By Peter Maguire
By Charles Lam
By Charles Lam
By Andrew Galvin
By R. Scott Moxley
By Gustavo Arellano
By R. Scott Moxley
By R. Scott Moxley
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.
"He was shot down and killed six months after he got there," Herrick recalled.
On April 1, 1969, Herrick arrived in Vietnam, assigned to the 5th Battalion of the 1st Air Cavalry Division—whose exploits were fictionalized by Francis Ford Coppola in Apocalypse Now.
"There were 160 guys in Charlie Company," Herrick said. "We weren't like the Marines. We were out in the field all the time. We stayed out. We had observation posts and listening posts and all that other happy horseshit."
In 1969, daily life in a 1st Air Cavalry infantry company was at best a tiresome trek through a mosquito-infested, humid jungle and, at worst, a major encounter with a well-armed and highly disciplined enemy. Given the uncertainties, every venture into the bush brought with it a mind-boggling mixture of mortal anxiety, sheer exhaustion and sometimes death.
"Firefights are like earthquakes," Herrick said. "They're either going to be long and turn into a battle, or they'll be short. They're unpredictable."
Herrick's first happened near the South Vietnamese village of Quan Loi. "We were backing [famed Indian fighter General George] Custer's old battalion, and we had to bust ass to get to where they were. It was one of those do-or-die situations, and we were up against North Vietnamese regulars.
"I took six wounded and three dead in my company that day," said Herrick. "Most of those were from mortars. They had us pretty well-pinned. You get into these situations where you're in the woods and you have no idea where the hell you are. You're at the mercy of the terrain."
Later that year, Herrick participated in a gruesome military campaign in the A Shau Valley, where the 101st Airborne lost dozens of soldiers in an assault on a remote peak that became known as Hamburger Hill. "We came in on the ass-end of that one," Herrick recalled. "When we got there, the soldiers were sitting around ready to shoot their officers, and I didn't blame them. When they finally got on top of that hill, they just turned around and left."
Not surprisingly, many American soldiers turned to drugs to alleviate the pressure of fighting a war that had no front lines against an enemy often indistinguishable from innocent bystanders. "You didn't know who your enemy was," Herrick said, "and you didn't care to meet the enemy.
"After you get in combat and actually get a kill to your name, it takes its toll psychologically," Herrick continued. "But the more people you kill, the more they reward you with medals and decorations and pump you up. So you begin to realize that this is all bullshit. Guys are dying, losing legs, and everyone is getting hooked on heroin."
The drug problem in Herrick's company was so intense that when Herrick tried to treat wounded soldiers in the wake of a firefight, he frequently found himself short of morphine. "The junkies in my company would raid my morphine whenever they couldn't get their heroin," Herrick explained. "No matter where I put it—in my aid bag or in the front pocket of my fatigues or even if I tried to bury it in the bottom of the rucksack—it'd always end up gone."
Without morphine, Herrick says, he turned to marijuana to medicate the wounded. About a month after he arrived in Vietnam, Herrick's company was patrolling a rubber plantation outside Tay Ninh when it took small-arms fire from what turned out to be a band of Viet Cong. As the crackle of gunfire sounded in the distance, a soldier who had been in-country for only four days fell to the ground, shot through the shoulder.
"This kid was 18 years old and scared shitless," said Herrick. "He was sobbing like a banshee. I had no morphine. So I went over to a guy I knew who had just scored and grabbed two joints and gave them to the kid. He fired one up." Herrick moved on to treat the other more badly wounded. Five minutes later, he returned to the kid, "and he was lying against a tree, joking like it was no big thing."
Herrick said the firefight at Tay Ninh convinced him of marijuana's value as a painkiller and anxiety-suppressant—at least in post-combat situations in which morphine was not available. "I made it a habit from that point on to always dispense marijuana," Herrick said. "I bought it with my own money. Whenever someone got shot, came out of shock and started to feel the pain, he'd usually start screaming. I would hand him a joint. Usually, he'd smoke it. If you got shot and weren't a smoker, you either became one or just shined it and lived with the pain."
The medical uses of marijuana were just as controversial then as now. Herrick's captain, a Special Forces-trained career officer, opposed any marijuana smoking by his soldiers in the field because the odor might attract the enemy. Herrick argued that a wounded infantryman who was hysterical and screaming his lungs out posed a much greater risk to his comrades than a stoned grunt who shut up and stayed out of the way.
"For the most part, that's exactly what marijuana did," said Herrick. "After smoking a joint, they were quiet. They'd sit there, or if they could get up, they would help prepare for the medevac. When the chopper came, they would help me load more seriously wounded grunts into the bird and ride back to the hospital without having to be restrained."
Herrick and his commanding officer "bucked horns for 20 minutes, and then he shut up," Herrick said.
Unfortunately, there were always more seriously wounded grunts to attend to, soldiers with injuries so grave they would die without immediate surgery. Marijuana was of little or no use to them. But there were exceptions even to this rule. One involved a soldier in Herrick's company who was hit by a "willy-peter," a white phosphorus round that continues burning after impact.
"His whole intestinal area, stomach, and parts of his pancreas and spleen were exposed," Herrick recalled. "I couldn't give him morphine because it was a stomach wound. But once I got him all bandaged up and was able to completely cover up his vital organs, he asked for a joint because he saw that one of the other wounded grunts was smoking one." The marijuana didn't save the grunt's life, according to Herrick, but it didn't kill him, either. "It was a miracle that he didn't die right there," he said. "But he made it; he survived the war."
It's laughable to consider law enforcement's contention that David Herrick is indistinguishable from "a street dealer." In fact, Herrick had no criminal record before 1996—the year Prop. 215 became law—when he was arrested in San Bernardino for marijuana possession. By 1970, his résumé already included military service and would go on to boast hospital work, animal rescues and a 15-year career as a cop.
After volunteering for service in Vietnam, Herrick worked at an Army hospital in Fort Meade, Maryland. There, he says, he worked at a secret wing of the hospital: Ward 2C, home to the Army's junkies and alcoholics.
Inside Ward 2C, Herrick learned the art of working with addicts. "It's the same thing we see in prisons today," Herrick argued. "People who are getting out of jail are still addicted, so the first thing they do when they leave prison is find their dealer. Then they're right back behind bars for violating parole. It's a revolving door."
After his honorable discharge, Herrick took a job as an inhalation therapist at Pomona Valley Community Hospital, studied emergency medicine at what was then Chapman College, and worked for Schaeffer Ambulance service. In 1975, he saw a help-wanted poster for an animal-control officer in Barstow. Herrick took the job.
Part of his duties required him to run supplies from the San Bernardino County Sheriff's headquarters in San Bernardino to the Barstow Sheriff's station. After three years of faithful deliveries, the captain of the Barstow station suddenly asked Herrick if he had any desire to be a sheriff's deputy. Herrick said he wasn't really interested but agreed to do a few ride-alongs. He was soon a full-time deputy.
From 1978 to 1991, Herrick wore the badge and uniform of a San Bernardino County sheriff's deputy, first at the Glen Helen Rehabilitation Center, then at the county jail, and finally as a patrol deputy in Barstow and Victorville. But his 15-year career in law enforcement ended in a medical retirement when he was run over by his own car during a routine traffic stop. "As I was getting out of the car, it shifted from park into reverse, caught my leg, and pulled me under," Herrick explained. "It took out my disk and herniated it so bad that it was irreparable."
Thus began Herrick's painful, years-long metamorphosis into a medical-marijuana activist.
After surgery, Herrick spent three months in bed. "I took all the conventional medications—Vicodin, Percodan and codeine," Herrick said. "I was becoming chemically dependent on those pills. I had no desire to stop taking them. When I found myself eating Vicodin like M&Ms, I had to get out."
Herrick's neurologist told him that if it were legal to do so, he'd gladly write a different prescription—one for medical marijuana.
By this time, Herrick's career had taken a bizarre turn. Unable to work as a patrol deputy, Herrick accepted a friend's offer to work in a head shop in Hesperia. When his friend moved away, Herrick bought the business. His new job—and his bad back—exposed him to the growing movement of disabled and sick Californians collecting signatures for the state ballot initiative that would ultimately become Prop. 215.
"The cops harassed the piss out of me," Herrick remembered. "I started gathering petition signatures at the shop. I got to know guys at the Orange County Hemp Council, and that's where I met Marvin Chavez."
The rise and demise of the Orange County Cannabis Co-op began in November 1996, just days after the passage of Prop. 215, when Herrick and Chavez co-founded the organization. Their mission: to provide medical marijuana to the club's handful of members, all of whom had a doctor's note recommending cannabis. That ended in mere months, when Herrick and then Chavez were arrested for selling marijuana.
Armbrust, like other law-enforcement officials around the state, saw a loophole in Prop. 215: while the law allows sick people to buy medical marijuana with a doctor's permission, it doesn't allow anyone to sell it—or even give it away.
In court, Armbrust exploited that fuzziness. He charged that Herrick and Chavez were nothing more than sophisticated street dealers. If so, the pair had unusual habits. Believing they were operating under the protective umbrella of the new law, they made no attempt to mask their efforts to get marijuana into the hands of those with a doctor's permission. They publicized their group's activities in letters to the Times, The Orange County Register and the OC Weekly. They invited law-enforcement and city officials to speak to their group on the subject of Prop. 215. They demanded—and received —written doctors' notes before dispensing marijuana. They kept a strict accounting of the money they received in the form of donations; in several cases, they simply gave the marijuana away.
But none of that mattered when Froeberg denied Herrick the right even to refer to Prop. 215 in his defense. In July 1998, the jury convicted him of two counts of selling marijuana but cleared him of the two remaining sales counts.
Herrick was transferred from the pristine confines of the brand-new Santa Ana Jail, where he had sat out the trial, to Wasco State Prison in the high desert of San Bernardino County. A few days later, he was placed in protective custody. To the rest of the inmates at Wasco, that meant just one of two things: Herrick was either a cop or a child molester. Since few cops end up behind bars, most inmates were betting on the latter. Herrick claims the Nazi Lowriders prison gang put a hit on his life. The gang only backed off after it realized that Herrick wasn't in the hole for molesting children but for selling marijuana.
"That was pretty frightening," said Herrick. "They never found out I used to be a cop."
Several months later, Herrick was transferred to Salinas Valley State Prison, where he was put in an open dormitory with 200 other inmates. "Anyone could hit whoever they wanted," he said. "There were articles coming out saying that I had been a cop. So I was very vulnerable."
After his arrest, Herrick urged Chavez to lay low—to drop the aggressive, high-profile distribution of marijuana and wait for the courts to clear up the legal confusion surrounding Prop. 215. Chavez refused and continued dispensing medical marijuana to members of the co-op. Then Chavez went even further, announcing the formation of a new medical-marijuana organization with the unwieldy handle "Orange County Patient/Doctor/Nurse Support Group."
Before Herrick's trial even started, police arrested Chavez in January 1998 on the same charges. A judge released Chavez a few days later with the admonition that he cease distributing marijuana through the co-op. Chavez still refused to stop. Along with Jack Schacter, a terminally ill friend, he continued to provide bags of medical marijuana to anyone with a doctor's note. In July 1998, the same month Herrick was sentenced, Chavez was arrested again, this time for selling two bags of marijuana to a pair of undercover narcotics detectives. Police also charged him with a federal crime: mailing marijuana to a co-op member in Bakersfield. In November 1998, Chavez was convicted and sentenced to six years in state prison. (He is currently serving out that sentence at the Susanville State Prison near Sacramento and was unable to be interviewed for this story because of a California Department of Corrections policy that virtually prohibits reporters from conducting telephone interviews with inmates. Armbrust failed to respond to interview requests for this story.)
It would be wrong to read Herrick's release from prison as a victory for Prop. 215. In fact, if anything, his successful appeal reveals something quite different—and rather ugly about the way in which "justice" was carried out in Herrick's trial. The court's decision to reverse Herrick's conviction centered on several slips of paper confiscated from Herrick's Santa Ana hotel room at the time of his arrest. They detailed how Herrick and Chavez had provided marijuana to members of the co-op in return for voluntary donations—evidence that might confuse a jury being asked to find Herrick and Chavez guilty of being garden-variety drug dealers. At the beginning of the trial, Armbrust succeeded in petitioning Froeberg to rule the donation slips inadmissible. But during closing arguments, Armbrust told the jury that Herrick's attorneys could have entered the missing donation slips as evidence if they had wanted to—a statement that was clearly false, since Armbrust himself had prevented the defense from doing so. Adding insult to injury, Froeberg failed to admonish Armbrust for misleading the jury at the most crucial point in the trial. In its unanimous ruling, the three-judge panel that reversed Herrick's conviction said Froeberg lent "tacit judicial approval to the prosecutor's falsehood," something that "cannot be dismissed as harmless."
Keeping a stiff upper lip, the district attorney's office says it won't appeal Herrick's recent reversal. "We found that there would be no practical value in retrying this case," said Tori Richards, the DA's spokeswoman. "Mr. Herrick has already spent as much time in prison as he would receive if he were convicted again."
Herrick is still fuming. "Armbrust has retired, but Judge Froeberg is still on the bench," he exclaimed, shaking his head in disgust. "Judges are supposed to be impartial. His days as a judge are numbered, in my opinion."
Herrick's rage is fueling a new ambition: to wreak havoc on law-enforcement officials who continue to go after legal Prop. 215 marijuana smokers by arresting them, confiscating their marijuana or ripping up their plants.
"We have to go on the offensive," Herrick said. "If you sue the police and take money away from them, they'll stop what they're doing. They don't put in their budget that 1,500 Prop. 215 smokers will sue their department for false arrest or confiscation of property. From my 15 years of experience working in law enforcement, I think the police will probably back off because that's in their best interest."
Herrick pointed out that there are already two California Supreme Court decisions that have ordered police to return marijuana to people carrying doctor's notes permitting them to grow and smoke cannabis. With that in mind, Herrick wants to establish a legal-defense fund for Prop. 215 smokers in California, something he hopes will pick up the battle where the vanquished Orange County Cannabis Co-op left off. "We need a cohesive group, whatever it is," Herrick said. "If we don't have one solid organization, this whole movement will go right down the tubes."