See
Orange County Weekly Names Marvin Chavez Man Of The Year
and
A Column And An Article Cast Light On Chavez Prosecution
and
Chavez Found Guilty;
Faces Up To 7 Years In Case Marked By Judicial, Prosecutorial, And Police Misconduct – 5 Articles

Mr. Chavez was sentenced by Judge Thomas J. Borris in Orange County’s West Court to 6 years in state prison for selling marijuana, slightly less than a potential penalty of 8 years. Mr. Chavez contended he was attempting to deliver marijuana to patients who needed it, under protection of Proposition 215, passed by voters in 1996, which allows marijuana use with a doctor’s recommendation. Prosecutors claimed the transaction was a simple sale, which is still illegal under state law. Mr. Chavez plans to appeal.

In the wake of Mr. Chavez’s sentence, sick and disabled people with a legitimate need for marijuana have no clearer idea of how to obtain their medicine legitimately than they did before.

If anything, James Silva, one of Mr. Chavez’s attorneys, had it right when he told us after the sentencing, "The message this sends to patients is simple: hide."

It shouldn’t be that way. And it could and should have been less painful for all concerned.

The first mistake was made by law enforcement officials who refused to speak or meet with Mr. Chavez after Prop. 215 was approved. A patient himself, Mr. Chavez early on announced his intention to develop a cooperative to permit patients access to medical marijuana and tried to elicit advice and cooperation from law enforcement officials.

Instead of sitting down with him and saying, "Listen, these are the rules. If you follow them you’ll be OK, if you don’t you’re going to jail," the DA’s office commenced undercover investigations against him. In other localities in California local officials have closed medical marijuana distribution operations through civil injunctions rather than criminal charges.

Judge Borris, to be fair, was looking at an imperfect person in this defendant. Mr. Chavez had had previous brushes with the law—in fact, he received the injuries that led to his disabilities while in prison on a cocaine possession charge (he says he stopped doing it). One of those violations took place when he was released on his own recognizance. So it might be understandable that Judge Borris would refuse to release Mr. Chavez on probation without prison time.

But the magnitude of the sentence still seems on the high end of the range in sentencing guidelines. Mr. Chavez may have tried to implement Prop. 215 imperfectly, even illegally, but he was trying to follow the proposition the best way he knew how. We talked to many patients who attended the trial who have been helped by Mr. Chavez. The authorities should have worked with him rather than pose as patients to meet him, ask for marijuana, then "sting" him when a voluntary donation to the group changed hands.

James Silva and J. David Nick, Mr. Chavez’s attorneys, say they will try to ensure that Mr. Chavez has access to the medicine to which he himself is legally entitled—as all parties in this case have explicitly acknowledged—while he is in custody.

Others need to step up on this issue. California Attorney General Bill Lockyer’s office says he is assembling a task force to develop a statewide plan to implement Prop. 215. Perhaps he should enter the appellate process on Mr. Chavez’s behalf as well. Newly elected Gov. Gray Davis has the authority to pardon Mr. Chavez or to commute his sentence.

Local officials can help also. Sheriff Mike Carona and District Attorney Anthony Rackauckas could meet with people on all sides of the issue who have a stake in the development of consistent policies toward medical marijuana patients and establish guidelines that will tell people how to avoid running afoul of the law. The county supervisors could study the matter and develop an implementing ordinance. Council members in local cities could develop guidelines and ordinances—as is happening in fits and starts in other California cities.

Mr. Chavez will lose more of his life to incarceration in large part because state and local officials failed to implement the voters’ mandate. That shouldn’t happen again.

Copyright: 1999 The Orange County Register

(Marijuananews note: The following is a letter that Alan Bock wrote the judge.)

MARVIN CHAVEZ DOESN’T DESERVE JAIL TIME
From The Orange County Register
January 29, 1999
http://www.ocregister.com/
letters@link.freedom.com
By Alan W. Bock
Note: Mr. Bock is the Register’s senior editorial writer

I understand that a number of people have written letters to Judge Thomas J. Borris of the West County Court in Westminster regarding today’s sentencing of Marvin Chavez, who was found guilty on several marijuana-related counts last November. Here is mine:

Dear Judge Borris:

But it would be a gross miscarriage of justice if Mr. Chavez were sentenced to prison time. You sat through the entire trial, as did I, and saw things the jury didn’t see. You know that while Marvin Chavez made some mistakes and may have broken the law, he was engaged in a good-faith and above-board effort to implement the will of the voters when they passed Prop. 215. Officials should explain what he did wrong, then work with him to do things right, not throw him in jail. "Buyers’ clubs" in other parts of the state have been closed through civil actions, not criminal charges.

I remember talking with Carl Armbrust, the deputy DA who prosecuted this case, in the halls of various courthouses. In an informal setting, he was free with his theory of the case: that Marvin Chavez was a sophisticated marijuana dealer who cleverly used the Compassionate Use Act to cover his nefarious and highly profitable dealings. He even bandied about figures— how much drug cops said large quantities could be bought for and the like -- to underpin his theory that Mr. Chavez was making a lot of money.

But Mr. Armbrust didn’t present that theory in court. True, he said that under the law Mr. Chavez was nothing but a marijuana seller, but he didn’t try to document his sophistication or vast profits. That’s because—as Mr. Armbrust knows and probably knew all along—there was no evidence that that’s what Marvin Chavez was about.

If anything, the evidence is that Mr. Chavez is guilty mainly of an excess of compassion and naivete when he meets people with a convincing story about physical suffering. Mr. Chavez should have been more suspicious of the undercover cops who entrapped him. He probably should have been more sophisticated in the way he ran his support group. Those shortcomings made him vulnerable to law enforcement officials more concerned with proving that Prop. 215 was a mistake than with devising ways to implement it in a lawful and honorable fashion.

I followed Marvin Chavez’s efforts for several years and in the last year I’ve gotten to know him reasonably well. I’ve been to his modest house and had long talks with him and with other patients. I’m convinced there was no criminal intent in what he has done. Yes, there’s resentment about aspects of the legal system and public officials who have refused to meet with him or discuss ways in which he might help to meet the needs of patients who have a legal right to have access to marijuana. But there’s no criminal intent.

Marvin Chavez tried to address some of the real problems that flowed from the fact that Prop. 215 (like most laws) was imperfect. The measure gave bona fide patients (and "primary caregivers," that amorphous term that still lacks anything resembling a rigorous definition) exemption from laws against possessing, using and cultivating marijuana. But it doesn’t create an exemption from laws against selling, distributing or transporting marijuana.

That might call for some wiggle-room in interpreting how those laws apply to medical patients, as more than one appeals-court judge—concerned that a "right" that can’t be exercised is an absurdity—has suggested. But it definitely creates problems.

Patients can grow marijuana in their homes, but it takes six months for the plants to mature. And some can’t grow it. Where will they get it? In the absence of action by the state to implement the law—e.g., allowing pharmacies to stock it with supplies from government-run plantations—the most common answer is the black market. Where but the black market can you even get seeds?

Marvin Chavez, starting from a limited knowledge base, tried to create a "white market" for medical marijuana. He contacted law enforcement officials to seek cooperation and counsel. He received none. He made mistakes; he may even have broken the law. But he was trying to do the right thing—to implement a law passed by the people, which opponents have not tried to overturn in court because the effort would surely fail— in the face of failure by authorities to do so.

Sentence him to community service setting up a distribution network that meets every legal criterion, with the stipulation that no marijuana changes hands until you or a panel of judges has reviewed it for strict legality. Or sentence him to strict probation and keep an eye on him. But if Marvin Chavez serves even a day in prison for trying imperfectly to do the right thing it will be a grave injustice.