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Crucifying St. Peter

[whitespace] Peter Baez While spouting rhetoric supporting the Compassionate Use Act, local officials launch an attack against the man they once called a hero



Story by Eric Johnson
Photos by Christopher Gardner

'LUCY VALENZUELA" does not want to reveal her real name because she is afraid of being seen as a criminal. To control her almost constant pain, the 56-year-old San Jose woman, whose hands are disfigured from diabetic nerve damage and who walks with crutches, likes to smoke a bit of marijuana.

"The pills my doctor gives me make me confused, like I'm stumbling around," she says. "The marijuana just relieved my spasms. I could feel OK. It also took some of the stress off my life, of having to live this way."

Until recently, Valenzuela believed the government--via the will of the people--had agreed to allow her to do this in peace. Now she's not so sure.

Until last month, Valenzuela was a client of the Santa Clara County Medical Cannabis Center. When San Jose police arrested founder Peter Baez in March and seized its records, they decided that Valenzuela was not a legitimate patient. Now she is known in court documents as Buyer Number 5.

Valenzuela did not know that she was named in Baez's case until I interviewed her last Friday. She cried when she found out--but she was more angry than sad. "I feel like something was taken away from me," she said, choking back tears. "Not just my medicine but my rights. This was something very private to me."

She said she couldn't understand why Baez and his partner, Jesse Garcia, are being targeted.

"I don't know why the government would want to attack them," she said. "They came into this with good clean hearts. They put their necks on the line to help people. They don't know it, but I pray for them every day. I pray to God and the Virgin Mary. I have my santitos."

To become a santito, a person has to perform a miracle. It isn't enough to be a good person or to follow some kind of calling--sainthood requires the accomplishment of an impossible task, like making a desert rock spout water or curing a sick person. On Friday, May 8, when the doors of the Santa Clara County Medical Cannabis Center closed for good, it became clear that Peter Baez cannot do the impossible.

Baez did, however, attempt a miracle. He tried to implement the Compassionate Use Act, the law allowing the use of marijuana as medicine. And as medical-marijuana clubs throughout the state have discovered, that can't be done.

At least three agencies of the federal government are working to subvert the law, which was passed when Californians voted for Proposition 215. Dan Lungren's gubernatorial ambitions have set him on a crusade to thwart it. And local officials--because of political pressure and sheer cowardice--are now geared up to send the man who ran the only medi-pot dispensary in San Jose to prison. If convicted, Baez, who suffers from colon cancer, could be sentenced to nine years in prison.

The legal case charges that most of the patients at the SCCMCC did not have written doctors' notes recommending marijuana. All of them--including the five whom the DA has selected for prosecution--have documented ailments. The legal question focuses narrowly on whether their doctors officially gave them the green light to use marijuana.

Police and prosecutors also have launched a media campaign to depict Baez as a liar and a thief. They condemn him for betraying their trust and have charged that he ripped off his ailing clients--comparing his activities at the center to "street-level drug dealing."

The evidence which was presented to the grand jury to procure an indictment, however, suggests that while he may have violated the letter of an imprecisely written law, Baez was trying to support the spirit of its passage, to help dying and suffering people lead better lives. And he received very little help from the public servants and elected officials whose job, by voter mandate, was to make Prop. 215 work.

Two Faces of Government

THE COMPASSIONATE USE Act mandates that governments themselves "implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need." Since Prop. 215 passed, local law enforcement and elected officials have made assurances to the 66 percent of the citizenry who supported the bill that they would see that it was carried out.

Some, like assistant district attorney Karin Sinunu and former police chief Lou Cobarruviaz, stated their full support for the measure. Others were more reluctant, making it clear that while they did not believe in marijuana as medicine, they were willing to bow to the will of the people.

Lawmakers and police did, however, promise to keep a very close eye on how the law was implemented. Unlike those in other California cities--including San Francisco, Oakland and Santa Cruz, which developed a more or less relaxed attitude about enforcement--San Jose and Santa Clara County officials decided to closely monitor the way medical marijuana was dispensed.

They were pleased when Peter Baez approached them with his idea to form an unofficial partnership with the city to carry out the Compassionate Use Act. Baez, himself a cancer patient, had a reputation as a clean-cut do-gooder. He had been commended in 1993 by Mayor Susan Hammer for his volunteer work on AIDS, and he was a member of Gilroy's anti-graffiti task force.

Baez had spent years championing medical marijuana after developing a close relationship with Jesse Garcia, a Gilroy man suffering from AIDS. Following the passage of 215, Baez and Garcia had launched a guerrilla medi-pot dispensary, which they operated out of a car in the parking lot of Valley Medical Center.

After months of clandestine distribution, Baez and Garcia decided to open a legitimate dispensary. They had a feeling the best way to do that was to work closely with local law enforcement.

When the Santa Clara County Medical Cannabis Center opened its doors just over a year ago, local officials pledged to work with Baez. His subsequent efforts to get marijuana to sick people--and to do it by the book--won him much praise. At times, it did seem as though he were being canonized.

Karin Sinunu called him "the Eagle Scout of the medical marijuana movement." National media flocked to San Jose to profile Baez, lauding the local center as a statewide model. But, as it turns out, the official line of support for Baez did not run very deep.

Now, as pressure from the U.S. Drug Enforcement Agency and federal prosecutors heats to a fever, six California mayors are petitioning the feds to back off. Mayor Susan Hammer, a longtime friend of Baez's, declines to comment on the subject and refers all questions to the police. And the SJPD, through department spokesman John Carrillo, is hardly enthusiastic about abiding by the Compassionate Use Act.

"I don't know how long 215 is going to be valid," Carrillo said. "It is not legal under federal statute, and that takes precedence over California law.

"Currently, 215 was voted into effect. It is now currently law, and we must follow the law, so it will be allowed. But what I can tell you as the department spokesman is that the fate of 215 is in the courts."

Baez and Garcia both feel that they have been betrayed. They also think it is more than coincidence that acting chief Walt Atkins took over the reins of the department the very day of the SCCMCC raid.

"We had a great relationship with Chief Cobarruviaz," Garcia says of San Jose's recently retired chief. "Suddenly, Atkins comes in, and boom. What are we supposed to think?"

Atkins did not reply to requests for an interview for this article. But City Attorney Joan Gallo says that "there has been no philosophical change whatsoever" since Atkins took over. She points to the fact that this week, she presented an ordinance to the City Council which would make it easier for a cannabis center to operate.

However, she says pressure from the Clinton administration is making it almost impossible for the city.

"With the federal government taking the unreasonable position that it is taking, it is going to be very difficult for anybody to operate a legal marijuana dispensary," Gallo says.

Joan Baez, Peter Baez, Jesse Garcia
Give Pete a Chance: Joan Baez was on hand to support her cousin Peter Baez (left) and friend Jesse Garcia (right) during the official closing of the Santa Clara County Medical Cannabis Club early this month.

With Friends Like These ...

IN THE YEAR that the San Jose medi-pot center operated, the city offered Baez and Garcia little in the way of support for their pioneering operation, and then blamed Baez when the city decided that the experiment had failed.

The club's founders say that they had a one-way relationship with public officials. "We felt like we were putting ourselves and our patients at risk [by providing documentation and communication], and nobody would communicate with us," Garcia says.

In Baez's apartment in Gilroy, the two have a file folder full of letters requesting meetings with various officials, most of which never occurred. On June 23, 1997, for instance, they asked Mayor Hammer to consider adopting a resolution similar to one in Oakland that protects medi-pot dispensaries. On Sept. 5, they wrote to assistant city attorney Carl Mitchell regarding patients' concerns about the confidentiality of their medical records. On Feb. 2 of this year they asked Hammer, Cobarruviaz and others to help them contract with a local grower, so they could solve the thorny problem of transporting the pot, another issue not resolved in the wording of the law. They received no responses.

Instead, the city pushed the responsibility for dealing with the club on Sgt. Scott Savage of the SJPD narcotics division.

When I interviewed Baez and Garcia for another article last May, they both spoke highly of Savage. This unlikely trio--a narcotics officer and two medi-pot activists--were at the time working together to set up an indoor growing operation at the center's Meridian Avenue site (a plan that fell through because the center's landlord feared he'd lose his property under federal forfeiture law). In the months that followed, Baez even called Savage to turn in five people who had come to him with forged doctors' notes.

Baez's motives in playing it straight with Savage were not altogether saintly or even Boy Scoutish: He saw it as a matter of survival. The DEA was sending undercover narcs into every pot club in California and filing charges up and down the state. The SCCMCC was about the only club which could not be stung--a fact Baez credits to his strict patient-intake procedures.

But according to police and prosecutors, Baez wasn't nearly careful enough.

In October of last year SJPD officers picked up a man named Enrique Robles, a client of the SCCMCC, on a charge of possession. In his defense, Robles said that as a member of the center, the pot he was carrying was legal.

Sgt. Scott Savage called Baez to confirm that Robles was a client and asked Baez to give him the name of Robles' doctor. According to Savage's report, Baez hemmed and hawed a bit and then named two local physicians. Savage called both, and they denied having recommended pot for Robles.

The following Monday, March 24, Savage showed up at the SCCMCC's Meridian Street office with a half-dozen undercover officers. Savage went inside and asked Baez to turn over all of the center's files. Baez refused on the grounds of patient confidentiality, claiming that the center's clients who were dying of AIDS and cancer had a right to expect privacy. Savage produced a search warrant and placed Baez under arrest.

According to court records, Savage seized all of the center's patient files, a checkbook and check register, daily sales logs and the center's computer, as well as some marijuana and cash as evidence. Police left some marijuana at the premises, although the amount they left is in dispute.

After poring over the 270 patient files, Savage concluded that 25 percent of the center's clients "appear to not comply with the Compassionate Use Act." He then obtained a warrant to seize the center's bank account in Gilroy, which contained almost $30,000.

mourner Lighten Up: Clients at the Santa Clara County Medical Cannabis Center held a wake last month on the day the center closed.



Dealing the Dirt

AS A RESULT of this raid, Baez now faces seven federal charges: five for allegedly selling pot to five people who did not qualify under 215, one for allegedly operating a "drug house" and one for allegedly committing grand theft by accepting $705 per month in federal disability housing assistance.

Police and prosecutors also believe Baez stole money from the SCCMCC checking account. The press release that went out last Monday following a grand jury indictment says that "there is a large discrepancy, approximately $73,454, between documented sales to SCCMCC clients and the amount of money received by SCCMCC." It also says "there are $51,000 in checks written to Peter Baez for cash," and that "Peter Baez purchased a brand-new Toyota RAV 4."

The press release doesn't mention that all of this information was discovered because Baez--who was a banker for 10 years--accounted for every nickel that came in the door. Nor does it mention that every nickel of the alleged discrepancy was found in the center's bank account. Of course, it stands to reason that these details were left out, because the press release was circulated by Baez's prosecutors.

Baez still believes that if law enforcement officials had talked to him, if they had asked him to walk them through his books, they would have reached a different conclusion.

In fact, the center's books (copies of which were obtained by Metro) suggest that Baez used the $51,000 to purchase the center's marijuana--which had to be paid for in cash. A meticulous detail freak, Baez points to highlighted dated entries, each of which is cross-referenced to a purchase of pounds of "Yoli," "Boli" or "Mexican"--names of different grades of pot. He then produces another document that shows when and how each pound was distributed to patients.

He says he understands how Savage might have concluded there was a discrepancy between patient files and daily tallies. The daily tally sheets, he says, contain slash-marks for every eighth-ounce sold, regardless of the price the center charged. If a client bought an ounce and received a quantity discount, Baez made eight slash marks. Instead of paying eight times $60, or $480, however, the patient might have paid $300, and that is the amount recorded in the patient files, which were kept in dollars.

"Maybe that was a sloppy way of doing it," Baez now concedes, "but it isn't criminal-sloppy. It's just busy-sloppy.

"More than 90 percent of our sales were cash," Baez adds. "If I had wanted to steal that money, why would I keep records of it at all? Why would I put it into a bank account where I know it could be found?"

He answers every charge in similarly exhaustive detail. When asked about the RAV4 which the DA says he bought with stolen money, he produces another file-folder containing a bank statement from South Valley Bank in Gilroy. It shows a $8,000 wire transfer on July 21, 1997, from Samuel Baez, his father--a retired U.S. Navy chaplain. Three days later, the register shows a check written to Gilroy Toyota. The difference between the $8,000 and the price of the RAV4 was made up by trading in his 1995 Pontiac Sunfire convertible, he says, reaching for more paperwork to prove it.

Garcia, however, points out that even if he and Baez had chosen to take money from the center, in the form of salaries, that would have been legal. He says the pair was only using about $300 to $400 per month to cover work-related expenses.

"We were volunteers," he says, "but there is nothing in 215 that says a person has to be a volunteer to operate a center. It's one thing that we're being asked to account for allegedly illegal activities. It doesn't seem appropriate that we're also being asked to account for legal activities."

The legal issue is not so much that Baez stole money--although the DA insists that he did. It's that he sold pot to people who didn't qualify under the law.

All of the talk about Baez's alleged misuse of SCCMCC's funds is a smokescreen, he believes, designed to turn public opinion against him and against the medical-marijuana movement in general.

The Letter of the Law

AT THE HEART of the actual criminal case lies a real contradiction stemming from the fact that Prop. 215 puts the state of California's laws at odds with the laws of the U.S. government. Proposition 215 states that patients must have a doctor's recommendation, but prescribing marijuana puts doctors in violation of a federal law.

A document released by the California Medical Association in January invokes the law and tells physicians in the state to steer clear of prescribing pot. Issuing such a recommendation could make them ineligible to participate in the Medicare and Medi-Cal programs, costing them serious money, and could also result in their losing their licenses to write prescriptions for pain medication, according to the CMA.

The memo reminded doctors that "the federal government, after the passage of Proposition 215, indicated that it would seek sanctions against physicians who recommended marijuana to their patients." It then described one of a half-dozen lawsuits orbiting around 215, which culminated in a court ruling that doctors may only recommend marijuana to a very narrow set of patients, including those suffering from AIDS and cancer.

However, the most frightening section of the letter, to many physicians, warns them against issuing any written recommendations. In a needle-threading paragraph, the CMA clearly tries to find a way for doctors to provide their patients the letter which the law says they need, but points out that "a strong argument can be made that such a letter ... constitutes aiding and abetting--a violation of federal law.

"It should be noted that the court did state that a physician can be subject to punishment for aiding and abetting the cultivation or possession of marijuana," the paragraph concludes.

Finally, the CMA document tells doctors to "avoid communicating with a marijuana distributor, such as a buyers club, to confirm a recommendation made to a patient in an office dialogue."

Obviously, this creates an impossible situation. Dr. Martin Fenstersheib, public health officer with the county health department, tried to intervene.

A couple of weeks after the CMA issued its letter, Fenstersheib sent out a memo detailing guidelines for recommending medical marijuana, as well as forms for doctors, patients and dispensaries like SCCMCC. The county's guidelines and forms stopped short of a full-blown recommendation. Instead, they called on doctors to state only that they "discussed the medical benefits of marijuana" and that they would "continue to monitor" the patient.

Baez and his attorneys insist that all of the center's patient files meet these two criteria: a physician's knowledge of the patient's marijuana use and willingness to continue to see the patient.

But the DA maintains that only 70 of the center's 240 patients were legit.

In a court affidavit, Savage reported that many of the center's files "contain no written medical recommendations, although some have notations of oral recommendation." In a subsequent report, Savage writes that he called many of the doctors from whom the center claims to have received oral recommendations, and that those doctors deny ever having heard from the center.

Dr. Tod Mikuriya, former director of marijuana research at the National Institute of Mental Health, has reviewed all five of the patient files associated with the charges against Baez. Mikuriya provided Baez's attorneys with a report of his analysis of each patient's file.

He writes that the file of Rick Robles, whose arrest led to the police raid on SCCMCC, shows that he had a broken back, and that his doctor "was aware of use" of marijuana. It also shows that the doctor was contacted by phone to confirm that Robles was a patient.

Savage reports that the doctor denies ever receiving a call. SCCMCC's phone records, however, document a call to Robles' doctor's number on Oct. 22, 1997.

Buyer Number 2's physician, according to Mikuriya, "appears to have accepted [the patient's] use of cannabis and tried to avoid putting himself at risk by prescribing Marinol [a THC pill]." A third doctor noted that his patient "requests that I consider providing a prescription for marijuana." These files, according to Baez and his lawyers, prove that the SCCMCC was abiding by 215's requirements.

The case of Buyer Number 5 ("Lucy Valenzuela") appears from Mikuriya's notes to be borderline. While her file contained a diagnosis of a condition protected by 215, there does not appear to be any doctor contact. However, Mikuriya notes that Valenzuela "expressed concerns that MD may not sign because of fear of reprisal."

In each case, the center clearly was forced to exercise discretion. In each case, Mikuriya concludes, the two standards set up by Fenstersheib had been satisfied.

"Each and every individual appears to suffer serious chronic illness that qualifies for protection by Health and Safety Code 11362.5 [the Compassionate Use Act]," Mikuriya writes.

"The apparent denials encountered by police investigators from treating physicians are clearly responses to appropriate fear and concern for the medical licenses based upon information provided them by the general media and by the California Medical Association."

Jesse Garcia
Hugs Not Drugs: Jesse Garcia, co-founder of San Jose's cannabis club, says the saddest part of the club's closure is that ailing clients who depended on the club will have nowhere to turn.

Ending the War on Drugs

BEYOND THE bureaucratic Catch-22s of the Compassionate Use Act is a simple fact: For the past 30 years, the government has considered marijuana to be unmitigated evil. So have many law enforcement officers, elected officials and doctors. Claiming marijuana as a miracle cure is pure heresy.

Jeremy Griffey believes marijuana saved his life. A 44-year-old AIDS patient, Griffey credits the banned herb with miraculous curative abilities--only some of which have been verified through research.

As many AIDS sufferers do, he speaks matter-of-factly about the details of his ailments. Smoking marijuana, he says, controls his nausea and restores his appetite so he can keep food down and take his medications. Eating pot muffins, he says, stops his diarrhea. Laughing, he almost guiltily admits that it also elevates his mood. Without it, he says, he often became depressed.

Griffey says he began using pot medicinally while caring for his partner of 21 years, who died of AIDS-related illnesses in 1992. He believes marijuana kept his partner alive for a year and made the last year of his life bearable.

George Hanamoto, another medical-marijuana user, also believes the stuff works like magic. The 57-year-old Morgan Hill TV repairman is afflicted with glaucoma, arthritis and low-back pain. He says he started smoking marijuana for his glaucoma but found that it also cured his pain.

"It happened like that," he says, snapping his fingers. "The very first time. Couldn't feel the pain at all. It was just gone." As a bonus, he says, his doctor took him off physically addictive eyedrops after he'd been smoking pot for a few weeks.

A veteran nurse at a local hospital, who asked to remain anonymous, credits the survival of her own mother and sister, both of whom have cancer, to marijuana. She says she became a believer when she saw it work for her brother, who died of cancer last year.

These stories, which are ubiquitous among users of medical marijuana, drive Drug War hawks batty. Assistant district attorney Karin Sinunu, who alone among local officials makes it clear that she does not consider Baez "a common criminal," says the charges against him are not an attack on the concept of medical marijuana. "I wholeheartedly support the spirit of 215," she says. Nevertheless, her office presses forward with its case.

Talking to Denise Rabbe, one of Sinunu's deputy DAs, it is clear that two worlds are clashing in San Jose. The deputy assistant DA seems fixated on the details that, she believes, show Baez broke the law--but how else could she possibly see the case? The Compassionate Use Act may be a crack in the ideology which holds that marijuana is the Devil Weed, but law enforcement officials are a long way from loosening up loopholes so that it can be implemented.

Peter Baez may have committed sins against the state. Perhaps he was overzealous in making marijuana available to people who he believed desperately needed it. Maybe he failed to follow the letter of the law, as interpreted by the DA's office, and even declared some expenses that don't match its definition of "business-related." But if there is betrayal involved in this case, it more likely came at the hands of officials who set Baez up to fail and then crucified him when he did.

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From the May 28-June 3, 1998 issue of Metro.

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