SOURCE: San Francisco Examiner
CONTACT: letters@examiner.com

Medical pot case to return to court

Marin DA to retry doctor after first jury was split

By Donna Horowitz
REUTERS SPECIAL TO THE EXAMINER

SAN RAFAEL The Marin County district attorney has decided to retry
a closely watched medical marijuana case unless some new information
from the defense persuades prosecutors to change tack.

A jury failed to reach a verdict in the first trial of Dr. Alan Ager on
Aug. 20. Ager, who says he smokes marijuana to ease back pain, was charged
with one count of cultivation after sheriff's deputies seized 135 marijuana
plants from his Nicasio property last September two months before voters
passed Proposition 215, the state law legalizing the use of marijuana for
medicinal purposes.

Prosecutors plan to announce a decision on retrying the case against the
Marin podiatrist at a Marin County Superior Court hearing Wednesday.

"This is a total waste of taxpayers' money," said Maureen Kallins, the new
attorney representing Ager. "Seventyfour percent of Marin County voted for
Prop. 215. This is clearly a medical marijuana issue."

She added: "(Assistant District Attorney) Paula Kamina is not responsive to
her constituency. It's abominable and it's a burden on the life and liberty
of Dr. Ager, who is an honest man."

Kamina, the secondincharge at the district attorney's office, responded,
"We are trying to apply the law as the people voted for it. The issue is
not whether he had a medical condition. It's whether (the marijuana is) for
personal use or not."

The prosecutor in the case had argued that 135 plants were more than anyone
needed for personal use.

Kamina said the Legislature needs to resolve the issue specifying the
appropriate amount for personal use. The guidelines from the state attorney
general say several marijuana plants should be sufficient for a person's
medical needs, she said.

If the Legislature intended for people "to grow large amounts to stow away
for the winter," Kamina said, lawmakers need to clarify the issue.

Kamina said her office decided to retry the case unless it heard anything
new Tuesday afternoon during a meeting with Ager's former attorney,
Laurence Lichter, that would change the prosecutors' minds.

At the first trial, believed to be the first time a medical marijuana case
has gone to a jury in the state, the jury voted 102 to convict Ager. A
unanimous vote is needed for a verdict.

Asked what she would do differently in a new trial, Mill Valley attorney
Kallins said: "I think I'll be explaining the case in a different fashion.
. . . I'll communicate it so that people in the jury understand that Dr.
Ager is an honest man. He is no more a drug dealer than they are and he's a
man with a horrendous health problem."