SoDAkNorml.org: Meade County sentencing hearing illuminates absurdity of the law

Bob Newland
South Dakota’s marijuana laws put Meade County Judge Jerome Eckrich in an untenable position during a sentencing hearing last Monday (April 28). He managed to handle it in a compassionate, though still unjust, manner.

The defendant, Tom Faltynowicz, a rancher in southern Meade County, had been arrested in October for growing marijuana, having been turned in by his daughter after an altercation. Faltynowicz uses the herb to manage the nausea and loss of appetite caused by the chemical cocktail he is prescribed for AIDS.

In a plea agreement negotiated between Faltynowicz’s lawyer, Joe Ellingson, and Meade Co. State’s Attorney Jesse Sondreal, Tom pled guilty in January to the lowest-grade felony possession of marijuana, for which the maximum sentence is two years in the penitentiary and a fine of $4000.00. He was in court to be sentenced.

Faltynowicz’s doctor, Doug Traub, of Rapid City is an internal medicine specialist who’s been in the business for over 30 years. He appeared telephonically to testify for Tom. He said that he’d treated Tom for over ten years and that during that time Tom’s health had improved somewhat, rather than having declined as might be expected of an AIDS patient with the “indicators” Tom’s blood exhibited in 1998.

Maintaining a healthy diet is a principal problem among patients who must take certain medicines loaded with toxic chemicals, such as AIDS sufferers and those undergoing chemo-therapy for cancer, Traub explained. “I prescribed Marinol (synthesized THC, the main psychoactive in marijuana) for appetitie stimulation. We also discussed smoked marijuana, which many patients find more effective, with less negative side-effects than Marinol. I was aware that Tom was using marijuana for his wasting syndrome.”

“Tom has plainly benefited from using marijuana.” Dr. Traub said this in a courtroom in South Dakota, under oath. South Dakota law proclaims that marijuana has “no accepted medical use in the United States.”

Judge Eckrich asked, “Is smoking marijuana clinically necessary for Mr. Faltynowicz?” "Yes," Traub replied.

“Is there a mechanism by which we can differentiate, in a urinalysis, as to whether a person is smoking marijuana or using Marinol?” The quandary Eckrich was addressing with this question is that Marinol use is banned by South Dakota probation departments, because its indicators in urine are the same as those for smoked marijuana. "None that I know of," Traub answered.

Marinol is legal for doctors to prescribe and for patients, at least those not in jail or on probation, to use. Doctors may recommend marijuana use, but they are barred from actually delivering it to a patient or writing a prescription for it.

Ellingson began to make an argument clearly based on the intra-contradictory nature of the situation, but was cut off by Eckrich. “I’m not going to legalize medical marijuana out of this courtroom today.” He then sentenced Faltynowicz to eight months in the penitentiary, suspended except for seven days to be served in the Meade Co. jail during the next 90 days; a fine of $400.00; supervised probation for a year, during which he was not to possess or use illegal drugs; and subjection to arbitrary search at any time. Generally, a probation violation results in institution of the primary sentence.

“Does that mean I can’t use Marinol?” Tom asked. “That’s not what I said,” Eckrich answered, “I said no illegal drugs.” The probation department officer in the courtroom took note.

What Eckrich had done was legalize the use of marijuana for this particular convicted and to-be probation-supervised criminal, as long as he didn’t get caught with it.

Earlier, during Dr. Traub’s testimony, defense attorney Ellingson asked if his advocacy for therapeutic marijuana was professionally difficult. “Socially maybe,” Traub replied, “but as physicians, we use the tools available.”

So do cops and lawyers and judges. Every person in the legal system who touched this case acted as if they did not believe that marijuana has “no accepted medical use.” The result was a farce played out with a pawn whose life hung, and still hangs, in the balance.

Knowing that a man with a fatal disease used a commonly available herb to sustain his life, cops, lawyers and a judge arrested him, charged him with a crime, prosecuted the crime, and sentenced him for the crime of possessing the herb and using it to sustain his life. Granted, the result was one that Tom can survive, with luck.

He’s still stuck with the same problem he’s had since first being diagnosed with AIDS twenty years ago; an essential element in his therapy is illegal to obtain, have or use. He will use it. What will happen if he slips up or has a little bad luck, and gets caught with the one medicine he can’t have under the terms of his probation?

Will Judge Eckrich then put him in prison for eight months, where the state will have to bear the weight of his $4000 per month legal medicine bill while denying him the medicine that balances the toxic drugs with beneficial appetite stimulation? Dr. Traub said in court that there was no chance that the prison system could deal with Tom’s condition.

Would a probation violation then amount to a short “life in prison” sentence?

The So. Dak. legislature needs to deal with the patently absurd characterization of marijuana, in law, that it has “no accepted medical use.” Until it does, we will have to continue to watch farcical contortions like these--that illuminate the absurdity of the law--played out in court. It is unconscionably cruel to deny an effective remedy to sick, disabled and dying people.
SoDakNorml