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Medical Marijuana:

When is there mercy?

Abe McCants was 47, husband, father of seven children, and dying of liver cancer. The following court transcript tells his story.




ABE MCCANTS, Defendant.

Case Nos. 97 CM 003836, 98 CF 001966, 98 CM 004052


DATE: March 18, 1999

BEFORE: The Honorable ANGELA BARTELL, Presiding Circuit Court Judge


LYN OPELT, Assistant District Attorney, appearing on behalf of the State of Wisconsin;

MICHAEL ALESCH & REBECCA REPAAL appearing on behalf of the Alternatives to Incarceration Program;

JORDAN C. LOEB, Attorney at Law, appearing on behalf of the defendant, and the defendant in person.

THE COURT: This is State of Wisconsin versus Abe McCants, 98 CF 1966, 97 CM 3836, 98 CM 4052.

Today's appearances, please?

MS. OPELT: The State appears by Assistant District Attorney Lyn Opelt. Also present from Alternatives to Incarceration are Rebecca Repaal and Mike Alesch.

MR. LOEB: Abe McCants appears in person represented by Jordan Loeb.

THE COURT: I'm just reviewing Ms. Repaal's letter from March 12. Give me just a moment. All right. Ms. Opelt, have you reviewed that letter?

MS. OPELT: Yes, I have, and I've spoken with all the parties involved.

THE COURT: Do you have a suggestion for the Court?

MS. OPELT: This is one of those very difficult and impossible situations, but given Mr. McCants' behavior while he has been in the Alternatives to Incarceration Program, I am recommending that he be revoked from that program and placed back in the jail.

I know that Mr. McCants has, is not well. He is on morphine I believe every three hours, but I'm very concerned about the fact that he has had these positive UAs [urine drug testing] through the program and he has not been forthright or honest with either Mr. Alesch or Ms. Repaal about why he is having those positive UAs; plus just his behavior in general has been such that he feels for whatever reason he doesn't have to follow the rules of the program. I know that he is-

THE COURT: His convictions are for what? Would you remind me what the charges are?

MS. OPELT: You know, I don't have the CF case. That's Ken Farmer's case, but I assume it is some drug conviction.

MR. LOEB: No. It is an obstructing. It was amended to obstructing.

MR. MCCANTS: I don't have a drug conviction on my case at all.

MR. LOEB : Okay.

MR. MCCANTS: I don't.

MR. LOEB: I know.

THE COURT: There appears to be two resistings or obstructings, and there appears to be one disorderly conduct.

MS. OPELT: That is correct. And I believe that his ending date for the jail sentence according to Ms. Repaal would be June 26th. He started his jail sentence on January 16th, and then it was modified as you can see from the letter on February 19th.

THE COURT: Mr. Loeb, are you able to tell me whether it is resisting or obstructing?

MR. LOEB: It's resisting-

THE COURT: It's resisting?

MR. LOEB: - from my understanding.

THE COURT: Each of them?

MR. LOEB: Yes.

THE COURT: Mr. Alesch or Ms. Repaal, is there any statement that either of you wishes to make?

MR. ALESCH: Just to agree with Ms. Opelt. It has been very difficult. And I understand Mr. McCants' situation, but we have program rules, and we have to enforce those rules no matter what the situation. I mean we know that's what the Court expects when they put someone in our program.

It's very disconcerting that Mr. McCants has not been honest with us. He comes up with various reasons why he tests positive. He not only tests positive, but he puts them off the scale over at the Huber Center for marijuana, and he gives us various reasons. We believe that he is using marijuana. He just is not straightforward about that, so he has been very difficult to deal with.

THE COURT: Thank you. Mr. Loeb?

MR. LOEB: Thank you. I've been speaking with Mr. McCants' doctor.

THE COURT: Who is his doctor?

MR. LOEB: Dr. Felipe Manalo. On short notice, I wasn't able to get Dr. Manalo to come here and be able to speak to the issues, but I don't think it takes a whole lot of imagination to reiterate and understand his point. From a medical perspective, the biggest problem in Abe's life is that he is dying of cancer. The record shows and the letters that have been forwarded to the Court confirm that.

The December letter was suggesting that they predicted six months to live. That is obviously not a 100 percent forecast. It is a doctor's best guess given his experience with cancer. The doctor's response when I talked about this is why are people concerned with the marijuana. Why are people concerned with what seemed to him to be trivial rules? Of course I work in a criminal justice system, and I'm able to explain to the doctor that's exactly what the criminal justice system is suppose to be concerned with. So we have a clash right there in terms of two legitimate sets of priorities.

The medical priority is to try to keep Mr. McCants comfortable while he is ill. He is more than ill. He is dying. I've known him for two months. In looking at him. I'm watching him die. I don't know him personally, but it is obvious to me that he is deteriorating in front of us. Unfortunately I've had a lot of experience to know that people get real optimistic.

In this case if only we could get him out of jail and get him home, things would be better. That was probably naivete in not addressing the limitations of the Alternatives to Incarceration Program when we asked for it a month ago. I probably should have thought that program might be too rigid obviously with a criminal history, and putting him on this program doesn't change the fact that he has a history with the DA's office. Part of the reason that he has a" history with the DA's office is a bad attitude. That is not going to change overnight, and I'm not asking the Court to forgive him.

Alternatives to Incarceration suggests that if he had been honest up-front in using marijuana that might make a difference. The fact of the matter is it doesn't make a difference. Despite what's out there in the medical world about maybe marijuana could be useful for cancer patients, it is not legal in this state. For him telling them that and him coming to this Court and saying I'm using marijuana for relief doesn't help our situation because it is not legal.

The fact of the matter is that the medicines he is on are Morphine, Dilaudid, every two hours two milligrams, the maximum doses. I would suggest that is part of his bad attitude. He is on a heavy narcotic, a narcotic stupor 24 hours a day just to relief the pain. He takes a liver cleaner, and then he takes two other medications just to basically help him die comfortably. I think it is easy to say he is breaking the rules, he should go back to jail, but I think that simplifies the problem a little too much. The jail isn't going to be able to administer to his pain at all. I've had a lot of clients in jail, and they complain that they can't get an aspirin within 12 hours, let alone Morphine every three hours...

MR. LOEB: I'm not sure it does anything other than putting in writing what I already suggested to the Court. I don't think the State or the Alternatives To Incarceration Program is questioning the accuracy of what I was saying. I think Dr. Manalo is giving Abe McCants one set of priorities, take care of yourself.

The fact of the matter is that the doctor doesn't have the authority to relieve or release Abe from any of his obligations under the program. I don't want to put words in Mr. Alesch's mouth, but what I hear him saying is we are not going to change the rules, but if 'the Court gives us permission to just supervise him electronically, they can work with that. That's my suggestion.

THE COURT: I'm reviewing a fax from Felipe B. Manalo. All right. Dr. Manalo corroborates the physical status of Mr. McCants as being, having a low blood pressure whenever he stands up, that he was on March 13th markedly jaunticed, weak, and dizzy. He indicates that it is not impossible for him to show up for this hearing, and he is present in court, but indicates that it would be very difficult for him. The doctor hasn't seen him since March 13th, and, of course, today is the 18th.

Mr. McCants' left leg is markedly swollen. He showed it to the Court.

My major concern is that Mr. McCants be where he is ordered to be and that he report when he is ordered to report assuming he is medically able to report. I think some modifications of the obligation to report would be in order given his medical condition provided that the electronic monitoring report show he is where he is suppose to be, and so I would ask the Electronic Monitoring Program to continue to supervise consistent with those principles.

Is that clear enough, Mr. Alesch?

MR. ALESCH: And suspend our drug testing also?

THE COURT: I'm going to leave that in your discretion as to whether it is necessary or appropriate.

MR. ALESCH: Well, my feeling is it is going to continue to test positive. I believe Mr. McCants will continue to use marijuana while he is on our program. I guess I'm just looking for permission to ignore that given his condition. I mean it is obvious that every time we give him one it is going to test positive.

THE COURT: That is not-

MR. ALESCH: In all honesty, about-

THE COURT: Excuse me. That aspect of your program is not of concern to me. My major concern is that he is completely within the boundaries of where we expect him to be, and if he is not, then he needs to be in the jail, and the jail will have to make a judgment whether they can deal with this medical condition or not. Okay. Thank you.

MR. LOEB: Thank you. Judge.

MS. OPELT: Thank you. Judge.

(Proceedings concluded.)

Abe died in the jail the following day.

Working to end drug war injustice

Meet the People Behind The U.S. Sentencing Guidelines

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