A 43-year-old dairy farmer charged with growing marijuana in his yard may argue to a jury that he needs to smoke the herb to combat the ravages of AIDS, a Charles County judge ruled yesterday, the first time the "medical necessity defense" has been allowed in Maryland.
Circuit Judge George W. Bowling granted Jerome E. Mensch's request to use the defense at his trial on charges of unlawful manufacture and possession of marijuana.
"It's a big first step," said Susan Goering, legal director of the ACLU, which is assisting Mr. Mensch in the case.
Mr. Mensch, of Welcome, was arrested Nov. 12, 1993, after Charles County sheriff's deputies arrived with a search warrant and found four marijuana plants in his yard and about 10 grams of marijuana, enough for 10 cigarettes, in his house.
Ms. Goering called the judge's ruling "courageous."
"There's evidence from experts that marijuana could have beneficial effects for some people and it's being denied them," she said. "It's important for the legal system to deal with these gray areas."
But the prosecutor in the case minimized the effect of yesterday's ruling. He said he is still confident of winning a conviction.
"All we have to do is establish that there were legally viable alternatives available to him," said Francis Jones, deputy state's attorney in Charles County.
He said Mr. Mensch's argument, that he needs the marijuana to stay healthy, is "like saying you took some crack cocaine because you had a headache."
Mr. Mensch told Judge Bowling at a hearing Dec. 19 that the marijuana he began smoking about a year before his arrest worked better than prescription drugs to alleviate the weight loss and nausea he experienced from being HIV positive.
"I refused to be a victim. I tried to take the bull by the horns," he said, describing his reaction to testing positive for the virus that causes AIDS in 1987. He admitted to growing marijuana, saying he did it "because it was free, because it was at my home and because I needed it."
In his ruling, Judge Bowling said Mr. Mensch met the three requirements necessary to use the medical necessity defense: it was done to avoid an evil, there was no other means of avoiding the evil and that the remedy was not disproportionate to the evil to be avoided.
His lawyer, Francis A. Vasquez, Jr., said yesterday that Mr. Mensch may have convinced the judge in his own testimony.
"I think the fact that Mr. Mensch got up and testified convinced the judge that he was sincere, that this wasn't a lark for him," Mr. Vasquez said.
He said Mr. Mensch likely will ask for a jury trial.
No trial date has been set, but both sides said they anticipate one in April.