Marin DA: A cannabis club is pushing for recall Tuesday because seized weed is not returned.
By Herbert A. Sample
Bee San Francisco Bureau
(Published May 21, 2001)
SAN RAFAEL -- At first glance, Paula Kamena would seem to be a friend of medical marijuana supporters.
As the district attorney of pot-friendly Marin County, she established guidelines that shy away from prosecutions of people who grow or possess sizeable amounts of the illegal drug for use as a treatment for illnesses such as cancer or AIDS.
But, with medical marijuana advocates leading the charge, Kamena faces a serious effort to oust her from office in a recall election Tuesday. Her detractors say she essentially is undermining California's medical marijuana law, Proposition 215, by condoning the arrests of cannabis patients who ultimately are not prosecuted but whose pot is confiscated nevertheless.
"That's a terrible thing to do to patients," said the Rev. Lynnette Shaw, Kamena's chief antagonist and the operator of the Marin Alliance for Medical Marijuana, a cannabis club in the county.
"That means that (Proposition) 215 is subverted in every instance, because no matter what, the plants are dead and they lose their marijuana."
The seizures led to a spike in her sales, Shaw added, fed by patients whose supplies had been hauled away.
But Kamena says she cannot force the police to return marijuana in cases that are not prosecuted, even if 73 percent of Marin voters endorsed Proposition 215, the second-highest percentage in the state. Of particular concern, she said, is that federal law does not recognize the legality of marijuana for medicinal use.
"People think the DA is in charge of everything," she said. "Law enforcement, they're the ones on the street. They're the ones that have to make the judgment call."
Just last week, the U.S. Supreme Court barred cannabis distributors such as Shaw from using a medical necessity defense to shield themselves from prosecution on federal marijuana charges.
Proposition 215 remains in effect, though, granting users with legitimate medical needs a legal defense if they are prosecuted in state courts.
Kamena describes her policy on medical marijuana as one of the most progressive in the state.
In cases where a person possesses no more than 12 immature and six mature marijuana plants, a half-pound of dry cannabis and legitimate evidence of medicinal need, and if there is no indication of illegal sales, "you can be kinda darn sure that we will not prosecute," she said.
Out of 815 criminal cases involving marijuana that were filed in Marin from 1998 through 2000, 73 defendants employed the medical marijuana defense, Kamena said. Charges against half of those defendants were dropped after a legitimate medical need was established. Most of the other half pleaded guilty and one went to trial, she added.
"I don't think we have ever gotten a case from police where someone had AIDS or cancer," said Kamena, who was first elected in 1998. "The kind of cases we (pursued) was the person who had an arthritic knee and wanted to ski better É or a longtime junkie."
The problem in Marin County, Shaw and her allies charge, is that in those cases where an arrest occurred but there is no prosecution, the marijuana of sick people almost never was returned. Kamena, therefore, should pressure local police to give it back, they say.
"There's an oversight responsibility on the part of the district attorney and City Council to rein in police practices that are illegal," said Jay Cavanaugh, head of the American Medical Marijuana Association.
If they win the recall election against Kamena, medical marijuana proponents are likely to train their sights on other top county prosecutors around the state, most notably Placer County's Bradford Fenocchio.
Fenocchio angered medical marijuana advocates with his prosecution of the 1998 Libertarian Party candidate for governor, Steve Kubby. Kubby's case ended in March when a judge dismissed pot possession and cultivation counts against him, saying he needed the marijuana to treat a rare form of cancer.
While the recall campaign against Kamena clearly is being organized now by medical marijuana advocates, it grew out of a Sonoma County woman's custody battle. Carol Mardeusz fought for several years to gain custody of her daughter from the girl's father through courts in a number of counties, including Marin.
When that proved unsuccessful, she and supporters began recall efforts last year against, first, judges who had overseen her case, and then against Kamena.
The petition against Kamena accused her of failing to prosecute persons involved in Mardeusz's custody case, as well as a county supervisor who ran up thousands of dollars in personal purchases on her county credit card. It made no mention of marijuana, medicinal or otherwise.
The petition signature-gathering effort was faltering when Shaw and her allies joined, pumping in almost $10,000 to hire signature gatherers who collected far more than the necessary 14,000 names.
Since then, Kamena has labeled her foes obliquely as drug dealers and, more explicitly, as "thuggish." She also has pummeled her lone opponent, Tom Van Zandt, calling him unqualified for the district attorney's job because he has been a lawyer for only three years and his specialty is patent law.
Van Zandt, who did not respond to requests for an interview, is Mardeusz's brother.
Kamena's critics have returned the favor, charging she has done backflips to aid the politically powerful. At a recent debate, Van Zandt cited Kamena's decision not to prosecute state Supreme Court Justice Joyce Kennard after she was arrested in 1999 near Sausalito on suspicion of drunken driving. Kennard's blood alcohol level was below the legal limit, Kamena has said.
If Kamena is recalled, Van Zandt needs only one vote to replace her.
The Bee's Herbert A. Sample can be reached at (510) 625-9983 or hsample@sacbee.com.
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