42 pot plants = $4,000 fine

No jail time: Olympia man fined by court, plans to appeal October felony conviction

November 25, 2010 

High Anxiety

ERIC RISBERG — AP

OLYMPIA - A judge fined a wheelchair-bound Olympia man $4,000 Wednesday for growing 42 marijuana plants in his home, but he imposed no jail time.

A jury convicted William Kurtz, 58, in October of felony counts of possession of marijuana over 40 grams and manufacture of marijuana. He has no prior felony criminal history and uses the wheelchair because of a medical condition.

Before trial, Kurtz’s attorneys fought to be allowed to present a medicinal-marijuana defense to the jury, but Thurston County Superior Court Judge Carol Murphy did not allow it. Prosecutor Scott Jackson argued that Kurtz did not have a medicinal-marijuana card in March, when Thurston County Narcotics Task Force detectives found the plants, as well as more than 15 ounces of packaged marijuana, in his home in the 11800 block of Champion Drive Southwest.

One of Kurtz’s attorneys, Douglas Hiatt of Seattle, said he thinks the law allows patients to argue a medicinal-marijuana defense even if they did not possess a medicinal-marijuana card at the time of their arrest. Hiatt said Kurtz’s case is one of “first impression” and predicted that his conviction will be overturned on appeal.

Jackson disagreed, saying that to legally possess marijuana in Washington, a medicinal-marijuana patient must have a signed statement from a doctor stating that the patient can medically benefit from using marijuana. Jackson also has said that the amount of marijuana Kurtz was growing and possessed vastly exceeded the amount that a patient is allowed under state law.

At trial, Hiatt tried to introduce to the jury a letter from Kurtz’s doctor that describes Kurtz’s “hereditary spastic paraplegia” and his medical benefit from using marijuana.

The letter from the Olympia physician, Peter Taylor, was not allowed as evidence. It reads it part that Kurtz “has had progressive loss of function related to this familial neurologic condition which has left him wheelchair-bound and with severe tremors. 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.”

Kurtz has said he uses marijuana to manage constant pain from his condition.

Under state law, the medical use of marijuana is allowed for patients diagnosed with several medical conditions, including “spasticity disorders.”

There was no evidence Kurtz was selling the marijuana he grew, Jackson said.

Kurtz briefly addressed the court before his sentencing.

“I apologize to society and anybody else for anybody’s inconvenience,” he said.

During Wednesday’s sentencing, Jackson asked Murphy to sentence Kurtz to 20 days of house arrest with electronic home monitoring.

He suggested to Murphy that the jail has to make special provisions in accommodating an inmate who uses a wheelchair, and given those provisions and Kurtz’s circumstances, jail was not necessary.

Murphy could have imposed a jail sentence of as much as six months for each offense.

Hiatt said outside court that a Seattle attorney will file an appeal of Kurtz’s conviction within 30 days. Hiatt also decried the fines that Murphy ordered Kurtz to pay.

“This is a joke; this guy’s indigent,” he said.

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

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