflecting the reason or rationale behind the Department’s limitation of five patients per caregiver. The limitation appears to be wholly arbitrary and has no justification in science, medicine, or the Colorado Constitution Article XVIII § 14 governing medical marijuana, or any other statute, regulation, or law. In fact, the policy, which appears to be enforced informally and is not codified in Department regulations, violates the state constitution and has the practical effect of denying many patients the medicine that they need, because many patients cannot obtain medical marijuana without a caregiver, and the universe of individuals with the knowledge, expertise, time, and inclination to serve as caregivers and provide medical marijuana to patients is limited. In voting in favor of Amendment 20 in 2000, Colorado voters intended that patients have access to the medical marijuana they need, as evidenced by the state constitutional provision enacted by voters, which contains no limit on a patient’s constitutional right to designate any person over the age of eighteen as caregiver, other than the patient or the patient’s physician.

Corry hopes to receive the documents shortly and would share them with any interested person upon request. Hopefully, “sunshine will be the best disinfectant,” and this arbitrary policy can be overturned and patients will be free to receive the medicine they need as the voters intended.

Please contact Mr. Corry at 303-634-2244 with any questions, or if you are a patient who has been denied the caregiver of your choice.