05/24/15 Doug McVay

Century of Lies

This week we're at the Patients Out of Time clinical cannabis conference in West Palm Beach, FL. We talk with California criminal defense attorneys Heather Burke and Zenia Gilg about a landmark case they've been arguing in federal court, and with longtime NORML activist, national legal committee member, and criminal defense attorney Alan Silber.

Audio file


MAY 24, 2015


DEAN BECKER: The failure of drug war is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for decriminalization. Legalization. The end of prohibition. Let us investigate the Century Of Lies.

DOUG MCVAY: Hello and welcome to Century of Lies. I'm your host, Doug McVay, editor of DrugWarFacts.org. Century of Lies is a production of the Drug Truth Network for the Pacifica Foundation Radio Network and is supported by the generosity of the James A. Baker III Institute for Public Policy and of listeners like you. And now, on with the show.

Well folks, this week I'm recording live at the Patients Out Of Time medical cannabis conference. It's being held down in West Palm Beach, Florida. It's been a great few days, I've been helping out, volunteering at the conference, and also getting some good interviews with a lot of the attendees. We're going to go straight into it. First, I want to have you listen to some words from a good friend of mine, criminal defense attorney, member of the national legal committee of NORML, Alan Silber.

I'm at the Patients Out of Time conference, and speaking with my friend Alan Silber, who's a criminal defense attorney and a brilliant man, and one of my earliest mentors, and I am so grateful to you for all that you have taught me, and this is going over the air at some point so just want the world to know that, uh, yeah. If you can find people who are really inspirational and really brilliant and surround yourselves with them, there's no telling what you can do, and maybe you'll even do a radio show, and have them here as a guest. Alan, thank you so much. Good to see.

ALAN SILBER: Ah, you've got me blushing. But that was kind of nice.

DOUG MCVAY: Well, we're at the Patients Out of Time conference, and you've been working with these folks for a while. How did you get involved, why do you get involved. You're not in the medical cannabis business, and you're not one of the, one of the, you're not a California attorney. So, why, how did you get involved with this stuff.

ALAN SILBER: Well, I've been in the marijuana law reform movement since the early '70s. I joined NORML and was a part of NORML starting in 1977, and I was actually on the board of directors of NORML at the same time that Mary Lynn Mathre and Al Byrne were, they're the two people who started Patients Out of Time, so they've been my friends forever and ever. And I have not been in the medical marijuana movement, although we did that case in California, the test case, suing the four US attorneys last year. Didn't go anywhere, but -- so I'm not completely out of the movement, but that's not my profession, I'm a criminal defense lawyer doing mostly white-collar, you know, stuff in federal court.

But, this is a wonderful movement, it's showing the world that this is medicine, in a very scientific way, which is I think what we need, because the science dispels reefer madness, even if you're talking about, whatever part of the political world you're talking about. And then, it seems as if my daughter is the Chief Operating Officer of Patients Out of Time, and she was running this conference and, is there some way you think I possibly could have said no when she, not asked, told me I was coming here to be part of this conference? What fun.

DOUG MCVAY: That's too funny. Of course, you moderated a few of the panels down there this morning and afternoon at the legal seminar. Tell us some of the highlights, it was, I was very happy to be able to hang out and listen, I thought it was fascinating. What were some of your highlights from it?

ALAN SILBER: Well, first of all, I think that we got to discuss in depth, and as far as I know it's the first time anybody's done it, since Judge Kimberly Mueller handed down her 38-page decision denying a motion to dismiss. But the motion to dismiss itself was really innovative, creative, and achieved something that no criminal defense lawyer or marijuana law reform lawyer, had ever done, which is to -- at least not since 1988 -- is to get a hearing on the pharmacological and other important aspects of marijuana compared to other substances, such as over the counter medicines.

And so that they got that hearing, and litigated, the US Attorney's office went nuts, and while they lost, this was a landmark decision, we won some stuff, lost some stuff, there's clear, you can correct to do this again. This is a motion that would be viable in any case in the United States District Courts, across the country, that involved marijuana as the substance where the crime is charged. So, to have the two lawyers from San Francisco who did the case come down and talk to us, and where they came from I felt was really inspirational. Each had a mentor of the older generation, Tony Serra and Omar Figueroa, and each of these women who were mentored by them at the very earliest stages of their career, and now they're stars in their own right, doing the next innovative great case, and you know, basically, flowering. So that by itself was pretty wonderful. There's a longevity to the movement. Well, you know, you and I have that from having worked on Oregon Marijuana Initiative together in 1984.

DOUG MCVAY: It's true, and that is one of the, I joke that these things are like reunions as much as conventions, and it's not that much of a joke, and there is that mentoring and the rest of it. And, I didn't really get to many of the legal seminars so I probably didn't see it as much on the legal side, but -- talk to me about that, some of the values of it, and, you know, how do -- talk to me a little bit about that, because it's a thing -- well, about today's stuff, but if you have -- tell me a little more about today's stuff if you have some thoughts, but if you, but think about for a moment about the, this sort of, the mentoring thing and the movement, and you, because you've got the process that goes with the legal thing, and you -- I mean, you do that, it's a teaching thing, and it's more than that, and it's something that I think's really important, and people really do, they should be thinking more about, because it, I mean, if people did that consciously more, I think this would be a bigger movement, and a better world in a lot of ways, you know, I mean --

ALAN SILBER: It's kind of neat, in the movement, to see the next generation up. I mean, Laramie's my daughter, she's like, you know, as I said, she's really becoming a force in the movement. I've, I guess it was Mike Stepanian's daughter was in New Orleans when I was speaking, you know, Jerry Goldstein's son is around and doing stuff, and just watching this whole next generation of, you know, idealistic people who, and I think this is really the thing, who admired the idealism of their parents, and so rather than what sometimes happens, they really want to emulate and do the same thing and be part of that same, warm and kind of wonderful community.

DOUG MCVAY: Well, and especially, frankly, you're coming from professional, from good professions and you're good at what you do, so the side they're emulating is the really cool part, as opposed to, as opposed to lining their pockets and getting a nice cush corporate job. I mean, a good attorney's a good attorney, and, you know, it's, you've got heart, and you put that good stuff to work, I think that's really commendable.

ALAN SILBER: Well, I think, I've said this in terms of happiness, I think one of the things that's sort of underrated or not spoken of is one of the components of making you happy, is having a devotion to craft. And for me, craft subsumes two things: it subsumes integrity, because you can't have craft without integrity, and I think it also subsumes getting the most out of yourself, doing your absolute best, you know, growing, and I've been lucky enough to be able to be in a great, wonderful craft of being a criminal defense lawyer, and I think that rubs off, you know. The offspring sees that devotion to craft, sees the satisfactions that that devotion brings, not necessarily monetary, but there's a whole satisfaction about doing the job for good people and doing it right in just causes. You know? So I think that's part of what you're talking about.

DOUG MCVAY: That's exactly it, I think that's -- yeah, it's tremendous. Tremendous to see. So, let's, I've got you, I said I'd keep you for just a few minutes and I hate to keep asking but let's go back to the -- this is about the drug war, so let's talk a little bit more about the drug war. What kind of things do you see happening, there was, of course there was the rescheduling hearing. What else do you see happening that's positive, and where do you think we should be -- where do you think we should be going here?

ALAN SILBER: First, there is one ultimate goal, and only one, we've got to end the federal prohibition. Til we do that, we're living in this Saturday Night Live, surrealistic world painted by Salvadore Dali, with some states doing one thing, medical, legalized, and the federal government, you know, still putting people in jail for it, and I mean, it's nuts. So, the federal, I really think, ultimately, ending the federal prohibition is what needs to happen, and what I see happening, in not so long a term. I mean, and I think there's three things that are driving the train.

First, the medical is just what everybody said way back when it started. It's the nose of the camel under the tent. Boy, were they right. So, and I think the other thing that the medical does is, it legitimizes the substance. It, whether you believe it's medicine or not, I mean, even the nutjobs that don't believe it's medicine aren't into reefer madness anymore. I mean, it just undoes reefer madness, which was one of the things that plays to the irrational. The other thing I think that's really going to do it, is that it's now a civil right. I think the insights of Michelle Alexander's book, where it calls the marijuana prohibition the new Jim Crow, and the report by the ACLU two years ago, which really says the marijuana prohibition is just a way that law enforcement targets communities of color, that that's, that's going to ultimately end it, when it's going to be part of the civil rights movement.

DOUG MCVAY: Well, I hope so. I believe so. I have to believe so to get up in the morning, I guess. What kind of thoughts and advice do you have for the listeners, for folks who are starting to think about being active and getting involved in reform?

ALAN SILBER: Well, there's always wonderful organizations who can use help because this is a lobbying effort. I don't think it's going to be ended -- I don't the judicial system is going to be what saves the day, it's going legislative and ultimately it means the people in Congress have to know that their political fortunes fare badly if they vote against marijuana law reform, and fare well when they do, so it's being part of the political process, is first and foremost, and helping to fund that process, because it does take money to run successful campaigns.

DOUG MCVAY: Alan, thank you so much. This has been terrific.

ALAN SILBER: A real pleasure, it's really been fun. Thanks. Take care.

DOUG MCVAY: That was an interview I conducted with Alan Silber. Alan Silber is a good friend, one of my mentors, he is a member of the NORML National Legal Committee. He's a criminal defense attorney up in New Jersey/New York area, and we are here at the Patients Out of Time conference in West Palm Beach, Florida. This is Doug McVay, I'm the editor of DrugWarFacts.org, and your host. You are listening to Century Of Lies, we're a production of the Drug Truth Network for the Pacifica Radio Network, and we come to you once a week with thirty minutes of news and information about the drug war and the fight to end it.

And now, let's listen to some more from that conference. A couple of the attendees who spoke at the legal seminar were involved in a huge case. This Controlled Substances Act is how we schedule drugs in this country, it's the Schedule One we keep talking about, the thing that makes it impossible to give a prescription for medical marijuana, you can only do recommendations. When it's rescheduled, when it's de-scheduled, marijuana federally will be a much different issue. Until then, we keep fighting this same fight.

Well, a couple of attorneys, Zenia Gilg and Heather Burke, challenged the constitutionality of the Controlled Substances Act. Other attorneys have tried something like this, but they must have done something really, really right, and the stars were in the right alignment, and who knows what else, but they got a good judge and they are bloody good themselves. And so, they managed to get a hearing, an evidentiary hearing, expert witnesses on both sides. I'll let Zenia Gilg and Heather Burke tell you more about it.

We're at the Patients Out of Time conference, I'm with a couple of attorneys who've done some outstanding work over the last year or two, Heather Burke and Zenia Gilg. Would one of you tell my listeners something about the case that you folks have worked on, and there's cat hair on my microphone, sorry, but --

ZENIA GILG: I love cats.

DOUG MCVAY: That's why I gave you that microphone. So, yeah.

ZENIA GILG: It makes me miss my cat even more.

DOUG MCVAY: Well, there you go.

ZENIA GILG: This is Zenia Gilg -- Oh. This is Zenia Gilg, and this case began because Heather and I had been representing so many federal cases across the country, and felt that we had no defense for our federal clients, because there's no federal medical defense. So, we decided that we were going to try and do something, and we didn't really know what it was going to turn out to be, but we got one of our good friends, a retired physician Dr. Philip Denney, involved, to try and make a comparison between marijuana and over-the-counter medications, and launch an equal protection argument.

As we were preparing the motion, a few things happened politically that we felt really bolstered our argument. One was the Attorney General issuing what's called the Cole Memorandum, which essentially limited prosecutions in states where they had legalized marijuana for both recreational and medical use, it applied to both. And essentially it said, we're going to back off of -- we're going to back off of prosecutions in those states. And feeling like if this was really one of the most dangerous drugs in the nation, meaning on Schedule One, that it seemed a little bit hypocritical for the government to be saying, well, yeah, it's a really bad drug but we're going to let you go ahead and distribute it.

So, we incorporated that into our equal protection argument also, and then started thinking about, well, isn't there some constitutional principle which makes it impermissible for the federal government to treat states differently? Which we felt the Cole Memo did. And, lo and behold, we had Justice Roberts of the Supreme Court striking down part of the Voting Rights Act under a doctrine called Equal Sovereignty, and that's precisely what that doctrine says, is you can't treat states differently unless you're trying to target a local evil. And, ironically, the local evil, if it were marijuana, then they would be actually increasing prosecutions in the states where they were distributing it for medical or recreational use.

So, essentially, we put together a three-tiered motion to, premised on equal protection, which involved the comparison to the over-the-counter medications, and also the comparison between the states, and then the equal sovereignty challenge, and we asked for an evidentiary hearing. And it was the unprecedented move on behalf of the judge in Sacramento, the federal judge who granted the evidentiary hearing. And so I think that's what, you know, we were all hopeful that once the evidence got out there that there would be a judge that would be brave enough to say, you know what, this isn't a rational decision, and it doesn't belong on Schedule One, and thus, the indictment would have to be dismissed.

A lot of things happened between the time that we filed the initial motion and the time that we concluded, one of the biggest things was the appropriations bill that cut off funding to the Department of Justice for -- I don't want to say prosecuting, but investigating, but involved in --

DOUG MCVAY: My read of it is, that all it does is stop them from interfering with state implementation of state programs.

ZENIA GILG: Correct.

DOUG MCVAY: Because that's what the text says.

ZENIA GILG: Yes. Yes, that's true.

DOUG MCVAY: I disagree strongly with Rohrabacher, I think his staffer pulled a fast one and the language that he put in there doesn't say what he thinks it does.

ZENIA GILG: Right. And I think that's why I'm hesitant, because I do think that, that Rohrabacher is clear that what they were trying to do was cut off prosecutions for cases that involve medical distribution in those states where they allow it, and I think one of the most important aspects of that particular statute is the fact that they call it medical marijuana.

DOUG MCVAY: So Heather, you brought the case, the judge actually granted an evidentiary hearing on this, and you had, if I'm not mistaken, your client wasn't exactly the most sympathetic, it's not like you had severely ill patient who was tending a few plants, you actually had someone growing marijuana in a national forest, right?

ZENIA GILG: Well, actually, they're alleging he grew in the national forest, we dispute that vigorously.

DOUG MCVAY: Right. But, the main thing is, the way they were framing it, the way they were framing it, your client wasn't being presented in a kind of sympathetic way.

HEATHER BURKE: Well, we have to remember this was a 16-defendant initially, there were 16 or so that were initially indicted, and there was different gardens, or cannabis gardens or grows, in I think at least two different counties, so, you know, the fact that some of these are all related was questionable in the first instance. So, you know, our client, Pickard, who Zenia and I represent, it was a medical cannabis garden, and there is a medical defense if such a defense were allowed into federal court, which it's not, and hence the motion.

ZENIA GILG: But the truth of the matter is, is that it really doesn't matter, because if you're finding that the statute that places marijuana on Schedule One is unconstitutional, then it applies equally to the drug cartels as it does to the patient who's dying.

HEATHER BURKE: Because it's the substance, not the use. And the judge in her order actually noted that the government had appeared by their questioning to concede that some of the cannabis was intended for medical cannabis dispensaries in California, but she found it irrelevant to the question, which it is. Because it wasn't whether this is appropriate or whether this is appropriate medical necessity defense, that would be a pre-trial motion or a motion in limine for trial, where that becomes really ultimately relevant, but here was a question about the substance itself.

DOUG MCVAY: So, uh, so, tell me, what happened. The judge gave you a ruling. What's happening now?

HEATHER BURKE: The judge gave us her 40-page order, sadly only three pages was dedicated to the five-day evidentiary hearing, or at least the analysis of the facts that came out at that evidentiary hearing. And she framed it in, according to the legal standard, which is not whether cannabis has, you know, fits these elements, but whether, if there's a dispute, could Congress side with the government. And in each of the factors she found that there was a dispute, our witnesses testified a certain way, but government witness, a former Drug Czar, testified to the contrary, and each, for each factor, and because there's basically a battle of experts, the case goes to the government.

ZENIA GILG: Because what she analyzed it under was what's called the Rational Basis Test. And, under that test, first of all the courts are not supposed to overturn Congressional acts. And so, in order to get a court to overturn a Congressional act, we would have to show under rational basis analysis that there's no imaginable or conceivable basis that Congress could have decided and continued to decide that marijuana belongs on Schedule One. Therefore, she said, the fact that there is an expert out there, Dr. Madras, who says X-Y-Z, Congress could believe that expert, and not believe the majority of the other, the experts on the issue. And so, that was sufficient for conceivable or rational basis.

So, our, you know, we had argued for a higher standard, and we'll continue as we go forward to argue for a higher standard, because I think that in order to ultimately prevail on this motion we need one of two things: We need a higher standard of review, so it can't just be whatever anyone, any expert says, because we're always going to have Dr. Madrases, there's always going to be an expert who says that marijuana's bad and no medical use and no medical supervision, there's always going to be that person out there. There's still people who say the world is flat.

So, we're not, if we go with how this judge analyzed it, we'll never win. But, if we can't get a higher standard of review, then at least we have to get a judge who will consider what I would call the totality of the evidence, who will incorporate not only the scientific and medical evidence, but also the evidence of the way that the federal government is behaving now, in other words, allowing native American tribes to grow it on their, on their property, allowing banks to accept money from dispensaries that are distributing it for recreational use, we're not even talking about medical use, recreational use. You know, i.e. money laundering. You know, all of these various behaviors of the federal government, which make the notion that there's no medical benefit rational defeats any such finding, it's hypocritical, it's absurd to think that, that there's a real belief in Congress that this is a Schedule One substance, when all of the actions of both the DOJ and Congress are showing that they're not treating it as such.

HEATHER BURKE: In order to overcome looking at that sort of totality of the circumstances, the judge limited her analysis to just the bare bones scientific evidence, not, she didn't analyze, or at least in her opinion she didn't analyze all these other factors, the government conduct that really was a great thrust of our motion, is that the government conduct in these DOJ memos and their relaxed enforcement, and, you know, the banking relax -- I mean, the purported banking relaxation, and, if she'd considered those, I don't think -- and Zenia and I said this the whole time, if she considers the totality of the circumstances here, there's no way that she could not find that this is rational. But, by limiting the issues so narrowly, she was able to basically find against us, because she read each one of the causes so narrowly, just didn't consider really the weight of the evidence, which is sad. It's a bummer.

But, you know, interestingly, Zenia and I did file on behalf of our client a motion to reconsider, because the judge didn't consider the Section 538 of the Fiscal Year 2015 Continuing Appropriations Bill. And we argued that very heavily, that was not enacted until after the evidentiary hearing had concluded, and so, in our post-hearing briefs though, we really relied heavily on that at the, oral argument at the culmination of the case in February. We again argued that, and she said that, you know, we hadn't appropriately put it forward, which I don't really know any other way that we could have put it forward, and so we did a motion to reconsider on that basis.

And also, you know, that the section 538, we didn't really argue Section 538 itself creates a basis to dismiss. That's a separate motion, so there's still a lot to be done, there's other motions to be run in that, in Mr. Pickard's case as well, so, you know, the case is not over by any means. But it would have been better to win.

DOUG MCVAY: Zenia, I know you've got to get out of here, you're late for a flight, and thank you so much for your time. And just to clarify, Section 538 is the part from the Cromnibus, in the appropriations bill, that's the Rohrabacher-Farr amendment which restricts state implementation of state programs, right?

ZENIA GILG: Correct.

DOUG MCVAY: Right on, right on. Well again, thank you so much.

ZENIA GILG: Thank you so much.

DOUG MCVAY: Yay. That was my conversation with Zenia Gilg and Heather Burke. They're attorneys in California, they managed to have a great deal of success. The case didn't make it, unfortunately the judge turned down their argument, but they're appealing, and again, it's just landmark, landmark stuff to even get a judge to listen to the argument and take it seriously, and one of these days, we'll push that boulder up on over the top of that hill. Well in the meantime, you can keep learning about what's going on and keeping up with the war on drugs by listening to the Drug Truth Network, which comes to you through the Pacifica Foundation Radio Network. Its flagship show, of course, Cultural Baggage, that's hosted by my friend Dean Becker. And this, this is Century Of Lies. I'm your host Doug McVay, editor of DrugWarFacts.org.

And well, that is all the time we have this week. I want to thank you for listening. Century Of Lies is heard on 420Radio.org on Mondays at 11am and 11pm, Saturdays at 4am, all times are pacific. We're heard on time4hemp.com on Wednesdays between 1 and 2pm pacific along with our sister program Cultural Baggage. And we're on The Detour Talk Network at thedetour.us on Tuesdays at 8:30pm.

A few of the stations out there carrying Century Of Lies include: WERU 89.9 FM in Blue Hill, Maine; WPRR 1680 am 95.3 fm in Grand Rapids, Michigan; WIEC 102.7 FM in Eau Claire, Wisconsin; WGOT-LP 94.7 FM in Gainesville, Florida; KRFP 90.3 FM in Moscow, Idaho; Valley Free Radio WXOJ-LP 103.3 FM in Northampton, Massachusetts, KOWA-LP 106.5 FM in Olympia, Washington, and Free Radio Santa Cruz 101.3 fm in Santa Cruz California. To all our listeners and supporters: Thank you.

This is Doug McVay saying so long. So long!

DEAN BECKER: For the Drug Truth Network, this is Dean Becker, asking you to examine our policy of drug prohibition: the century of lies. Drug Truth Network programs archived at the James A. Baker III Institute for Policy Studies.