by Michael Dougan

"San Francisco Examiner" - Thursday, September 23, 1993

AIDS PATIENT'S CASE TESTS COUNTY'S STAND

FAIRFAX - When police raided Barbara Sweeney's apartment last week, she demanded that they take tender care of the two five-foot marijuana plants they carried away from her upper-story deck.

Sweeney, who uses cannabis to combat the pernicious wasting syndrome that accompanies AIDS, was confident her illegal plants would be returned in short order.

Reasoned Sweeney: The Marin County Board of Supervisors unanimously endorsed the legalization of pot for medical purposes in a resolution last year. So did the state Legislature when it recently passed Senate Joint Resolution No. 8, declaring that "the federal government continues to deny access to (marijuana) for political rather than medical reasons," placing "message before medicine, convenience before compassion, and politics before patients".

Sweeney, 39, believed she had the law on her side. She was wrong.

The marin County District Attorney's Office decided this week not to file possession and cultivation of marijuana charges against Sweeney, hinting at humanitarian considerations. However, noted prosecutor Ed Berberian, "she will not be getting her marijuana back".

DROP THAT WATERING CAN

Nor did the Fairfax cops seriously consider Sweeney's plea that her plants be watered while the case was under consideration. "We don't water marijuana plants for somebody," said Detective Eric Huot, who led the raid on Sweeney's home. "That would be cultivation of marijuana, and that's illegal. They've been destroyed".

Sweeney's expectations reflect a belief among some medical marijuana advocates that several county resolutions around California, including San Francisco, as well as the state bill, modify the legal status of pot. (Proposition P, passed by San Francisco voters in 1992, supports the medicinal use of marijuana). The Marin measure "is simply an advisory resolution that does not have any binding affect," said Berberian. "It can't pre-empt state or federal law".

"The bottom line is that regardless of SJR No. 8 it is still illegal for anyone to grow marijuana," said Cathie Douglas, a policy consultant to state Sen. Henry Mello, D-Santa Cruz. Mello, along with Sen. Milton Marks, D-San Francisco, drafted the joint resolution, which urges federal officials to reclassify marijuana as a medically beneficial drug, available through prescription.

HIGH HOPES

Sweeney said she and members of a group called Hemp Renaissance of Marin had hoped the county resolution would inspire less rigid enforcement of the law in cases like hers.

"Barbara apprently was having a dialogue with the district attorney" over the return of her plants, said Lynette Shaw, a Hemp Renaissance leader and member of the county's drug advisory board.

Shaw said she'd encouraged Berberian to give back the plants, even at the risk of having to defend his action in court. "I told him we have a legal team that would have defended the decision to return the plants all the way to the Supreme Court", she said.

Berberian denied contemplating the return of Sweeney's plants. "I told her that she shouldn't hold out any false hopes," he said. "The law just doesn't allow us to do that".

Nor did pleas by County Supervisor Harold Brown and Health and Human Services Director Tom Peters sway the District Attorney's Office.

"This is a fairly clear example in which the medical use of marijuana needs to be given some wide berth and some acceptance, instead of being viewed as criminal behavior," Peters said. "It seems things are a little out of kilter when we wouldn't allow a woman who is perhaps dying of a disease as serious as AIDS to benefit from this medicine."

QUALITY OF MERCY

Brown said he thought the decision not to prosecute Sweeney might have been influenced by the board's resolution. "What the county was saying is that when people are dying or suffering, let's not go attack them for possession of a substance that could help them enormously," he said.

Sweeney said her benefits from smoking pot had been considerable.

"I had a death sentence from this wasting syndrome," she said. "Last May, they told me I had six months to live. I weighed 98 pounds."

After smoking an eighth of an ounce of marijuana every two or three days, "I gained 24 pounds in five months," she said.

Although her plants are gone, Sweeney plans to pursue her cause. She hopes to see a measure endorsing therapeutic use of marijuana passed in her own community.

"I'm not letting this go," she said.