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AIDS patient charged with possession of cannabis. Claims he uses it as medicine. "Not so fast," says South Dakota...
Tom Faltynowicz (falti-NO-vich) is a 43-year-old gay rancher in southern Meade County in South Dakota. He has also contracted AIDS, the symptoms of which he alleviates with cannabis. He was diagnosed as having AIDS, based on T-cell count, in 1990. His prognosis at the time was, “maybe a few years.”
Last September, Meade County officials were told that Tom was growing “marijuana” in his trailer house situated near his parents’ house at the ranch headquarters a few miles north of Rapid City, So. Dak.
Tom welcomed the police who came to investigate, Meade County Investigator Michael Walker and So. Dak. Division of Criminal Investigation Agent John Griswold, and immediately admitted growing cannabis to treat his condition. He invited the officers into his house to see his grow operation.
The evidence list says there were five plants and about a quarter-pound of dry “marijuana.”
Faltynowicz pled to possession of more than two ounces but less than 1/2-lb. of “marijuana.” That’s the lowest order of felony; maximum two years plus $4000.
The court, Circuit Judge Jerome Eckrich, will sentence Tom on April 21, 2008.
Tom’s AIDS specialist, Dr. Traub, of Rapid City, will speak at his sentencing hearing. The state’s attorney has already said he will not object to anything Traub has to say. Everything I have seen regarding this case leads me to believe no one wants to punish Faltynowicz. On the other hand, the law is the law.
Tom’s lawyer, Joe Ellingson of Spearfish SD, says the judge can impose anything from no sentence to two years, plus fines and probation. As a practical matter, the best he can probably hope for is a suspended jail sentence without probation. The probation officer has already told him that even Marinol is a probation violation, because there is no provision for any THC to be allowed to show up in drug tests. A probation violation means lockup for whatever the period of the suspended sentence. Probation means jail, unless they somehow make an unlikely exception for Tom.
Faltynowicz says he will not suspend use of the medicine that makes life livable for him. Any period of lockup would threaten, and perhaps end, his life.
Therefore I am asking you to write a letter to Judge Eckrich, asking him to impose the least restrictive sentence within his authority.
Faltynowicz’s criminal record lists a misdemeanor conviction for possession of cannabis in 1195, and one in 1996. Other than that, nothing.
The letter should contain some documentation of medical benefit from cannabis, especially for appetite stimulation in AIDS wasting syndrome, nausea-reduction and alleviation of anxiety and desperation (to the extent alleviation of those conditions can be documented). A personal anecdote about a family member or acquaintance is pretty powerful, too.
A subtle appeal to the judge’s humanity and consciousness of public sentiment could be included. We want him to have some idea (without overt threat) of the possible negative publicity resulting from putting a dying man in jail for using medicine that works.
A better way of putting that is to say that we want him to think of the possible positive publicity he can gain by acting humanely, something the legal system is not known for in these instances.
Among many other arguments to advance the thesis that no punishment is merited for Tom Faltynowicz’s actions is the obvious presumption that Tom has probably smoked cannabis regularly, probably nearly daily, since at least 1995. That assumption can be made after a rudimentary examination of the evidence. Tom confirms that he learned soon after his AIDS diagnosis was made that cannabis alleviated the ill effects of the disease and its treatment.
Yet, he has not been accused of ANY illegal behavior except mere possession. There isn’t even a hint of theft or violent behavior. There is no reason to believe that he will engage in such behavior in the future.
The only humanely permissible “correctional” sentence is one that most closely resembles no sentence.
You are welcome to call Tom Faltynowicz to ascertain any facts you might feel you need.
Tom tells me that he has prescriptions for the following medication:
Speriva, for emphysema
Marinol, for nausea and sedation
Address your letter:
Honorable Jerome Eckrich
Please mail your letter to Tom’s lawyer:
Joseph Ellingson (questions?) 605-642-8787
Also please email me, Bob Newland, a copy of your letter. Thanks.
Bob Newland's letter to the judge is below.
Faltynowicz Case Documents
14 March 2008
Honorable Jerome Eckrich
Circuit Court Judge
Re: Thomas Faltynowicz, Crim. #07-1031
Everything in this letter is an attempt to influence the court to exercise utmost leniency towards Tom Faltynowicz. Having pled guilty to a Class 6 felony, the best sentence for Tom is that sentence which most resembles no sentence.
There is a well-recognized tradition in common law: It is no crime for a man to apprehend, sans permission, a boat belonging to another man in order to save a drowning person. Common sense allows us to make the logical leap to a man acting in his own best interests.
I’ll assume the court believes, at least, that Tom believes cannabis is beneficial to him. There is no doubt of that for me. Absent an identifiable harm done some non-consenting person, where is the “damage to society” we hear about in his act.
If the court is inclined to believe that Tom actually realizes a benefit from cannabis, there are plenty of data to support the court’s conclusion. My own experience watching cannabis immediately quell Matthew Duchenaux’s violent paralyzed limb tremors and relieve his back spasms was enough to convince me. Since seeing that near-miraculous transformation, I’ve also watched a young woman go from writhing in pain with a migraine to a tearful smile 30 seconds after she took one puff of a joint. I hereby plead guilty to distribution in that case.
Matthew was denied the right to present a medical necessity defense by Judge Lieberman in Sioux Falls. The young woman wants to be a schoolteacher, where she will be denied the right to tell her students that cannabis has medical benefits.
There can be no deterrent value in imposing a sentence that either separates him from his medicine immediately or after his first probationary urinalysis. No one will stop doing what he believes necessary to sustain his own life, especially when he and thousands and thousands of others like him can document evidence for the truth of their beliefs.
There can be no more arrogant a phrase in jurisdictional lexicography than “no medical value” when applied to a member of the the plant kingdom. To apply that cynical appellation to cannabis is doubly insulting when every single government-approved over-the-counter or prescription drug has a higher ingestion-resultant death rate than cannabis. There is no record in medical history of a death caused by cannabis ingestion.
For that matter, there are no known instances of a cannabis-only smoker contracting lung cancer. The implications of that are obvious.
I appreciate the court’s indulgence. I am available for further documentation of my assertions should the court like to see it. I shall be out of town from March 18 through April 2, but I should have access to email during that time. My email address is on the letterhead.
I hope the court is not troubled at this moment over what is the right thing to do.
Very best regards,
On April 28, 2008, Judge Eckrich sentenced Tom (below).
South Dakota’s marijuana laws put Meade County Judge Jerome Eckrich in an untenable position during a sentencing hearing on April 28, 2008. He managed to handle it in a compassionate, though still unjust, manner.
The defendant, Tom Faltynowicz, a rancher in southern Meade County, had been arrested in October for growing marijuana, having been turned in by his daughter after an altercation. Faltynowicz uses the herb to manage the nausea and loss of appetite caused by the chemical cocktail he is prescribed for AIDS.
In a plea agreement negotiated between Faltynowicz’s lawyer, Joe Ellingson, and Meade Co. State’s Attorney Jesse Sondreal, Tom pled guilty in January to the lowest-grade felony possession of marijuana, for which the maximum sentence is two years in the penitentiary and a fine of $4000.00. He was in court to be sentenced.
Faltynowicz’s doctor, Doug Traub, of Rapid City is an internal medicine specialist who’s been in the business for over 30 years. He appeared telephonically to testify for Tom. He said that he’d treated Tom for over ten years and that during that time Tom’s health had improved somewhat, rather than having declined as might be expected of an AIDS patient with the “indicators” Tom’s blood exhibited in 1998.
Maintaining a healthy diet is a principal problem among patients who must take certain medicines loaded with toxic chemicals, such as AIDS sufferers and those undergoing chemo-therapy for cancer, Traub explained. “I prescribed Marinol (synthesized THC, the main psychoactive in marijuana) for appetitie stimulation. We also discussed smoked marijuana, which many patients find more effective, with less negative side-effects than Marinol. I was aware that Tom was using marijuana for his wasting syndrome.”
“Tom has plainly benefited from using marijuana.” Dr. Traub said this in a courtroom in South Dakota, under oath. South Dakota law proclaims that marijuana has “no accepted medical use in the United States.”
Judge Eckrich asked, “Is smoking marijuana clinically necessary for Mr. Faltynowicz?” "Yes," Traub replied.
“Is there a mechanism by which we can differentiate, in a urinalysis, as to whether a person is smoking marijuana or using Marinol?” The quandary Eckrich was addressing with this question is that Marinol use is banned by South Dakota probation departments, because its indicators in urine are the same as those for smoked marijuana. "None that I know of," Traub answered.
Marinol is legal for doctors to prescribe and for patients, at least those not in jail or on probation, to use. Doctors may recommend marijuana use, but they are barred from actually delivering it to a patient or writing a prescription for it.
Ellingson began to make an argument clearly based on the intra-contradictory nature of the situation, but was cut off by Eckrich. “I’m not going to legalize medical marijuana out of this courtroom today.” He then sentenced Faltynowicz to eight months in the penitentiary, suspended except for seven days to be served in the Meade Co. jail during the next 90 days; a fine of $400.00; supervised probation for a year, during which he was not to possess or use illegal drugs; and subjection to arbitrary search at any time. Generally, a probation violation results in institution of the primary sentence.
“Does that mean I can’t use Marinol?” Tom asked. “That’s not what I said,” Eckrich answered, “I said no illegal drugs.” The probation department officer in the courtroom took note.
What Eckrich had done was legalize the use of marijuana for this particular convicted and to-be probation-supervised criminal, as long as he didn’t get caught with it.
Earlier, during Dr. Traub’s testimony, defense attorney Ellingson asked if his advocacy for therapeutic marijuana was professionally difficult. “Socially maybe,” Traub replied, “but as physicians, we use the tools available.”
So do cops and lawyers and judges. Every person in the legal system who touched this case acted as if they did not believe that marijuana has “no accepted medical use.” The result was a farce played out with a pawn whose life hung, and still hangs, in the balance.
Knowing that a man with a fatal disease used a commonly available herb to sustain his life, cops, lawyers and a judge arrested him, charged him with a crime, prosecuted the crime, and sentenced him for the crime of possessing the herb and using it to sustain his life. Granted, the result was one that Tom can survive, with luck.
He’s still stuck with the same problem he’s had since first being diagnosed with AIDS twenty years ago; an essential element in his therapy is illegal to obtain, have or use. He will use it. What will happen if he slips up or has a little bad luck, and gets caught with the one medicine he can’t have under the terms of his probation?
Will Judge Eckrich then put him in prison for eight months, where the state will have to bear the weight of his $4000 per month legal medicine bill while denying him the medicine that balances the toxic drugs with beneficial appetite stimulation? Dr. Traub said in court that there was no chance that the prison system could deal with Tom’s condition.
Would a probation violation then amount to a short “life in prison” sentence?
The So. Dak. legislature needs to deal with the patently absurd characterization of marijuana, in law, that it has “no accepted medical use.” Until it does, we will have to continue to watch farcical contortions like these--that illuminate the absurdity of the law--played out in court. It is unconscionably cruel to deny an effective remedy to sick, disabled and dying people.