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SACRAMENTO — Since he became the state’s top prosecutor in 1999, Attorney General Bill Lockyer has portrayed himself as standing fast in support of California’s medicinal marijuana law. He’s filed amicus briefs defending the law in federal court. He founded a task force to create statewide standards for how much pot people can possess. He’s even personalized the controversy over marijuana’s ability to relieve suffering by invoking the deaths from leukemia of his mother and sister. Advocates of the ballot initiative that legalized marijuana for sick people, 1996′s Proposition 215, are glad for Lockyer’s support. But now some are questioning his sincerity. Lockyer’s office is prosecuting a 69-year-old Berkeley doctor named Tod Mikuriya, who, because he’s written about 7,000 recommendations for the drug, is one of the most visible medicinal marijuana activists in the state, according to a member of his legal team. Since at least 1999, Mikuriya has been under investigation by the Medical Board of California because of marijuana recommendations he’s written. Two of Lockyer’s deputies, Jane Zack Simon and Lawrence Mercer, are handling the case in their role as counsel to the board. If they get their way, Mikuriya will be put on probation or lose his license to practice medicine altogether. “Tod is being targeted because he has given recommendations to so many patients outside of the Bay Area. He’s got a real devotion to this kind of intervention,” said one of Mikuriya’s attorneys, Oakland solo William Simpich. Marijuana makes up the majority of Mikuriya’s practice; he also practices psychiatry and biofeedback. He has testified in court on behalf of people busted for possession and will drive to rural areas to meet with patients who can’t get local doctors to recommend the drug, Simpich said. Where some might see an apparent incongruity in Lockyer’s support of the prosecution, Simpich doesn’t think the AG’s actions are odd at all. He doesn’t see Lockyer as a staunch Prop 215 supporter and describes the AG’s support of the initiative as “lukewarm” at best. He’d like to see Lockyer not only leave Mikuriya alone, but take the initiative to help patients statewide who are still being busted for possession. “If you are a patient in any county outside the Bay Area, you’ve got the crosshairs on your neck,” Simpich said. But Lockyer spokeswoman Hallye Jordan said Simpich is politicizing an issue that really has nothing to do with marijuana at all. “Dr. Mikuriya is not being prosecuted because he recommends medicinal marijuana to his patients. He is being prosecuted based on the belief that he does not provide adequate screening,” Jordan said. That’s in line with the Medical Board’s chief of enforcement, David Thornton, who said that if the board really wanted to go after doctors just for recommending marijuana, it would run more than the nine investigations it’s carried out since the initiative became law. Of those, two doctors are now on probation and two have pending accusations. Mikuriya’s attorneys have filed a motion to dismiss the charges. If that fails, his case is scheduled to go to trial in front of an administrative law judge in September. The other doctor with a pending case, William Eidelman of Santa Monica, has already been suspended. The case against Mikuriya is based on his visits with 16 patients between 1998 and 2001. The board alleges that the doctor met with the new patients and, for $100 or $120, wrote marijuana recommendations without properly evaluating their medical conditions or providing follow-up. Several of the patients had past arrests for marijuana; a few had pending criminal cases. The Medical Board was particularly offended at Mikuriya’s sanctioning marijuana for a pregnant, 18-year-old anorexic. Thornton explained that although you cannot obtain marijuana at your local pharmacy, the Medical Board expects doctors to treat recommendations just like they would prescriptions for morphine or ibuprofen, for example. “They’re well within their right to recommend marijuana. But when they put it in writing, they need to back that up” by conducting a “good-faith” examination and otherwise making sure the patient has a bona fide need for the drug, Thornton said. Mikuriya’s lawyers say that’s exactly the rub. According to their reply brief, “Dr. Mikuriya did not ‘prescribe’ medical marijuana, and therefore was not required to follow the record-keeping and physical exam requirements for ‘prescribing’ medication.” They also argue that the Compassionate Use Act, Health and Safety Code � 11362.5, grants Mikuriya absolute immunity for recommending marijuana. Beyond this case, Simpich, the defense attorney, said he would like to see Lockyer act to improve the situation statewide, intervening when local prosecutors go after caregivers and patients. Lockyer has already tried to improve things, but his efforts were blocked by Gov. Gray Davis. When Lockyer took office, he created a task force that explored the issue and said California should create patient identification cards, allow cooperative cultivation, and clear up discrepancies that make it hard for cities and counties to enforce the law. Sen. John Vasconcellos, D-San Jose, has proposed several bills to carry out the task force wishes. But even after both houses passed his measure last year, the senator held onto it because Davis said he would veto. Vasconcellos has introduced the same bill again this year as SB 420. Simpich said none of the allegations against Mikuriya are based on complaints from patients. Rather, the AG’s office is being manipulated by conservatives in law enforcement who still think the drug is the “work of the devil,” he said. “We think it’s just been under [Lockyer's] radar. Now, we’re hoping he’ll intervene and say, ‘This is stupid,’” Simpich said. That doesn’t seem very likely. AG spokeswoman Jordan said her boss is well aware of what’s going on. “The attorney general relies on the professionalism of these longtime deputy attorneys general,” Jordan said. “They’ve got his full support.” The case is In the Matter of the Accusation Against Tod Mikuriya, M.D., 12-1999-98783.

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