Sunday, January 13, 2019

Respondent's Brief and Our Reply - My Adventures in Weed Court Pt. 7

Things are finally moving forward with my Appeals case!
See My Adventures in Weed Court 1234, 5 & 6

We received the Respondent's Brief last month, which was filed on December 19th, 2018 by one of the Ada County Prosecutors assigned to my case, Enrique Gutierrez. Read Respondent's Brief Here

Throughout the brief, there are many instances where these prosecutors are saying that there isn't evidence that I was experiencing pain while possessing marijuana at the places and times alleged. 

It seems to me that the understanding of Interstitial Cystitis and the "chronic pain" is lacking by the prosecution and likely by the court, previously. 

Without possessing Marijuana, I am in pain every minute of every day. If I possess marijuana, it always for the treatment of that pain, especially for times it becomes extremely severe.

On pg. 8, it says that "Dr. Aggarwal's affidavit speaks of no specific threat of immediate harm", but then says I was diagnosed with Interstitial Cystitis - which is always an immediate harm, at all times, because there is intense pain every time my bladder is used in my urinary system. In medical terms, the urinary function is an involuntary function, a function I have no control over.

The expanding caused by emptying and refilling of the bladder causes immediate pain, all day, every day, it doesn't matter what the date. This is the "chronic" state of the pain. I am continuously in pain, even when using Cannabis. 

It's the degree of pain that is changed through the use of Cannabis.

Same paragraph says "Defendant admits to using exclusively marijuana to treat her illness since 2009 and for general pain relief since 2004; Defendant states that she has only gone a couple days to a week at most without it in 12 years, since she first began using it as medicine."

And then goes on to say that I "essentially self-report that the chronic nature of the pain does not mean that the pain is constant or imminent."

The quote they put from the report to Dr. Aggarwal says "I have good days, bad days..."  

The chronic pain being treated generally from 2004 - 2009 is the pain from the Interstitial Cystitis. I have never had any other type of chronic pain. 

It took seven excruciating years to diagnose the IC, after my symptoms of extreme and constant pain started in 2002. 

The term "have good days" means that I have less pain because of less variables and because of more access to Marijuana. 

Not because the condition itself has less pain, or no pain at all. 

Dr. Aggarwal's statement of "There is a variation in the range and intensity of symptoms" was a generalized statement about patients with IC, and not about me specifically; but even the range and intensity of the symptoms means that there are still symptoms and that symptom in Interstitial Cystitis is predominately pain - a threat of harm. 

At the bottom of pg. 8 and into pg. 9, it says I stated that I use Marijuana to address a variety of needs and references my preferred strain for symptom relief of things like fatigue and sleeplessness. I think they are trying to say that these needs are not relative to the chronic pain. 

Lack of energy comes from the chronic pain caused by the inflammation of IC. Pain itself takes away physical energy. Sativas give back energy.

Not sleeping in the night, comes from the chronic pain. I cannot sleep because I am in pain from the IC. Indicas allow me to sleep through the pain at night. 

These needs are not random needs, but needs that arise directly from the threat of pain and are direct symptoms of my condition.

On pg. 9 it states that the trial court reasoned that the Defendant used Marijuana as a general course of treatment. 
The course of treatment is a treatment to end the immediate threat of harm that comes with IC. The court erred in its reasoning that the treatment was general. 

The treatment is specific to the individual symptoms and threats of harm that comes with the condition, including the threat of depression and suicidal ideation caused by living with such extreme chronic pain.

On pg. 10 it goes on to say that I failed to show that the same objective of pain relief could not have been accomplished by a less offensive alternative, and that my objective was actually to protest laws in Idaho rather than pain management. It also says I would have lit the joint if I had been in pain and that there isn't evidence to show I was in pain at the protests.

My possession of Cannabis at the capitol to protest was the same as my possession at my house in Idaho (the prosecution actually tried to argue at the Motion in Limine hearing that I could have possessed it at my house and not at the capitol, but the judge wouldn't even touch that argument.)

Both locations, I possessed Marijuana for treatment of chronic pain. I simply used my medicine as a prop in my protest. It could have been a bottle of Oxycotin instead. It is medicine, and just as with any medicine, any consumption of Cannabis into my system is to maintain a level of medical (Cannabinoid) compounds in my system. 

Whether that happens at my house or the Capitol.

It was not my doing to not be able to light the joint at the capitol, or even try to light the joint at the capitol. I was following the orders of police to not light it. I try to follow the law, it is usually there for good reason.

The only law I am willing to break is in this regard - the possession of marijuana and related paraphernalia; because of the necessity in my life. 

I believe it's important to cooperate with police during our protests, and we work to maintain a good rapport with them. We invite them to our event every year and miss them when they do not attend. They are good people whose lives are just as affected by Marijuana prohibition as mine, just not in all of the same ways. Marijuana prohibition affects us all.

My intent was to light the joint, and if they had told me they weren't going to stop me, I would have lit it at both events. 
Additionally, I had a Cannabis oil filled capsule that I wanted to take at the 2nd protest and was told by police I could not consume it. The only reason I did not, was because I was asked kindly by the Troopers to not consume it, and thanked when I did not.

Cooperating with ISP Trooper Bradalyn Crapo
ID M4MJ Smoke Out - January 1, 2016

Protesting and Possessing Cannabis for pain are not mutually exclusive, and the symptoms of IC mean that I must possess all day, every day, no matter where I am. Whether that is at the Capitol protesting, or at the grocery store, shopping. 

The threat of immediate harm also comes from the threat of sporadic and sudden onset of the severe symptoms of my condition, which means I must possess the medicine at all times, not only to maintain for the constant "lesser" pain of my condition, but to have immediate access to pain relief because of the immediate threat of harm of the more severe but sporadic symptoms.

Also, regardless of the protests, or the intent to use Cannabis to protest in the last two cases - the first case from 2015 was not to protest. I was a passenger in a vehicle, and the medicine found in my purse. I was acquitted of the charge that led to the finding of the Marijuana in my purse - obstruct & delay - making the search illegal.

Because the cases were enjoined, even if the court didn't err in not providing jury instruction for the protest cases, it erred by not providing the jury instruction of necessity defense for the first case - in which I possessed Cannabis because of the threat of immediate harm that comes with Interstitial Cystitis. 

The brief goes on to talk about the "legal" treatment options, and that I admit that I have not tried everything "less offensive" that is available to me. It mentions surgical and pharmaceutical options, including a morphine implant I was offered in 2009.

In regards to surgery being available, this argument equates to saying it is less offensive for doctors to slice me open, gut me so that I have to spend my entire life in a wheel chair with a bag out side of my body to collect urine, reroute my urinary tract, or rebuild it using parts of my bowels - which can include complications that lead to even more harm than the condition itself; than it is to use a plant that would not alter my life in such an extreme way.

The same can be said for the pharmaceuticals, as well as for the morphine implant. All of those treatments carry a threat of increased harm, including death, when compared to Cannabis and breaking the law. The necessity arises in treating my condition in a manner that doesn't complicate the condition, which would bring around it's own threat of immediate harm.

They also bring up that I refuse to follow a stricter diet, but this is not true. I utilize food restrictions, physical therapy and exercise, as well as Cannabis. I haven't had an orange, pineapple, or a glass of lemonade or cranberry juice in 10 years because it would kill my bladder. 

Citric Acid is also one of the primary ingredients that exacerbates my illness. It's like pouring lemon juice on an open wound. It's also a primary ingredient (as a preservative) in MOST products. 

I dare everyone to look in their cupboards, pantries, refrigerators, and closets, and see exactly how many products contain citric acid and other "acid" preservatives - even your household products like laundry detergent, body wash, and shampoo that are absorbed by the skin. 

Figuring out if every single thing I want to consume contains ingredients like this is extremely stressful, which also causes pain. The diet for IC is so strict, and the stress that comes with determining it all so great, that physical complications of intense pain arise from trying to follow it to a T; especially when these hidden ingredients, or even the PH balance of various tap waters, can cause complications of intense pain. 

However, I follow it mostly, and use Cannabis when I cannot. 

Additionally, following the strict diet doesn't take away the symptoms of IC, which will cause pain no matter what I eat because it's a condition of my bladder that causes pain every time the bladder is used (all day, every day). 

Diet doesn't solve the problem of pain in IC - the wrong foods exacerbate the symptoms, not cause them. I would have to not eat or drink at all, in order to not use my bladder at all, for diet restrictions to be completely effective by itself in complete pain relief.

On pg. 17 it touches on me "settling for slight pain relief over a long period, rather than complete pain relief for a short period." 

This is in reference to the lack of access to Marijuana that I have in Idaho, and the laws I must break because of my need for pain relief. Having to make a small amount last for a longer period of time - rationing a medicine because of lack of access to the medicine. 

Of course, it would have been more beneficial for me to have complete pain relief - all the time - but because of the legalities of Marijuana, the access to the correct quality and quanity was not available in Idaho. I can't just go get a refill for a prescription like normal people. In Idaho, I had to settle for the slight pain relief, or I would have had no pain relief at all because the medicine was all gone quickly, attempting to achieve complete pain relief.

It also says that the side effects of Marijuana are similar to those of legal treatments, like dry mouth, etc. However, while some of the side effects listed are the same, the other side effects of the legal drugs that they say are less offensive, are side effects which Cannabis does not have - extreme physical side effects, including the side effect of DEATH that can come with opiate based medicines. 

I definitely find it more offensive to be forced to take toxic drugs that cause extreme health problems, be implanted with a morphine device and be forced to be an opiate addict in the midst of an nationwide opiate epidemic. 

While opiates did provide some short-term relief in the beginning, in medicine, opiates have never been intended to be a life-long, ongoing treatment for pain; which is what is necessary for my condition because it is a life-long, progressive condition. Taking opiates long-term can create it's own threat of immediate harm because of the harm it causes the body and the liver. 

A harm that is not found in long-term Cannabis use.

The nature of my condition is such that finding the best treatment of pain for the individual patient is the only treatment. Every patient is different, and Cannabis is the best treatment I have found to treat the specific threats of harm in my condition. 

The fact that I have pain, both physically and mentally, is the threat of immediate harm, whether that threat is the actual condition itself, or it's ongoing complications that arise with the symptoms.

Essentially, the prosecution says that it would be less offensive for me to undergo numerous invasive surgical procedures and fill my body with toxic pharmaceuticals with extreme side effects - less offensive than the offense of me breaking an inhumane, 100 year old law that is based on racist lies and fear based propaganda. 

And that I should try all those things BEFORE breaking that stupid law. 

I would be ashamed to have my name attached to these arguments. These words will be preserved throughout the future generations, as they look back on the illogical war against sick and disabled people that is Marijuana prohibition. 

Wrong side of history, dudes. 

I guess we all have choices to make. Even if the choice is to accept a paycheck for putting your name to words that make you look like ignorant & apathetic people in the eyes of history. 

If you can't see that Cannabis is the future of our world, you either just aren't paying attention - or you are making a cognitive choice to ignore it. 

My attorney, Dennis Benjamin, of NEVIN, BENJAMIN McKAY & BARTLETT and I worked together to create a reply brief, which was filed January 9th.

My favorite line: 
The State has NOT shown that Ms. Frank's possession of Marijuana caused any harm.

This statement is directly aligned with the message we express at our annual Idaho Moms for Marijuana New Year's Smoke Out protests:

My attorney and I are now discussing whether or not to request oral arguments. We have 14 days from when the Reply Brief was filed to ask for a hearing. If that occurs, I will post an update.

Thank you for your continued love and support.💕

More to come...

In the meantime, we are still working to #LegalizeIdaho and finally change these archaic and harmful laws. 

A new petition is coming (follow here), we have a Lobby Day organized for February, and the 4th annual Boise Hempfest is schedule for April 20th!

There is a lot going on and a lot more to do in the coming years.
It's going to be a lot of fun!

I hope you will join us!

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