Reefer madness

Late in the afternoon of Friday September 28, 2001, just as 11-year-old Caroline Schafer was arriving home with her brother, Cody, and her father, she noticed to her surprise a line of dark, late-model SUVs and pickups completely filling the long driveway leading up to her hillside El Dorado County home.

“My first thought,” Caroline said, “was that my mother had invited some friends from her church group over for a visit.”

She asked her father, Dale Schafer, who was driving, what was going on.

Schafer didn’t know, so he pulled over to the side of the road and stopped.

Caroline and Cody slipped out the passenger door and began to make their way up toward the house. They hadn’t gone but a few yards when two men clad in dark windbreakers suddenly jumped out onto the roadway. The men squared off and assumed a firing stance. Cody caught a glimpse of something in their hands.

“All I saw was a flash of black,” said the 8-year-old Cody. “It was pretty dark, and I couldn’t tell what it was.”

The children heard a man shout, “Freeze!”

A long moment passed. Then, from the gloom at the side of the road, a voice said, “Lower your weapons. It’s just kids.”

The men straightened and relaxed. As they did, Caroline could see, emblazoned in large yellow letters on their black mesh jackets the letters: “DEA.”

To her this meant nothing.

It was not until she found herself sequestered with her brother—and her stunned and shaken mother—and saw for the first time the butt end of a Glock semi-automatic pistol on an agent’s hip, that she determined the “flash of black” her brother had seen was a gun, and that it had been pointed directly at both her and her brother.

“That’s when I realized it wasn’t a church group,” she said, “and I started to get really scared.”

She had reason to be.

Attorney Dale Schafer and his wife, Marion (Mollie) Fry, M.D., live in a rambling house outside the tiny foothill town of Greenwood, California. It’s pretty far off the beaten track, and traffic is virtually nonexistent. So when the official-looking vehicles pulled into Fry’s driveway that afternoon, she went out to meet them.

“They threw me down on the ground, on my face,” Fry recalls. “They had a search warrant. They handcuffed me and then they left me laying in the dirt for 20 minutes while they secured the house.”

The DEA agents turned the house upside down. They pulled everything out of the closets. They went through all the kitchen cabinets. They took all the computers from the children’s room.

The federal officers were looking for marijuana. Outside, they found six mature plants in a greenhouse, and one more growing on the hillside. They also found 27 immature plants—none more than a foot or so in height—and about 20 pounds of what they called “processed marijuana.” The agents were also looking for cash. They found $1800 in an envelope, but since that was also filled with receipts for little league dues and the like, they left it alone.

But mostly what they were looking for were records—all the records, in fact, of the small business that bore the innocuous title of “The California Medical Research Center,” or the CMRC. At the same time the DEA agents were searching the house, others were going through the CMRC offices, eight miles down the road in Cool.

The CMRC had been open since August 1999. Fry and Schafer—advertising themselves as an “Attorney-Physician Team"—had specialized in evaluating patients for the use of cannabis under California’s Proposition 215, “The Compassionate Use of Marijuana Act.” In the two years since the CMRC opened, they had built up a practice of over 6000 patients.

This activity was supposedly permitted under the Act.

Although the possession, cultivation and use of marijuana remained illegal in California, Proposition 215 had created an “exception” to the law. Under the Act, any “seriously ill” Californian would be able “to obtain and use marijuana for medical purposes,” as long as a licensed physician had determined it would be beneficial to their health.

Neither the patient nor the patient’s primary caregiver would be subject to criminal prosecution as long as the amounts of pot were consistent with “reasonable personal use.” The physician wouldn’t be prosecuted for recommending it.

“I thought the law was real,” says Fry.

The federal government, however, doesn’t believe in exceptions.

In their view, marijuana was just “green dope” —different from “white dope” (drugs like heroin, methamphetamine and cocaine) only in color. Although penalties varied from substance to substance, they all remained illegal under the Controlled Substances Act of 1970.

The government had a recent Supreme Court decision to back up its position.

In May 2001, the Court had ruled in Oakland Cannabis Buyer’s Cooperative v. United States that nothing like a “medical necessity defense” would be allowed in federal court. Anyone accused of the possession, cultivation or use of marijuana could not raise the Act as a defense. This would presumably include any physician who had recommended the drug.

According to Anne Pings, the assistant U.S. prosecutor who was assigned to the case, the CMRC was therefore nothing more than “a criminal enterprise, permeated with fraud.” The Search Affidavit cited a number of violations: Not only was the CMRC “selling certificates,” Schafer himself was “selling marijuana hand-to-hand,” and was even soliciting his clients to buy cannabis-growing kits. With this as a basis, the U.S. District Court issued the warrant.

By the time the DEA agents left the home, they had carried off all Schafer’s marijuana and 6000 medical and legal records of the CMRC. They left the couple’s home and offices in such disarray that it took hours to clean up.

Neither Schafer nor Fry were arrested for drug violations, but their legal problems were just beginning.

The inspiration to open the CMRC came by fate and circumstance.

“I was diagnosed with cancer,” Fry explains.

A trim, attractive woman in her mid-40s, Fry’s spare features and regular frame recall her New England roots. But there is something disconcerting about her, something not immediately evident at first glance.

Mollie Fry has no breasts.

Fry’s chest is a featureless plain. Disdaining to wear any sort of prosthesis, she is perfectly comfortable in T-shirts and tank-tops. Fry is a cancer survivor, and she does not bother to hide it.

In late 1997, she entered the hospital for what she thought was routine breast reduction surgery. Halfway through the procedure her doctor walked out of the operating room and grimly told her waiting husband that his wife had breast cancer.

Fry began a regimen of heavy chemotherapy. She endured the pain, the nausea, the loss of hair—but she lived.

To ease the effects of the chemotherapy, her doctor gave her Marinol, an anti-nausea drug that uses THC—the active ingredient in marijuana—as its base. It was too slow.

“When you’re violently ill, you can’t wait an hour for a medication to metabolize. You want relief now,” she says. She tried smoking marijuana, and it worked.

She asked her physician, Dr. Steven Quadro, to write her a note. He was reluctant to put anything in writing, but he did give her verbal approval. With this, she and her husband visited a cannabis club in the Bay Area.

The club would sell it to her, but they were charging high prices—$50 or more for 1/8 oz.—and they’d only sell her 3/8 oz. at a time. She was using up to 2 oz. per month, and it was a five-hour drive there and back. To supply his wife, Schafer (who uses pot only sparingly) ended up drifting toward the black market.

“When your wife is lying naked, weeping in a pool of vomit on your shower floor, you don’t ask questions. You just go get it.” It was a stopgap solution at best.

“When I finally found myself sitting in a parking lot one night, waiting for some guy to show up, I said, ‘Hey, there has to be a better way.’ “

Schafer doesn’t look much like a drug dealer. Well over 6 feet tall, with a neatly trimmed beard and gold-rimmed glasses, he looks more like a slightly rumpled history professor. His manner is scholarly, bookish even—but he is by no means averse to the occasional wry observation.

Schafer already knew the local police officers and deputies from his trial work. He knew doctors too, since he had occasionally defended them in court. The Compassionate Use Act had already been in existence for two years, so one night he and his wife sat down at the dinner table and came up with the idea for the CMRC.

Their concept was simple: Schafer would screen patients for eligibility, and his wife would verify them. If they passed, the patient would be given a note. The note would supposedly protect them from prosecution.

There were obstacles. For one thing, Schafer wasn’t sure how to go about it. California said medical marijuana was legal, the federal government said it wasn’t. Schafer needed guidance.

He started with Bill Lockyer, the state attorney general. At the time, Lockyer was trying to bring some order to the chaos Proposition 215 had created. Although the aims of the Act were clear, its language was not. Most problematic was that nowhere did it explain how much marijuana was consistent with “reasonable personal use.” The task of deciding that was falling to the local district attorneys, and they in turn were looking to Lockyer for direction.

Lockyer suggested that Schafer work with his associate, Special Assistant Attorney General Dave DeAlba. With DeAlba in tow, Schafer met with David Thornton, the chief enforcement officer of the State Medical Board.

Thornton was in the same quandary as Lockyer. Not a doctor himself, he was trying to determine what quantities constituted “good practice,” and what ailments should or should not be considered “legitimate medical purpose.” The Act was vague, and there was little available literature. Thornton says he thought Schafer was sincere, but he could offer only minimal guidance.

Schafer also talked to doctors. Dr. Tod Mikurea, a Berkeley physician, had been recommending cannabis to his patients since 1991. Mikurea availed Schafer of his experience, and showed him a certificate he was using. When Schafer opened the CMRC, he modeled his certificate after Mikurea’s.

Schafer also looked at case law. He discovered six instances where defendants had used the Act to justify their activities. It was a narrow sampling, but it showed that the law was still being defined. Meanwhile, he built a greenhouse and started growing pot for his wife.

In the late summer of 1999, the CMRC opened its doors. Schafer already maintained a law office in Cool, so the couple didn’t need a new location. They ran an ad in the Gold Panner newspaper, put up a site on the Internet, and waited for patients to show up. Pretty soon, they did.

It also didn’t take long for the police to get wind of their activities.

One day, Fry spotted what she took to be a sheriff’s deputy prowling around her home, snapping pictures. She immediately called the department and told them, “Don’t waste another dime investigating us. If you want to know what we are doing, come out and talk about it.”

The department sent out Detective Tim McNulty, from the Western El Dorado County Narcotics Eradication Team, or WENET. Schafer explained about his wife, and McNulty said he’d have to check with his boss—El Dorado County District Attorney Gary Lacy—to see if Schafer was legal. Soon after, McNulty told Schafer that Lacy thought he was “in compliance.” By the time of the DEA raid two years later, McNulty had witnessed Schafer both plant and harvest two full crops of marijuana plants.

Meanwhile, Fry was seeing patients.

The offices of the CMRC don’t look much different than any other medical office. A young woman sits behind a reception desk, answering the telephone. There are some toys on the floor for children to play with, pictures of sailboats on the walls, a stack of National Geographic magazines to read while you wait.

One patient—who asked to remain nameless—describes her visit to the CMRC: To begin with, she had to have medical records. Without those, she couldn’t come in. Since she had undergone 10 years of treatment for a back injury, she was given an appointment. Upon arrival, she met with Heather Fry, Schafer’s 25-year-old daughter, who was working as Schafer’s legal assistant. Heather told the patient that since she was engaging in a “legal consultation,” all her records and conversations would be protected by “the attorney-client privilege.” After viewing a 40-minute video where Schafer explained the law, she was sent in to see Fry.

Fry spent an hour with her. The doctor questioned her about her ailment, and conducted a standard neurological exam. She reviewed the medications the patient had been taking—a witches’ brew of Vicodin, Atavan, Flexoril and Wellbutrin—and suggested how cannabis might reduce her reliance on these drugs. The patient was charged $200 for the consultation. Since she was indigent, Fry halved it to $100.

“My primary concern is always the overall health of my patient,” says Fry, “and the biggest risk to that is often incarceration.”

Schafer admits he sold marijuana—but never at the office.

Prior to the Supreme Court decision in May, 60 or so of their patients had designated Schafer as their “primary caregiver” under the Act. Schafer had hired a man to work in his greenhouse, and he had planted enough to supply these patients.

Those who were poor were supplied for free, according to Schafer. The rest were charged $80 per ounce—one-fifth the club price—to cover growing expenses. After the Supreme Court decision, he stopped this, he says.

He laughs at the accusations that he sold growing kits.

“Of course we did,” he says. “The whole idea was to get our patients away from the black market, and away from the police.”

In the last two years, he says he sold about 15 kits. He had hired a disabled veteran to build a plywood contraption that came complete with fan, timer, hydroponic wick system and a 430-watt grow light. He sold this for $450.

Fry chuckles. “We were selling them the cow, not the milk.”

As soon as the story of the raid hit the news media, the telephone at the CMRC started ringing off the hook. Mostly it was patients, and they were worried. Why did the government want their files? Why weren’t Fry and Schafer arrested? Most of all, they wanted to know how much danger they were in.

“I was shocked when I heard the news,” said one patient who didn’t want to be identified. “I was afraid I was going to jail.”

She explained that since she was disabled, part of her housing was paid for with HUD funds. She could be evicted if she were discovered using “illegal drugs.” She feared she might become homeless, or worse.

Schafer didn’t know what to tell his callers. And he was worried about the information in the medical files.

Fry had been conducting a research study to find out who was using medical marijuana, and why. Her study was based on 32 points, ranging from simple demographics (age, sex, abode, employment, etc.) to what she calls “psycho-social indices” (family relationships, marital status, history of substance abuse if any, etc.).

She had wanted to publish the results, and had even entertained the idea that one day the Journal of the American Medical Association might pick it up. After all, she had a degree in biochemistry, and had taken her medical training at UC Irvine. She had examined over 6000 patients, more than enough to be statistically significant. She hoped to shed some light on a world that for years had been shrouded in shadow.

In her published study, of course, no names of her patients would be revealed.

“I guess I was incredibly naive,” she says.

Schafer, on the other hand, knew that if the government got their hands on the patient files, they would have a virtual roadmap to the personal habits, history and usage patterns of each and every patient they had seen. Not to mention their names.

Schafer owed it to his patients to fight for their privacy. He hired a veteran lawyer out of San Francisco named J. David Nick. “Nick is smart, he’s tough enough to keep chewing away—and he’s done it before,” says Schafer. “That’s why I chose him.”

As soon as Nick got the case, he filed a motion to have all the records returned.

In late October, the litigants and their lawyers met before U.S. Magistrate Gregory G. Hollows in the United States Courtroom in downtown Sacramento.

In his written arguments, Nick had claimed that the files were protected by the attorney-client privilege. Anne Pings countered that since Schafer had rendered his advice “in contemplation or in furtherance of a crime,” the attorney-client privilege should not apply. The CMRC was just a “criminal drug enterprise,” argued Pings, set up for no other reason than to allow people to buy marijuana. She called Schafer’s activities “an affront to the practice of law itself.”

Before the hearing, Fry felt confident. She had brought her children to the courthouse, and before the proceedings began, they had played around a ring of marble chairs that plumb the center of the rotunda. They’d looked at the Scales of Justice, and Fry had explained their significance.

“I thought we were on a Justice field trip,” she says. “I couldn’t believe that the United States would ever permit the files to be opened. I thought the Constitution would protect us.”

Schafer was more realistic.

“I was pretty sure the government was going to allow some intrusion into the files. I just didn’t know how much,” he says.

The hearing got underway and after batting a few questions back and forth between the litigants, Hollows got to the point: Who was the target of the government investigations: Schafer and Fry, or their patients?

Pings was forced to admit it was Schafer and Fry.

Then why did the government need all the files? Since virtually everything Schafer and Fry were doing was illegal under federal law, wouldn’t the information in one or two files suffice to prove that?

Pings didn’t have an answer and in less than an hour, Hollows ended the hearing.

Afterward, Fry was subdued. In court, Nick had argued that since Proposition 215 was “the will of the people,” the federal government had had no right to intervene. He had even been so bold as to suggest the federal law might be wrong.

But Hollows had responded by asking, “If the people of California say heroin is a good thing, does that make it right?”

When Fry had heard that, her sanguinity had disappeared.

“I could see our arguments were falling on deaf ears,” she says. “ ‘Oh, my God,’ I thought to myself. ‘What is happening to our country?’ “

Two days later, in a closely reasoned 28-page finding, Hollows denied Nick’s motion.

Hollows did not grant the government unimpeded access, however. The records were to be handed over to a “Special Master"—an independent attorney agreeable to both parties—who would release only “relevant information.” To some extent at least, the records had been protected.

Hollows had not remained entirely immune to Nick’s entreaties. In answer to Nick’s contention that the law might be wrong, Hollows had written: “Advocacy directed at the asserted lack of wisdom in the law is to be directed at its makers.” In other words, if you don’t like the law, change it.

The sense they had won a partial victory didn’t last long. A week later—out of public view—Judge Garland E. Burrell Jr. reversed Magistrate Hollows’ decision. Burrell ruled that all the files—including all the computer information—were to be immediately released to the DEA.

The records were to be given to a “taint team” —a group of lawyers who were to have “no future role” in the investigation, according to DEA spokesman Richard Meyers. This team would survey the files to “protect privileged information.”

Asked what would happen if the team were to find that any of the patients themselves had engaged in any marijuana violations, Meyers responded, “These activities still remain illegal under federal law.”

Nick immediately appealed the ruling, but the effect on the CMRC was devastating. The phone stopped ringing, people stopped coming by, and when anyone did call, it was a usually a patient seeking reassurance. Before the DEA raid, the CMRC had been evaluating about 10 new patients per day. Now it dropped to one or two.

The year before, Schafer and Fry had earned a little less than $68,000 between them. They had taken out a second mortgage to keep the CMRC up and running. All of a sudden they were having money worries.

They reduced staff hours, but with their name all over the news media and the threat of federal indictment hanging over their heads, it was hard to promise patients anything.

Recently, as Schafer sat in his easy chair watching a football game, he talked about the future. His wife was cooking dinner upstairs while Caroline pirouetted around the kitchen. Cody was pitching fastballs into the laundry basket.

Schafer has no idea whether he and his wife will be arrested. Pings has told them that if they are, they will be allowed to surrender rather than being taken off in handcuffs. He is thankful for that, but he worries about his wife.

“If Mollie were put in prison, I think it would break her heart,” he says. He can’t even begin to think about how the children might react.

Even though the CMRC continues to evaluate patients, Schafer fears it’s just a matter of time before that stops. He knows that up in Oregon the federal government is moving against physicians who assist terminally ill people, and has heard about the recent federal raid at the Los Angeles Cannabis Resource Center, which had enjoyed strong support from the Los Angeles authorities. He sees the federal handwriting on the wall.

Schafer paused for a moment before continuing:

“You know, the saddest thing about this, is that when Californians passed Proposition 215, they were trying to protect the rights of the sick and the dying. And now, the very law that was meant to protect them—is being used to persecute them."