Friday, December 19, 2008

Marijuana advocate acquitted

Staff Writer


SKOWHEGAN -- Longtime marijuana advocate Donald Christen was acquitted Thursday in Superior Court on cultivation and furnishing charges, convincing a jury that his pot is for medical purposes.

The verdict could have far-reaching effects on both sides of the medical marijuana issue in Maine, his lawyer, Walter McKee of Augusta, said.

"We had raised the affirmative defense that the marijuana being cultivated or being furnished was medical marijuana," McKee said Thursday afternoon. "Don acknowledged that he cultivated marijuana and he acknowledged that he possessed it with the intent to furnish it, but indicated that what he was cultivating and what he had possessed with the intent to furnish was medical marijuana, for one patient in particular."

Citing the state's medical marijuana law passed nearly a decade ago, Justice William Anderson told jurors that Christen, organizer of the annual Hempstock festivals and founder of Maine Vocals, met the criteria for medical marijuana under the statute, McKee said.

McKee said the case could set a precedent in Maine, where medical marijuana legislation was brought by citizen initiative in 1999.

"I think it's precedent setting in that it's the first case that I'm aware of that went to trial in which the affirmative defense was raised," he said. "It's the first I've heard of and I've certainly been around the mill."

McKee said an affirmative defense is something the defendant -- not the state -- has to prove.

McKee is a past president and a current member of the board of the Maine Association of Criminal Defense Lawyers.

He called the verdict a victory for medical marijuana advocates in Maine.

"I think it really is because one of the big issues at trial was whether Don had the appropriate documentation and the court allowed the documentation to be presented to the jury and the jury obviously approved it," he said. "You don't get to do medical marijuana unless there's actual medical authorization. The statue is very narrow in term of people who can use it."

Christen, 55, of Madison, faced a possible five years in prison had he been convicted on the felony charge of aggravated furnishing. He was charged additionally with aggravated cultivation, both stemming from his arrest in October 2007.

The charges were aggravated because of Christen's previous marijuana charges.

The medical patient for whom the marijuana is being cultivated is Carroll Cummings, 58, of Vassalboro. Cummings said Thursday he suffers from torticollis, or spasms of the neck and shoulder muscles.

"I wouldn't be able to get by without," he said. "It's a victory for me, it's a victory for every medical patient in this state."

Under Maine law, someone can legally cultivate, distribute or possess marijuana for medical use if specified medical conditions exist, a point with which District Attorney Evert Fowle takes issue.

"We certainly were disappointed with the verdict, but we certainly accept the verdict of the jury," Fowle said. "I think the medical marijuana defense has been used before; this is the first time that I recall it being successful.

"This whole medical marijuana law; we need to go back to the drawing board. We need to first have a discussion as to whether there is any medical viability of marijuana."

He said the medical viability of marijuana has not been proven. Most medical professionals, Fowle said, say there is very little medical viability for marijuana compared to other available treatments.

Fowle said there also is a "friction" between state of Maine law and federal law which lists marijuana as a Level One substance, or among the most serious and dangerous drugs.

"I think it's past time that the law be completely overhauled and that we go back to the drawing board," he said.

There is no appeal available to the state in criminal cases. The jury's verdict is final, Fowle said.

Contacted Thursday afternoon, Christen said he has been working on medical marijuana issues for many years and his efforts finally have paid off.

"This is a big victory -- it's going to mean a lot for everybody in the state of Maine, not just me," Christen said. "Now that we've got the win through the jury that means we have now broken the way through so we know exactly how to do it.

"This is the first of its kind here in the state and we're really excited about it. We will be able to help others to be able to go to court to assert the affirmative defense so everybody can use this now."

Doug Harlow -- 474-9534 ext. 342

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