Home » Dispatches »

The Arraignment of Jose Gutierrez

Jose Gutierrez getting arrested, tried, and punished by federal agents. Photo by Michael Short of the San Francisco Chronicle.

“Not guilty,” said Jose Gutierrez on Friday, July 13, when Magistrate Judge Donna Ryu asked how he was pleading to the felony charge of assaulting a federal officer. The alleged crime had occurred on April 2, only a few blocks from her courtroom, in front of a cannabis dispensary/coffeeshop that was being raided by agents from the IRS, the DEA, and the Marshals Service.

Earlier that morning the heavily armed raiders had taken down Oaksterdam University —where thousands of people preparing to enter the medical marijuana industry have been educated— and arrested its founder, Richard Lee. Word went out and medical marijuana activists raced to the scene to express their outrage. The protest shifted from OU to Lee’s nearby coffeeshop/dispensary, which was also marked for extinction by the U.S. Attorney’s office. Gutierrez, holding a sign that called the feds “Bullies!” and wearing a mask (of a bull), was in the front line on the sidewalk outside. Apparently the agents seizing computers and Cannabis inside the small cafe felt threatened and called for back-up. Another squad arrived, shoving people aside as they approached the front door.

Some observers say Gutierrez was singled out —two agents went for him before he responded. His supporters hope that members of a Bay Area jury reviewing evidence of the episode will conclude that the beating he’d received was severe-enough punishment for his response to two agents shoving him. (You can see Gutierrez being kicked in the head in the accompanying photo by Michael Short of the San Francisco Chronicle.)

Jose Gutierrez, who turns 50 in August, is the father of children ages fives and two. His wife Sarah Shrader runs the Sonoma County chapter of Americans for Safe Access. They live in Sebastopol, the town where Jose grew up. His brother is a contractor and Jose worked in construction for many years —“everything from framing to roofing.” His back went out in 1999. (“No carpenter makes it past 40 without back trouble,” knowledgable Norm Perry once generalized.) An auto accident in January of this year exacerbated his semi-disabling condition.

When Gutierrez was released on bail, Ryu had ordered him not to smoke marijuana. His pre-trial services officer, Kenneth Gibson, who looks like he spends half his waking hours in the gym, subsequently filed a violation memo expressing suspicion that Gutierrez was using Marinol (an FDA-approved Schedule-III drug for which Gutierrez had obtained a prescription) to cover up marijuana use. At the arraignment Gibson sought an order from Ryu forbidding Gutierrez to use Marinol.

Assistant Federal Public Defender Ellen Leonida challenged the court’s authority to impose such an order based solely on Gibson’s suspicions about her client. She called Frank Lucido, MD, who testified that he had prescribed Marinol for Gutierrez in April because he considered it the likeliest option for pain relief, based on the history he had taken. Gutierrez told Lucido that Cannabis was the painkiller that worked best for him. Lucido took him at his word and prescribed Marinol, which is a source of THC but lacks other beneficial compounds produced by the plant.In response to skeptical-but-polite questioning by Ryu, Lucido consulted Guttierrez’s chart and named two other drugs he had used in the past to treat his back pain: acetaminophen with codeine (generic for Tylenol #3) and the muscle relaxant cyclobenzaprine (generic for Flexeril).

The magistrate, who went to college at Yale and law school at UC Berkeley, kept implying that Lucido should have put the patient on legal painkillers, and Lucido kept reiterating that his obligation was to prescribe the best possible painkiller, based on the patient’s history. Ryu said, “there’s a whole world of painkillers out there,” as if Jose Gutierrez had some kind of ethical obligation to try a few more before she’d consider allowing him to use “the one painkiller in the world that would mask his use of marijuana.”

Leonida informed the judge that there was in fact a lab test —contrary to what Pre-Trial Services claimed— that could distinguish metabolites of the plant from metabolites of Marinol. The musclebound Gibson countered that Pre-Trial Services’ contract with a lab would not cover the more sophisticated test —a dubious assertion that Dale Gieringer of California NORML is seeking to confirm.

As Ryu again remarked the multitude of strong, effective, legally available analgesics, Leonida said “Are you saying he should take opiates because they can be identified [by the Pre-Trial Services lab]?” Ryu replied vaguely that we don’t make the law but we have to follow the law. Her final order was that Gutierrez explore alternatives to Marinol with his physician and report back on Sept. 11.

Afterthoughts

Afterwards, Lucido thought about things he might have interjected. There are many people for whom Cannabis works better than anything else to relieve various symptoms. It is unlike any other drug in terms of mechanism of action. What else is there to induce appetite? Etc., etc.

Tod Mikuriya, MD, used to describe Cannabis as “a unique immunomodulator that does not fit into any of the existing drug categories. O’Shaughnessy’s published his essay “On What Schedule Does Marijuana Belong?” Some people only make the argument they think has a practical chance of prevailing; Tod always made the argument he thought was true. Cannabis should be the first line of treatment for many medical conditions, he reasoned, based on its benign side-effect profile. If Cannabis is equally effective —not necessarily more effective— than, say, Tylenol, it should be preferred for reasons of safety. Tylenol can cause liver damage, and often does.

PS July 14: We wonder if Donna Ryu read the New York Times op-ed today about the inherent unfairness of judges setting onerous conditions as terms of pretrial release. The cogent essay by law professors Dan Markel and Eric Miller would have reminded her: “Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence.”

The authors decry “a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.” They “don’t dispute that defendants can be, say, monitored by tracking devices while they are released. But flight risk and crime prevention don’t justify bail condtions… which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication…

“The use of bail conditions as a means of low-level punishment is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs… have become all-too-familiar requirements of pretrial release…

“Many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pre-trial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.”


 

Support O’Shaughnessy’s

"From each according to their ability, to each according to their need." 

Our Entourage

Best newspaper in America Dr. Tod – The Movie The Society of Cannabis Clinicians was formed as a project of the California Cannabis Research Medical Group in the Autumn of 2004. Project CBD is a non-profit educational service dedicated to promoting and publicizing research into the medical utility of cannabidiol (CBD) and other components of the Cannabis plant. News and political analysis Dr. Lester Grinspoon, M.D. is Associate Professor Emeritus of Psychiatry at Harvard Medical School. Dr. Grinspoon was senior psychiatrist at the Massachusetts Mental Health Center in Boston for 40 years. Moving Sustainable Medicines Forward Consultant Newhead News Political allies Whole plant medicinal extracts Law Office Great artwork, incisive politics Omar CBD specialists

O’S Available Here

O’S First E-Book – Available Now!

Recommended Reading

Double-click to edit content...

Plugs

Prop 215 Ballads – Fred Gardner’s CD Medical Cannabis Videos
"There's marijuana, then there's marijuana."
—Dianne Feinstein

The Second Column

FDA Warns CBD Scammers

FDA Warning

Dr. Rik Musty, the first U.S. researcher to investigate CBD, alerted us to this item posted on the US Food and Drug Administration website, March 3, 2015: Warning Letters …

Big PhRMA Seeks Stoner Cred

Kevin Nealon

The comedian Kevin Nealon is pushing a blood thinner called Xarelto, aka Rivaroxaban, which is made by Bayer and distributed by Jansen. Xarelto can cause a type of internal bleeding …

Items You Might Have Missed…

Musicophilia

From O’S News Service April 13, 2015  Deadly Drug Allergies    Most fatal allergy attacks in the U.S. are caused not by insect stings or food, but by …

Mechoulam’s Democratic Perspective

Mechoulam preface

April 8, 2015   Istvan Ujvary sent in  this essay published in 1973 by Raphael Mechoulam, commenting: “I thought you would like the last sentences of the attached preface …

Other Products, Other Labs (Good Old Costco)

toscano01

By O’S News Service   Ever since we heard Raphael Mechoulam associate olive oil in the Southern European diet with significantly reduced cancer rates, we have been on the look-out …

Addiction Specialists are the Drug Warriors’ “Brain Trust”

THM Resigns

April 8, 2015  Dr. Hergenrather forwards “some biased stories coming out of Massachusetts,” with the observation: “As soon as I see a ‘drug abuse’ background in a naysayer, …

Remembering Murphy Brown

phot by Damon Winter/NYT

By O’S News Service April 6, 2015   Candy Bergen has just published a memoir called “A Fine Romance.” According to the New York Times, the actress “parses the nation’s …

Senate Bill Would Move Cannabis to Schedule II

Official Portrait

Hanya Barth, MD, forwards a press release announcing a Senate bill introduced March 10 —the “CARERS” Act— that has been endorsed by leading drug policy reform groups, including Americans for Safe Access …

Dr. Malka Joins KPIX Attack on 420MD

Screen shot 2015-03-17 at 9.07.35 AM

By O’S News Service March 17   KPIX, the Bay Area’s CBS affiliate, is covering the prosecution of a “potdoc” chain called 420MD. Read the background here.  Last night …

NYPD Chief Says Marijuana Causes Murder

Bratton Oregano Platt

 March 9   A front-page article  in the New York Times was given a rare two-sentence headline.   Back in November 2014 Mayor Bill de Blasio and Police …

Phrenology in the 21st Century

marijuana-brain

March 12, 2015   Nancy Sajben, MD, forwards a meant-to-frighten story from the Daily Mail based on a paper just published in Hippocampus by psychiatrists at Northwestern University.  The headline and subhead: Smoking …

Pill Pushers Preying on Women

abilify

In 2010 Julie Holland, MD published an excellent anthology called “The Pot Book.” Lester Grinspoon, MD, and SCC president Jeffrey Hergenrather, MD, were among the clinicians and researchers who …

Tylenol kills, Statins ‘associated with’ diabetes (ho hum)

tylenol

This snippet is from the British Medical Journal 3/3/15:  “…The true risks of taking the drug [paracetamol in England,  acetaminophen in the US, brand name Tylenol] may have been underestimated, …

The Case Against 420 MD

Ambush of Brown

From O’Shaughnessy’s News Service February 27, 2015 It was classic “gotcha” TV news: a 30-something blonde reporter with a big KPIX mike thrust forward has ambushed a 60-something …

Infant Deaths in Alaska

alaska

Note to the SCC February 19, 2015 An article in Counterpunch today suggests that a spike in infant deaths in Alaska might be attributable to fallout from Fukushima. I was …

California Assembly Planning MMJ Regulation

Asemblyman Reggie Jones-Sawyer

Note to the SCC 2/17/2015     At its March 8 meeting in Huntington Beach the Society of Cannabis Clinicians will hear from Los Angeles Assemblyman Reggie Jones-Sawyer (or …

Addiction to Synthetic Vitamins

For those of us lucky enough to have a farmers market nearby —and time to shop there.

From O’S News Serve 2/15    During the NBA’s all-star weekend, the “USA” team of first- and second-year players lost to the “World” team. Basketball fans who once attributed the superiority …

How efficient is smoking a joint?

smoking a joint

Dr. Jeffrey Raber and colleagues at the Werc Shop in Pasadena have published a paper in the journal Natural Products Chemistry and Research showing that the average joint …

Bonta Touts His (Prospective) Medical Marijuana Bill

Rob Bonta photo by Rick Saez

By Eric Robinson  New measures aimed at improving the safety and legitimacy of medical marijuana might be hitting California in the future as state lawmakers consider a bill that would …

More on Cannabis Suppositories

Jeff Hergenrather

From Jeffrey Hergenrather, MD, February 8, 2015 In my previous note, it would have been more accurate to say that there is very little data pertaining to the megadose use of …