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December 3, 2009 -- Nashville Scene (TN)

Bernie Ellis's Seven-Year Nightmare With The Law Is Over

But His Advocacy Of Medical Marijuana Burns Hotter Than Ever

By Jim Ridley

Return to Drug War News: Don't Miss Archive

By the time you read this, Bernie Ellis will be home on the farm he's had for nearly four decades in the Fly community 12 miles south of Leipers Fork. There'll just be less of it. His farm will be 25 acres smaller, but Ellis is willing to live with that -- considering the federal government almost took it all, and meant to throw him in prison to boot. Last month, Ellis, a respected public-health epidemiologist with a 35-year career, signed civil asset forfeiture papers handing 25 acres of farmland over to the U.S. government. The agreement ends a nightmare that began seven years ago when he was raided for growing marijuana -- a small amount he used only for medicinal purposes, and to ease the suffering of the terminally ill.

The agreement wasn't made lightly, Ellis says. In recent weeks, the avuncular 60-year-old with the stocky outdoorsman's build has avoided walking the ridgetop he knew he would lose. He didn't want to see the pasture and surrounding woodland that would belong to Uncle Sam, or the artesian spring that feeds them.

"I'm not walking around it," Ellis says, "because if there's any vestige of pain or regret to this whole enterprise, it'll be affixed to that land."

But in prosecuting Ellis-or persecuting him, as his many supporters claim-the government may have given a face to what medical-marijuana and cannabis-reform activists argue is the fundamental injustice of the drug war. In 2002, drug agents in helicopters and on four-wheelers stormed Ellis' property looking for marijuana plants. To this day, he believes they were tipped off by a local dealer/informant fuming because Ellis wouldn't sell to him.

A tactical field report indicated finding 537 plants, though for reasons Ellis doesn't understand this was amended a month later to 300. (The actual number of usable adult plants, he maintains, was closer to a couple dozen.) Nor does he understand why some of his plants were left standing-plants he documented in photographs, with a neighbor as witness -- only for them to disappear a few days later, after a visit by marauders who cut his fence.

Whatever the case, Ellis readily admitted that he was growing small amounts of cannabis to relieve his degenerative spine and hip condition. What's more, he said, he was sharing it free of charge with AIDS and cancer patients to offset their pain and nausea.

A classic dealer's dodge, right? Only Ellis received testimonials to back him up. There was the doctor whose patient, wasting away from metastatic renal cancer, took her only comfort from the marijuana Ellis supplied, free. "It was the only thing which relieved that unremitting nausea, the only thing that allowed her real respite," the doctor wrote. "[When] she died, she was so thin I could have carried her to the hearse alone."

There was the neighbor whose husband of 34 years began an agonizing death from lung cancer. On the advice of his nurses, who suggested he obtain marijuana, the dying man went to Ellis for help and got it-again, free. "The marijuana Bernie Ellis provided ... made it possible for [him] to rest and to sleep," his widow wrote on Ellis' behalf, "and it helped keep his appetite up."

These and some 200 other testimonials fill a notebook four inches thick-and a bulging, well-worn manila folder, and another folder still. Peter Strianse, the criminal defense attorney who has represented Ellis pro bono for the past five years, believes that Ellis would not be in his current situation "if the raid were done now, in the fall of 2009, and the government were fully aware of the mitigating circumstances." His opinion carries some weight: Earlier in his career, Strianse himself was an assistant U.S. attorney and drug task force prosecutor.

Had Ellis been in California, Colorado or any of the 11 other states that have legalized medical marijuana, the outcome might have been different. Had his troubles occurred in one of those states after Oct. 19 of this year -- when a widely publicized U.S. Department of Justice memorandum asked federal prosecutors to lay off state-sanctioned medical marijuana users -- he might have escaped prosecution entirely.

But this was Tennessee, where marijuana remains both illegal and the state's No. 1 cash crop. Ellis faced a battery of charges. Although he still disputes the amount and weight of what the agents found, he pleaded guilty to manufacturing cannabis plants in late 2003 to pre-empt more severe action. By 2007, he'd lost his livelihood and gone $70,000 in debt. Worst of all, he faced losing the 187 acres of farmland he'd accumulated since 1973.

"If I were a rapist, the government couldn't take my farm," Ellis told the Scene in 2007. "I grew cannabis and provided it free of charge to sick people, so I run the risk of losing everything I own. That just doesn't compute to me."

It didn't compute to a lot of people. To the embarrassment of federal and state drug officials, Ellis became a cause celebre. A packed 2007 benefit at The Belcourt netted thousands of dollars in support. More than 100 testimonials -- from doctors, neighbors, state representatives, public-health officials, even the Republican former governor of Delaware -- begged the presiding judge in Ellis' case, U.S. District Judge William Haynes, for leniency.

Support came in more direct ways from the close-knit Fly community. While Ellis was confined to a halfway house for 18 months, limited to one visit each month to his farm for the last six months, his neighbors fed his dogs and paid his electric bills.

Haynes eventually sentenced Ellis to four years' probation, later reduced to two -- a lenient sentence, considering he was facing 10 years in prison. During his halfway-house stay, Ellis says, he learned some valuable truths about the drug war from "my homies." The first thing they told him, he recalls, is that they didn't smoke pot -- not because they didn't prefer its mellow buzz, but because it took too long to pass through the body to beat their mandatory drug tests. So they would find something faster. "Use meth on Friday, piss clean on Monday," ran a user's credo.

The second thing they told him, he says, was that "there's no negotiating with the feds."

Ellis completed his halfway-house stay, along the way using his personal and professional experience with recovery programs to start the house's first 12-step program. But for the past two years, the threat of losing his farm has remained a grave possibility. After an unsuccessful attempt to withdraw his guilty plea, he still had to satisfy the $250,000 settlement required by the government, lest he lose all his property.

On Nov. 19, Haynes signed off on Ellis' land forfeiture. Ellis would give up 25 acres of his farmland, thus settling the matter -- at least in the government's eyes.

"I do not diminish or devalue what I am giving up," Ellis wrote in an email to his supporters. "In fact, the 25 acres they are getting represents almost the entirety of my investments from a three-decade-long successful public-health career....Now the feds will have it, and be here (for at least a while)." The fate of the land has not been determined, though a waggish friend of Ellis' suggested it become the Bernie Ellis Wildlife Sanctuary -- "wildlife spelled as two words," Ellis says with a chuckle.

Ellis takes comfort (and sees no small amount of irony) in what he describes as "a tidal wave of shift in public policy toward cannabis." First came the Department of Justice's memo in October, read by many as a show of cautious sympathy toward medical marijuana by the Obama administration. Last month, in a perhaps more significant turn, the American Medical Association urged the federal government to end its classification of cannabis as a Category I controlled substance -- on par with LSD or heroin -- with no medical benefits.

Sadly, the issue has become not just personal for Ellis, but perhaps critical. Last month, as his sojourn in legal limbo was finally coming to an end, Bernie Ellis was diagnosed with cancer. How severe, he doesn't know. But the diagnosis only strengthens his conviction that for the seriously ill, marijuana is neither an indulgence nor a vice, but a quality-of-life necessity.

Back on the remaining 150-plus acres of his property, with its eight valleys, four creeks and a waterfall, Ellis says he wouldn't recommend that anyone else take the same risks he has. But he can't say he regrets them either.

"Seven years ago, I was making $100,000 a year doing socially meaningful work, and I was happy," Ellis says. "Today, I'm broke and doing socially meaningful work, and I'm happy. Every day, it feels like another block's been removed from my back. I can sit on my porch at sunset and not lose this place where my heart lives."

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