A 43-year-old dairy farmer will walk into a Charles County courtroom tomorrow and try something legal experts say has never been tried before in Maryland -- argue that he needs the marijuana he was growing to combat the effects of being HIV positive.
Jerome E. Mensch was arrested Nov. 12, 1993, when deputies from the Charles County Sheriff's Office arrived at his farm, in Welcome, with a search warrant and found enough marijuana for about 10 cigarettes.
Mr. Mensch cooperated fully, showing deputies the charred remains of his marijuana cigarettes, his small stash of about 10 grams. He also took them to his back yard, where he had four marijuana plants, according to prosecuting and defense lawyers.
He told the deputies, who were tipped off to his marijuana by a former roommate, that he used the drug to combat the weight loss, nausea and vomiting he had suffered since testing positive for the human immunodeficiency virus in 1987.
He was charged with possession of a controlled dangerous substance and, because of the marijuana plants, with manufacturing a controlled dangerous substance.
This means the farmer who rises at 4:15 a.m. each day to milk 150 goats, who has chaperoned White House children's tours and held 4-H clinics on his farm, could get up to five years in prison and pay $15,000 in fines for using a drug he thinks is saving his life.
"I think it's absurd," Mr. Mensch said in a brief interview. His lawyer, Andrew Dansicker, said the case will likely be tried in March.
But Mr. Dansicker, a Washington lawyer defending Mr. Mensch for free, said the outcome may depend largely on whether Charles County Circuit Judge William W. Bowling approves a motion to allow him to argue before a jury that his client's use of the drug was a medical necessity.
Mr. Dansicker said he intends to present testimony tomorrow showing that marijuana is the most effective medicine his client can find to ease his suffering.
Legal experts say that it is the first time such a defense has ever been used in a Maryland drug case.
Mr. Dansicker cleared a preliminary hurdle Sept. 27, when Judge Bowling decided that he can argue the medical necessity defense in tomorrow's preliminary hearing.
To convince the judge, Mr. Dansicker must prove that Mr. Mensch's life is at risk, that there were no reasonable alternatives and that the remedy -- the marijuana use -- is not disproportionate.
Mr. Dansicker says he plans to call several witnesseses, including medical experts, who will discuss the benefits of marijuana use by AIDS patients, and Mr. Mensch's doctor, who will testify how the drug has improved his patient's health.
Dr. Douglas Ward said that, based on the improvements he saw in Mr. Mensch since his patient started smoking marijuana in 1992, he wishes he could prescribe it to his patients with AIDS.
"What it does is, it makes him better able to respond to other medications," Dr. Ward said.
Prosecutors concede that even if convicted, it is not likely Mr. Mensch would spend any time behind bars, given his condition.
"He doesn't seem like that bad of a guy, but we can't have people just going around growing marijuana," said Charles County Assistant State's Attorney Patrick Devine, who is prosecuting the case.
According to court papers, Mr. Mensch started using AZT in 1987 after he was diagnosed as being infected with the virus that causes acquired immune deficiency syndrome.
The AZT worked for several years but began losing its effectiveness in 1992, when Mr. Mensch began suffering bouts of numbness, diarrhea, nausea and fatigue, according to a memo Mr. Dansicker submitted to the judge.
He switched to another anti-viral drug, ddI, but that caused the same symptoms, and also led to appetite loss.
"His friends and family told him that he was becoming pale and thin, and he became frightened that he might be entering the potentially fatal "wasting syndrome" stage of the HIV infection," according to the memo.
Mr. Mensch -- who had lost 25 friends to AIDS -- began using marijuana in 1992, which eliminated the nausea, helped him regain weight and get back to farming "working a routine 15-hour day," the memo says.
While Mr. Mensch may be the first person in Maryland to try the "medical necessity" defense, others have succeeded with it elsewhere:
* In Panama City Beach, Fla., Kenneth and Barbra Jenks, who were stricken with AIDS, were sentenced to "comfort and care for each other" after a Bay County Circuit Court judge found them guilty of growing and using marijuana to curb their nausea, vomiting and weight loss.
A Florida appeals court later overturned the convictions, holding that the couple's medical necessity claims were valid.
* In San Diego, a jury acquitted Samuel Skipper of drug charges after he argued that he needed the marijuana he had grown to combat the same effects. After the highly publicized trial, the San Diego City Council passed a resolution recommending that people with AIDS be allowed to use marijuana to ease their
symptoms.
Robert Randall, president of the Alliance for Cannabis Therapeutics, a Washington-based patients rights group, said 35 states have passed laws recognizing the beneficial effects of marijuana use for cancer and glaucoma patients.
But because it is classified by the Drug Enforcement Agency as a controlled, dangerous substance, he said he is one of only a handful of glaucoma patients and multiple sclerosis patients who get marijuana from a DEA-supervised farm in Mississippi.
Diagnosed with glaucoma in 1975, Mr. Randall became the first American to receive marijuana legally. He credits the drug with saving his vision.
Mr. Randall said he feels government officials have stymied research efforts in the area because of the stigma attached to marijuana use.
"There's still such a feeling of fear out there," he said.
Dr. Donald Abrams, a professor at the University of California at San Francisco, said that he has been trying for two years to win federal approval to launch a study of marijuana's effects on AIDS patients.
"There's a lot of anecdotal information, but it's never definitively been studied," he said.