Olympia man with marijuana guilty, says jury

COURT: Attorneys don't put up defense

October 28, 2010 

OLYMPIA - Jurors convicted an Olympia man Wednesday of growing pot in his home.

Defense attorneys for William Kurtz, 58, said outside court that the outcome might have been different had Thurston County Superior Court Judge Carol Murphy allowed them to argue a medical marijuana defense.

Under protest, defense attorneys Douglas Hiatt and David Lousteau did not participate in the jury trial. They declined to put on a case, made no opening statements or closing arguments, and did not cross-examine prosecution witnesses.

“Isn’t it one-sided if you’re not allowed to testify on your own behalf?” Kurtz asked outside court Wednesday, his speech audibly slurred by his illness, known as hereditary spastic paraplegia.

Kurtz, who uses a wheelchair, said he thinks Washington’s medical marijuana law was enacted for people like him, and said “unfortunately, it’s not being applied to people with medical conditions.”

Hiatt said the judge erred by not allowing jurors to hear a medical defense. He said they will appeal to a higher court.

But county Deputy Prosecuting Attorney Scott Jackson said Murphy made the right call.

During his closing argument Wednesday, Jackson repeatedly told the jury to separate their beliefs about whether marijuana should be legalized from the existing laws, which dictate that marijuana is an illegal controlled substance.

In an interview in Jackson’s office after the verdict, he said, “We prosecute people that violate the law.”

He called Hiatt “a crusader” for the legalization of marijuana. “He was here to push a political agenda.”

Hiatt said Kurtz should not have been found guilty of unlawful possession and unlawful manufacture of marijuana because he’s a qualifying medical marijuana patient with a debilitating illness, under Washington law.

He shared a letter written by Kurtz’s physician, Peter Taylor of Olympia.

“He has had progressive loss of function related to this familial neurologic condition which has left him wheelchair-bound and with severe tremors,” the letter states. “Unfortunately, there is no treatment to prevent or cure this condition, and we are left to manage his symptoms, including chronic daily pain which is severe.”

The letter was not admitted as evidence under Murphy’s ruling barring a medical marijuana defense.

Jackson, the prosecutor, said that at the time of Kurtz’s March 1 arrest at his Champion Drive home, he was not in possession of valid documentation from a doctor identifying him as a medical marijuana patient. Jackson said common sense and case law dictate that a defendant must be in possession of such documentation at the time of his or her arrest, and not obtain it after the fact, as Kurtz did.

Hiatt disagrees. The defense attorney said he believes a Washington State Supreme Court opinion from January states that it doesn’t matter whether the defendant obtains a doctor’s written authorization before or after his arrest.

The portion of the Washington Supreme Court’s concurring opinion in State v. Fry cited by Hiatt was authored by Justice Tom Chambers. It reads in part, “In my view, if the defendant is able to present a written authorization from a Washington-licensed physician stating that the defendant has a qualifying condition, then he should be allowed to move forward with the defense. Whether a defendant can meet the burden of proving by a preponderance of the evidence that he in fact has a qualifying condition will of course depend on what is presented at trial to the trier of fact.”

Jackson said Hiatt is misinterpreting that case. State v. Fry involved a defendant who already had a written authorization at the time of his arrest, Jackson added.

The way state law is written, Jackson said, it’s difficult to determine who is a valid medical marijuana patient.

His motion that successfully barred Kurtz from a medical marijuana defense stated that the large amount of the drug found in Kurtz’s home exceeded what’s expected for personal use. According to testimony during the trial, detectives found 42 marijuana plants and more than 15 ounces of packaged marijuana in 15 plastic bags March 1.

Kurtz said Tuesday that he grew marijuana for personal use and did not sell it.

Hiatt said Wednesday that because the case will likely be heard by a higher court, he will ask Murphy to delay Kurtz’s Nov. 10 sentencing.

Kurtz said he has no prior criminal record. His possible sentencing range is between six months and one year in jail, Hiatt said.

Jackson said Wednesday that he has not made a final decision on a sentencing recommendation to the judge.

“I’m not seeing any lengthy jail sentence for Mr. Kurtz,” Jackson said.

Jeremy Pawloski: 360-754-5465 jpawloski@theolympian.com

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