Marijuana ban to have rare hearing in federal court

In this file photo, members of the CAMPS team (Campaign Against Marijuana Planting) remove plants from a marijuana garden in the forest above Lake Shasta. Illegal pot farming on public lands is a problem throughout California, the growers clear-cut forests and cause environmental problems from garbage, irrigation pipes, hazardous wastes and pesticides. Gardens sometimes contain as many as 30,000 plants. It is a major problem in Shasta and Lake counties, where forest pot farming has become a major scourge that state and federal drug enforcement agents are struggling to control. less In this file photo, members of the CAMPS team (Campaign Against Marijuana Planting) remove plants from a marijuana garden in the forest above Lake Shasta. Illegal pot farming on public lands is a problem ... more Photo: Carlos Avila Gonzalez, The Chronicle Photo: Carlos Avila Gonzalez, The Chronicle Image 1 of / 4 Caption Close Marijuana ban to have rare hearing in federal court 1 / 4 Back to Gallery

Marijuana users and growers usually try to stay out of federal courts, which strictly enforce the nationwide laws against the drug and have rebuffed challenges to the government’s classification of pot as one of the most dangerous narcotics.

But that could change this week when a federal judge in Sacramento, in a criminal case against seven men charged with growing marijuana on national forest land in Trinity and Tehama counties, hears what she has described as “new scientific and medical information” that raises questions about the validity of the federal ban.

The Drug Enforcement Administration classifies marijuana, along with such drugs as heroin, LSD and ecstasy, in Schedule One — substances that have a high potential for abuse, have no currently accepted medical use, and can be dangerous even under a doctor’s supervision. The classification amounts to a nationwide prohibition on the possession, use or cultivation of the drug. The DEA reaffirmed marijuana’s status in 2011, and a federal appeals court in Washington, D.C., upheld it last year.

But the hearing that starts Monday may be the first of its kind in a criminal case since the early 1970s, shortly after Congress put marijuana in Schedule One under the DEA’s supervision, said Zenia Gilg, the San Francisco criminal defense lawyer who filed the current challenge.

“At that point, not a lot was known about the medicinal benefits of marijuana,” said Gilg, a member of the legal committee of the National Organization for the Reform of Marijuana Laws. “It’s about time somebody looked at the new evidence.”

That will be U.S. District Judge Kimberly Mueller, who granted the hearing, scheduled for three days, over prosecutors’ objections. In an April 22 order, she said lawyers for the defendants had presented expert declarations “showing there is new scientific and medical information raising contested issues of fact regarding whether the continued inclusion of marijuana as a Schedule One controlled substance ... passes constitutional muster.”

She issued the order in a case that, based on the evidence so far, has little to do with medical marijuana — the defendants are charged with growing a large tract of pot plants on forest land, and there’s been no indication that it was for medical use. But Gilg said that’s irrelevant if they were charged under an unconstitutional law.

As Gilg acknowledges, it will not be an easy case to win. She and her colleagues must prove not merely that the federal law is misguided, based on current research, but that it is entirely irrational. An initial ruling would apply only to the current defendants, but the impact would be broader if higher courts weighed in.

Support for defense

The witness list includes doctors and researchers who laud marijuana’s medical benefits and say it is much less hazardous than tobacco, alcohol and some everyday medications, and a former FBI analyst who says the federal ban has been socially destructive. Defense lawyers say they also are drawing support from an unlikely source — President Obama’s Justice Department, which, while defending the federal ban in court, has advised federal prosecutors not to charge people who are complying with their state’s marijuana laws.

California, 20 other states and Washington, D.C., allow the medical use of marijuana, and two of those states, Colorado and Washington, have also legalized personal use.

“If marijuana is actually such a dangerous drug, the rational response by the Department of Justice would be to increase, not decrease, prosecution in those states,” Gilg said in court papers. She also argued that the government’s state-by-state enforcement policy is discriminatory.

The government’s expert witness is Bertha Madras, a Harvard professor of psychobiology and a former official in the Office of National Drug Control Policy under President George W. Bush. In a court declaration, she said marijuana “has a high potential for abuse” and is properly classified among the most dangerous drugs.

Medical uses debated

Contrary to popular notions, Madras said, marijuana is addictive for frequent users, interferes with concentration and motivation, and can cause brain damage. Marijuana smoke contains “significant amounts of toxic chemicals,” she said. And despite “anecdotal evidence” that it helps some patients feel better, she said, there are no valid long-term studies that support its use as medicine — in fact, although some of the plant’s ingredients may be beneficial, “there is no such thing as medical marijuana.”

Nonsense, said Dr. Philip Denney, a defense expert witness and a founding member of the Society of Cannabis Clinicians. Despite government restrictions on the supply of marijuana for research, he said in a declaration, new studies have shown “remarkable promise” in using marijuana to relieve pain and treat numerous illnesses, including forms of hepatitis, gastrointestinal and sleep disorders, and Alzheimer’s disease.

Marijuana, Denney said, is a “nontoxic, nonlethal substance” with little potential for abuse and no recorded cases of fatalities, in contrast with the deaths caused by alcohol and tobacco. He said its side effects pale in comparison with the serious illnesses that can be caused by heavy doses of pain relievers like Tylenol and Advil and the hallucinatory effects of the main ingredient in NyQuil and Robitussin cough syrups.

Another defense expert, James Nolan, a chief of crime analysis and research for the FBI during President Bill Clinton’s administration, said the main harm caused by marijuana is “its status as an illegal substance,” which has relegated much of its distribution to criminals and cartels and ruined the lives of many of its users.

Mueller, who will weigh the conflicting testimony, is a former Sacramento city councilwoman and federal magistrate who was appointed to the bench by Obama in 2010. She is the first female judge in the Eastern District, which includes Sacramento and Fresno.

Bob Egelko is a San Francisco Chronicle staff writer.

E-mail: begelko@sfchronicle.com Twitter: @egelko