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By R. Scott Moxley
By Charles Lam
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Photo by Johan VogelWhen the letter arrived, David Lee Herrick was sitting on his bunk during a lockdown at California's Salinas Valley State Prison. He opened it, scanned the first few pages, and decided he couldn't bear the pressure. He passed the letter to his bunkmate.
"You've been reversed, man."
For a moment, Herrick thought he had either heard wrong or was the victim of a sick practical joke. The letter was from the California Court of Appeals and concerned Herrick's May 1998 conviction on two counts of selling marijuana. Herrick's alleged "customer" was a terminally ill California resident who had a doctor's note allowing him to smoke cannabis under Proposition 215, the medical-marijuana initiative passed into law by state voters in November 1996.
According to the letter, a few days earlier, on Sept. 3, the appeals court had unanimously overturned his marijuana conviction, citing prosecutorial misconduct by a now-retired Orange County deputy district attorney named Carl Armbrust.
For Herrick, the letter was a long-overdue get-out-of-jail-free card. Beaming, he shouted at the nearest prison guard.
"Check this out, man. I've been reversed," he bragged.
The guard glanced down at the paperwork and then looked back at Herrick, expressionless.
Herrick's mood was too good to start an argument. He returned to his bunk and started packing his few belongings. The next morning, after 29 months behind bars, he walked out the doors of the prison a free man.
But his elation didn't last long. During Herrick's imprisonment, the medical-marijuana movement he helped found had fallen victim to the drug war. Throughout California, judges, district attorneys, police and the state's attorney general launched a multifaceted legal attack on medical-marijuana clubs, jailing members, confiscating cannabis, and harassing doctors who took the state law at face value and prescribed marijuana for their patients who needed it. Once-thriving clubs in LA, Oakland and San Francisco were raided and shut down. Libertarian gubernatorial candidate and longtime cancer sufferer Steve Kubby—who, his doctor says, is still alive because of marijuana—was arrested near Lake Tahoe with his wife, jailed, and driven toward bankruptcy in the subsequent legal battle.
When Herrick left prison, he surveyed the damage and came to a conclusion: it was time for the medical-marijuana movement to go on the offensive. Herrick says he has a plan, one that will lead him back into the battle over medical marijuana, a war Herrick has been fighting, in one way or another, for most of his life.
David Herrick first emerged on the public scene days after Prop. 215 passed, when he co-founded the Orange County Cannabis Co-op with fellow activist Marvin Chavez. Both came to the movement because of chronic pain that qualified them to smoke marijuana under the new law. Herrick, a former San Bernardino County sheriff's deputy, broke his back during an on-the-job accident eight years ago; Chavez wears a back brace to combat ankylosing spondilitis, a rare and incurable disease that has fused his bones together.
They share something else: within a year of Prop. 215's passage, Herrick and Chavez were arrested and charged with selling marijuana by the Orange County district attorney's office, one of the front-line players in the state's anti-Prop. 215 blitzkrieg. Police arrested Herrick in March 1997, after they confiscated several small bags of marijuana marked, "Not for Sale: For Medical Purposes Only" from his Santa Ana hotel room. They also found cannabis-club literature and a computer database that led police to two club members, Thomas Jerry Pollard and Gregory John Hoffer.
Pollard and Hoffer told police that Herrick and Chavez had provided them with cannabis on at least two occasions. Both men had doctor's prescriptions for marijuana: Hoffer suffered from debilitating back pain, and Pollard was carrying a card identifying him as the caregiver for another man, James O'Rear, who suffered from lung cancer at the time and has since died. The district attorney's office nonetheless charged Herrick with four counts of selling marijuana.
It was a close case, and at times the courtroom proceedings resembled a scene from Alice in Wonderland. During one particularly weird moment, prosecutor Armbrust became visibly upset when O'Rear failed to answer a subpoena to testify against Herrick. Armbrust threatened to issue a warrant for the sick man's arrest but withdrew the threat when he learned O'Rear was bedridden at a local hospice, dying a slow and painful death.
In court, Armbrust, a baldheaded, septuagenarian Eliot Ness, repeatedly denounced Herrick as a "street drug dealer" cleverly trying to pass himself off as an activist. There was no way to challenge that assertion: Santa Ana Superior Court Judge William R. Froeberg barred Herrick's defense from mentioning Prop. 215 during the trial. The jury had little choice but to buy Armbrust's portrayal of the defendant.
"Do you want to know why I did 29 months in prison?" Herrick asked. "For furnishing three-quarters of an ounce of marijuana to man who had a doctor's written recommendation and was dying of terminal lung cancer."
It's possible to argue that Herrick's interest in the medical uses of marijuana began two decades before he was injured, when he was a U.S. Army combat medic serving in the central highlands of Vietnam. Born in 1950 in Key West, Florida, Herrick was raised all over the country, the son of a U.S. Navy employee. While still teenagers, he and his best friend, Wesley Kerr, worked for a volunteer ambulance corps in Brooklyn, New York. When the pair turned 18 in 1968, they enlisted in the U.S. Army Medical Corps through the buddy system. While Herrick was still in basic training, Kerr was shipped off to Vietnam and assigned to work on a medevac chopper, where he helped ferry wounded troops from the battlefield to the nearest base camp.