Mistrial Ends First Medical Pot Case
Marin podiatrist said he smoked to ease back pain

Peter Fimrite, Chronicle North Bay Bureau

A Marin County jury deadlocked yesterday on whether to
convict a potsmoking podiatrist for cultivating the
marijuana he said he needed for back pain.

The case against Dr. Alan Ager, the first to go to trial
in which the Medical Marijuana Initiative was used as a
defense, was supposed to be a precedentsetter, but that
all went up in smoke.

The Marin County Superior Court jury voted 10 to 2 in
favor of conviction, but the holdouts could not be
swayed, and Judge Vernon Smith was forced to declare a
mistrial after only about eight hours of deliberation.

``It's better than a conviction,'' said Ager's lawyer,
Laurence Lichter, who argued that his client had to
smoke marijuana to reduce back pain suffered in a 1978
car accident.

The nondecision left the case in limbo until a hearing
September 3, when Deputy District Attorney Teresa Leon
is expected to announce whether she will retry the case.

``We'll have to assess the evidence and assess what the
jurors have to say,'' Leon said.

Ager was arrested Sept. 11, 1996, for allegedly growing
135 marijuana plants at his sprawling home overlooking
the San Geronimo Golf Course and Nicasio Valley. He said
his sister, Dr. Phyllis Ager, who had conducted studies
on the effects of marijuana on cancer patients, had
prescribed the pot.

Leon argued, however, that the amount of pot was way too
much for the doctor to smoke himself and the
sophisticated cultivation system, baggies and other
paraphernalia indicated he was more of a dealer than a
patient.

The case fell retroactively under Proposition 215, the
Medical Marijuana Initiative, which was passed two
months after the arrest. The initiative allows
individuals with a medical condition to grow and use
marijuana, but it does not protect those who distribute,
buy or transport pot.

The ambiguities in the law have left police and lawyers
without clear guidelines on how much marijuana is legal,
and it was apparently a factor in yesterday's hung jury.

``I didn't think there was enough information for me to
say he didn't use marijuana for medical reasons,'' said
Nancy Bernard, a 42yearold Mill Valley cook who
supports the legalization of marijuana and was one of
the two holdouts. ``He has back pain. He had a doctor's
recommendation. Who's to say what's too much.''

Ager, who is on the board of directors of the Marin
Alliance for Medical Marijuana, took a few tokes
yesterday before the decision and said he would take a
few more after.

``I believe the growing of marijuana is one of the best
things I've done for my fellow man,'' he said.
 
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