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Published 2002-04-01 15:09:47
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Medical Necessity Defense Allowed In Colorado Trial Of Vietnam Vet
Who Uses Medical Marijuana To Ease The Symptoms Of Psychiatric Problems.

From the Rocky Mountain News

September 20, 1998

By Guy Kelly, Rocky Mountain News Staff Writer


Court to hear manís claim he has compelling medical need to smoke marijuana.

The law says marijuana is a crime, but to Michael Domangue, itís medicine.

And now the 50-year-old Grand County man will get to take his case to a jury.

Next month Domangue may become the first person in Colorado to argue in court that his medical condition justifies smoking pot, even though itís against the law.

"Nobody has ever jumped over this hurdle with a medical marijuana case before," said Domangueís attorney, Warren Edson.

Colorado doesnít have a law exempting the medical use of marijuana from criminal prosecution, but it does have a "choice of evils" defense.

Generally, it allows a defendant to argue that he was justified in breaking the law to prevent a greater injury. Domangue claims he smokes pot to ease a variety of mental and emotional problems stemming from his military service in Vietnam.

Similar cases are percolating in courts nationwide as part of a movement to allow the use of marijuana to ease conditions ranging from glaucoma to arthritis, said Tanya Kangas, director of litigation for the National Organization for the Reform of Marijuana Laws, known by the acronym NORML.

"The legal precedent thatís important to NORML is that a defendant ought to be able to tell a jury why he or she smokes marijuana," Kangas said. "Then the jury can decide whether that information is important to that particular case."

NORML and several other groups have a "Medical Marijuana Support Fund" that helps with expenses in such cases, including Domangueís. "We are definitely seeing a wave of these cases going through the courts," Kangas said.

Earlier this month, Edson, who serves on NORMLís legal committee, argued in Grand County District Court that Domangue ought to be allowed to tell a jury that he smokes marijuana for medicinal reasons.

Although prosecutors objected, Judge Richard P. Doucette agreed to allow the "choice of evils" defense, setting the stage for a perhaps precendent-setting trial in Hot Sulphur Springs beginning Oct. 14.

Prosecutor Craig Henderson of the Grand County district attorneyís office will now have to prove that not only did Domangue violate laws against possessing and cultivating marijuana, but also that he canít use his medical condition as a justification for breaking the law.

Henderson wonít talk about the case, but he argued in a motion that allowing the defense in this case is a waste of time that will confuse the issue and mislead the jury.

This wonít be the first time Domangue has been involved with the law over marijuana, or that he has made a case for what he believes are the plantís medicinal powers.

In March 1995, he founded the Sacred Herb Church in Boulder to promote marijuana, and he has long been a proponent of exploring new legal territory in pot cases, Edson said. Domangue has been charged with several minor marijuana offenses in the past few years. They were either dismissed or they resulted in a fine or probation.

Edson said Domangue in 1984 attacked police officers because he thought they were Viet Cong. He was found not guilty by reason of insanity and was sent to the Colorado State Hospital in Pueblo until he was discharged in 1989.

Domangue declined to discuss the current case. Records show he was sitting in his mobile home last October when Grand County deputies in the trailer park on other business noticed a pot plant in his window.

Domangue invited them in and when he was asked if he knew why they were there, he pointed at the window and said, "Itís probably that plant there."

There was also a wood plate on the coffee table in front of Domanague with marijuana seeds and "a little marijuana."

Heís been charged with possession of less than one ounce of marijuana. But heís also been charged with cultivation, a felony punishable by six years in prison. He is now free on $5,000 bail.

The wall of the trailer had a cloth picture with the words "Why Hemp," and his reading material included Marijuana Growers Handbook and Marijuana Botany.

Domangue also said he had a letter from his doctor saying he smoked marijuana for medical purposes.

Dr. Ray Leidig of the Mental Health Center of Boulder County, who once treated Domangue, testified in his behalf at the recent hearing.

Leidig said the use of marijuana reduces anxiety in people who suffer delusions or hallucinations.

He declined to discuss Domangue specifically, but he and Edson said Domangue has a long and troubled legal and medical history.

Edson said Domangue is a Vietnam veteran who is suffering from post traumatic stress disorder and who smokes to ease the symptoms of psychiatric problems.

Domangue has taken a prescription drug called Marinol, a synthetic marijuana, but Edson said the medication is too intense and long-lasting for Domangue.
NORML Responds to Nevada Doctor Who Said "Let them eat Marinol"
Perhaps The Single Most Damning Article On Medical Marijuana Fiasco I Have Ever Read Ė Without Intending To Be

One of the elements of the "choice of evils" defense requires that the defendant show that other reasonable alternatives were pursued but didnít work. -----

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