L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 321, May 29, 2005
"Here come the spoilers"
Special to TLE
My friend, Matthew Ducheneaux (pronounce it DOOSH-uh-no), died Monday morning, May 23. His brother, Michael, told me that Matthew apparently choked on a device designed to prevent him from grinding his teeth while sleeping. He was attempting to remove it with the extremely limited use of his left hand and lacked the dexterity to remove it when it went the wrong direction.
That's because Matthew lost the use of his arms and legs in a car wreck in 1985. He readily admitted the multiple rollover was as a result of his being drunk. He quit drinking, determined to live his wheelchair-bound life as well as he could live it. He became well-read and well-spoken. He involved himself in both the South Dakota Indian community and the "chair" community. (I refer to the folks whose grandparents lived on the prairies and in the mountains in South Dakota before our grandparents did as "Indian", because most of my friends in that category seem to prefer it to "Native American".)
I met Matthew by phone when I was the Libertarian nominee for governor in 1998. He called me to offer his help among the crowds he hung out with. We talked for a long time, but only once (until 2000). Until I recognized his name as the accused in a marijuana possession prosecution in Sioux Falls (SD).
I followed his case as closely as I could, with the help of his public defender, Chris Moran. Chris was devoted to Matthew's case, believing it contained illustrations of everything that was wrong with the criminal justice system. I do, too. Within the constraints of the budget Moran was able to get approved for his defense, he did as well as any lawyer could. I like him.
Matthew smoked "marijuana" (a political word for "cannabis", which is the word I prefer) to relieve the life-threatening muscle spasms often suffered by survivors of severe spinal injuries. That it works to quell muscle-tearing, bone-breaking spasms is undeniable; I observed it; it's been reported as an anti-spasmodic in numerous medical journals.
His prescription medicine was stuff like Valium, which is a great little downer, but who wants to feel like they're swimming in molasses all the time. His doctor switched him around on pharmaceuticals, but every one of them either made his hair fall out in clumps, made him catatonic, or destroyed his liver (Valium did all three, which is, I guess, why it's such a great party drug).
Within a year after his accident, Matthew, who said he'd never smoked cannabis before, was advised by a friend that some people control their muscle spasms by smoking a doobie. Matthew, who was undergoing a spasm at the time, took a hit, and the spasms stopped.
He informed his doctor of the phenomenon. Doctor Seidel (his name was in the newspaper about this) acknowledged the validity of Matthew's new knowledge. He even wrote wrote on a piece of paper that Matthew carried around with him, "I am aware that Matthew Ducheneaux smokes marijuana to alleviate muscle spasms due to his spinal injury."
Matt learned that the Food and Drug Administration was conducting a program called the Compassionate Investigational New Drug Study (CINDS), and was accepting applications from people who thought they could benefit by getting their cannabis supplied by the government rather than from where everybody else who wants it gets it.
He applied for the CINDS, having done considerable research into the specific phenomenon of cannabis' ability to quell muscle spasms. After about two years of letter-trading with the FDA, he was approved as a patient to be involved in the study of whether cannabis was indeed of medical value.
But the Drug Enforcement Administration had to be involved because not just anyone can be trusted to actually touch "marijuana", notwithstanding the fact that anybody who want marijuana can get it within about 15 minutes.
There is a U.S. Gummint Pot Farm in Mississippi somewhere. CINDS weed had to come from there, through the DEA, which in turn required that Matthew Ducheneaux had to find a pharmacy that would provide a vault, and a 24-hour armed guard to protect the kids of Sioux Falls from the remote possibility that someone would bypass the morphine and Oxycontin in easily-jimmied drawers to bust open the vault door to get the weed if the armed guard weren't there.
I am not exaggerating the DEA's demands before it would facilitate getting gummint weed to a person who needed it to stay alive.
Of course, no druggist in Sioux Falls would meet the preposterous demands. So Matthew continued to do what anyone who wants cannabis does; often people gave it to him, he bought it at bars, on the street, at AA meetings, in short, wherever he goddam wanted tojust like the rest of us.
There was no choice to be made. If he quelled the spasms with prescription drugs, he lost his liver. Cannabis had no adverse side effects. He could function as well as a quadriplegic in his condition could, while smoking cannabis two or three times a day as he sensed a spasm coming on.
He lived in Sioux Falls for most of the '90s, involved in Indian politics and wheelchair society. In July, 2000, he went to blues and jazz festival at a park in Sioux Falls. While there, he felt a spasm coming on and went to a secluded place away from the crowd and smoked. Two bicycle cops spotted him, checked it out and arrested him.
That was the opening shot in a strange series of events that yielded exactly nothing for anyone involved, except for the taxpayers of Minnehaha County, who ended up paying close to $350,000 for County Prosecutor Dave Nelson's personal stupidity and venality.
Nelson insisted on prosecuting Ducheneaux for possession. "He broke the law, didn't he?"
Ducheneaux, through Chris Moran (in the public defender's office), pursued a "prevention of greater harm" defense. This course is illustrated by the comparison to the person who takes a boat not his in order to save a drowning person. The larceny statute is overridden by the prevention of a greater harm. In Matthew's case, of course, the drowning person was himself.
Patricia Riepel, the Sioux Falls magistrate hearing the case, granted the petition to use the "prevention" defense. After Nelson's office appealed that decision, the senior judge in the jurisdiction, Peter Lieberman, overruled Riepel. Moran appealed to the So. Dak. Supreme Court.
The SD Supreme Court held for Lieberman, so Ducheneaux went to trial, which I attended, in August of 2002. While Ducheneaux was allowed to tell the jury his story, the judge was forced to tell the jury that the facts didn't matter; as a matter of law, if the jury found that he possessed "marijuana" (which he admitted), then they had to find him guilty. He was found guilty.
Judge Riepel sentenced Matthew to a few days in jail, suspended, and a $250 fine. She asked, "Do you need some time to pay?" He answered, "I'll never pay the fine." She smiled and said, "You can have as much time as you need."
In the summer of 2004, So. Dak. Rep. Tom Hennies, chair of a subcommittee of South Dakota lawmakers conducting a criminal code revision, invited me to testify on marijuana laws. I invited Matthew to be part of the presentation, along with Mike Gray (author of "Drug Crazy").
Matthew described his muscle spasms ("It feels like somebody's hittin' be in the back with an axe. I can't breathe, like I'm being squeezed by an anaconda.") Hennies asked him how he would like to see the laws changed. Matthew said, "Jeez, just do it."
Hennies proposed a medical use exception to the law. Prosecutor Nelson and a So. Dak. judge, Tim Tucker, (both non-legislative members of the committee) said that such a change would be "a burden on judges and the system".
That episode, along with our three failed attempts to get debate on the therapeutic cannabis question in the legislature since 1999, led us to initiate a petition drive to put the issue on the ballot. We started obtaining signatures May 7. You can see the proposed new law at http://www.SoDakSafeAccess.org/.
On June 5, I'll start a bicycle trek across South Dakota to help raise awareness of the therapeutic cannabis issue. In view of Matthew's death, I have decided to name the ride the Matthew Ducheneaux Trail to Safe Access Bicycle Tour, and will continue to conduct it each year until sanity and compassion reign on this issue.
At all times when thinking of medical use of marijuana, remember that those who know cannabis benefits them defy the law daily to reduce their discomfort or suffering and to improve the quality of or extend their lives. The law is irrelevant to sick, disabled and dying people. Let's recognize that and change the law to reflect reality.
Let's do it partially for Matthew.
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