Judge allows Olympia man to present evidence of “medical necessity” in fighting marijuana charges

A 62-year-old Olympia man diagnosed with a chronic neurological disorder will be allowed to present evidence in support of a “medical necessity” defense in his fight to win an acquittal of charges he unlawfully grew 42 marijuana plants at his home in the 11000 block of Champion Drive SW, near Scott Lake, a judge ruled Monday.

Thurston County Superior Court Judge James Dixon also vacated William Kurtz’s felony conviction of unlawful manufacture of marijuana during Monday’s hearing, based on the Washington Supreme Court’s 2013 decision that a trial court erred in his 2010 jury trial.

In a 5-4 decision in September, the Supreme Court ruled that Thurston County Superior Court Judge Carol Murphy erred during Kurtz’s trial because she would not consider whether the evidence supported Kurtz’s proposed medical necessity defense.

Dixon cautioned that his ruling only states that Kurtz should be allowed to present evidence to a judge in support of including a medical necessity defense as a potential jury instruction. It will be up to a trial court judge to decide whether the law supports allowing a jury to consider such a defense, Dixon added.

“Has Mr. Kurtz met the threshold requirement providing enough information to make the argument at trial that he’s entitled to an (jury) instruction?” Dixon said. “The answer is yes.”

Kurtz, who uses a wheelchair to get around, is diagnosed with familial spastic paraparesis. He has a signed declaration from a Washington physician stating that the suffers from the rare condition, which results in “intractable pain,” sensory loss, loss of balance, joint swelling, headaches and general weakness, according to the doctor.

“(O)ne of the requirements of the medical necessity defense is the requirement that the harm sought to be prevented by the controlled substance act is outweighed by the benefit to the patient,” Dr. Greg Carter states in his declaration to the court. “I do not understand how this would work with marijuana because I do not see the harm to be prevented. Marijuana is one of the safest therapeutic options that exist and there is no potential for overdose, a constant concern when utilizing opiate therapies.”

Thurston County Deputy Prosecuting Attorney Olivia Zhou, who argued Monday against Kurtz being allowed to present evidence to a judge in connection with his now pending felony case, said the prosecutor’s office has yet to decide whether it will take Kurtz’s case to trial, or dismiss it.

Kurtz’s case is tentatively scheduled to go to trial in September. Kurtz’s attorney, Douglas Hiatt, said Monday that his client is very sick, and should not have to go through the ordeal of another trial.

After a jury convicted Kurtz in 2010, Judge Murphy fined Kurtz $4,000, but did not require him to serve any jail time. During Kurtz’s 2010 sentencing hearing, Deputy Prosecuting Attorney Scott Jackson said there was no evidence that Kurtz was selling the marijuana he grew at his home.

“How does society even benefit from this?” asked Kurtz. “For three years now I can’t refinance my house.” Hiatt said his client has recently suffered from a series of heart attacks, and Kurtz said he finds it a struggle to come to court.

Since the start of 2013, possession of less than an ounce of marijuana has been legal for adults over 21 in Washington. Washington also has medical marijuana authorizations. At the time of Kurtz’s arrest in 2010, he did not have a medical marijuana authorization card.

Hiatt said that if the prosecutor’s office takes Kurtz’s case to trial, he is confident he can win an acquittal from a jury.

In Dixon’s ruling from the bench Monday, he noted that the case is an emotional one, and an interesting one from a legal standpoint.

“The law has changed dramatically since this case originally went to trial,” he said.