September 14, 1999
Important Court Hearing On Medical Patients' Right To Plead 'Medical Necessity' For Marijuana
Alexandria, VA: On Wednesday, September 15th, the Virginia Court of Appeals will hear oral argument on whether a jury can acquit an person on the charge of possession of marijuana if it finds that the citizen accused possessed that marijuana for his own medical use and further finds that the marijuana needed to avoid a serious harm to the accused that ordinary medicine could not prevent. Known as the medical necessity defense, it excuses a person for breaking the law by using marijuana when such use is necessary to avoid serious health consequences.
On September 23, 1997, detectives from the Fairfax Police Department discovered cultivated marijuana plants growing in the basement of Brian Murphy's home. Murphy owned up to the plants, but explained that he used marijuana as the only effective medication for the debilitating migraine seizures that he experiences on a regular basis.
Murphy is a disabled Vietnam veteran, having voluntarily enlisted for duty in 1972. He was honorably discharged after he suffered a severe head injury and a shattered knee cap in the line of duty. Murphy has tried to use prescription pain killers, but found them to be ineffective. In fact, when he stopped using marijuana in 1989 and used only prescription pain medication, he suffered a stroke. Murphy believes that the stroke was caused by the stress of the migraine headaches he was enduring. His attending physician confirmed that belief and encouraged him to begin using marijuana again.
Murphy assured authorities that he never intended to sell or distribute the marijuana he was growing to anyone else. Nonetheless, despite his chronic medical condition, Murphy was charged with manufacture of marijuana, not for his own use. To make matters worse, the trial court refused to allow Murphy to raise a medical necessity defense at trial. The jury was not permitted to take his medical condition into consideration at all in determining his guilt. Thus, the jury had no choice but to convict him. Murphy has appealed this decision and the court of appeal ready to hear his argument on Wednesday.
"Murphy has no legal option other than to suffer and risk death" says Murphy's attorney, John Zwerling. He reasonably believes that for him, using marijuana was the lesser of the two evils."
[For more information please contact NLC member John K. Zwerling, Esq. @ 703-684-7900 or Tom Dean, Esq. of The NORML Foundation @ 202-483-8751.]