Judge rules man convicted of murder can use medical marijuana despite probation rules

Published: Nov 17, 2017, 8:18 am • Updated: Nov 17, 2017, 8:18 am

By David Ovalle, the Miami Herald

MIAMI — On probation for a bloody 1999 gang murder, Miguel Valdes takes a host of pills to keep his longtime schizophrenia in check.

Now, he can also legally use another medicine — marijuana, a drug that normally would get a convicted killer locked up for violating probation.

A Miami judge, over fierce objections from prosecutors, allowed the 34-year-old Valdes to ingest the herb after he was approved to take part in Florida’s fledgling medical marijuana program. The State Attorney’s office argued that Valdes didn’t need the drug — which he was smoking when he and another man used a tire iron and a blade to kill the victim, carving a gang insignia into his forehead.

But Valdes says he’s long been trouble free and needs the drug to soothe the voices in his head.

“It keeps me mellow,” he said. “I really need it for my sleeping. When I’m not taking it, I wasn’t sleeping and I’d wake up in a bad mood. I feel better now.”

It’s a first in Miami but won’t be the last. As more people get state approval to use the herb for medicinal needs, legal observers say Florida judges are bound to struggle with deciding on whether convicts can use the drug while under the eye of the courts.

Florida is one of 29 states with laws allowing for medical marijuana. But across the country, state courts have differed on whether to allow convicts to use medical marijuana — all the while, the feds insist that the drug is illegal and can’t be used by their probationers.

“Probation is one of those areas in which a lot of states lacked foresight when they crafted these medical marijuana programs,” said lawyer David Mangone, of the group Americans for Safe Access, which advocates for medicinal use of the drug.

The laws in Arizona, Colorado and California generally allow probationers to use medical marijuana. But in states such as Massachusetts and Michigan, judges have greater discretion in banning the drug for someone under the court’s supervision, even if a doctor OKs it.

“Some judges allow it. Some judges almost never allow it,” said Michigan lawyer David Rudoi, whose client, a serial drunk driver, was prohibited from using medical weed for multiple sclerosis and other ailments. “They’re all over the place.”

In Florida, the first medical marijuana law passed in 2014. Two years later, voters dramatically expanded the law, which now allows marijuana to treat conditions such as HIV and AIDS, glaucoma. post-traumatic stress disorder, Crohn’s disease and Parkinson’s disease.

The statute does not specify schizophrenia but says it can be used for any similarly severe ailment in which the “medical use of marijuana would surpass any potential health risks.” The law allows patients to use cannabis pills, oils, edibles and “vape” pens — but bans smoking.

The Florida Department of Corrections, which oversees and routinely drug tests convicts under supervision, doesn’t keep a central tally of how many probationers have presented medical marijuana cards. But the department confirmed it is accepting them.

“If an offender under supervision provides a valid medical marijuana card issued by the Department of Health, he/she will not be drug tested for marijuana use as long as the medical marijuana card remains active,” the department told the Miami Herald. “However, this does not prevent the offender from being drug tested for other illegal narcotics as required in the orders of supervision.”

How state-approved medical marijuana is doled out is strictly regulated, with just over 1,000 doctors in Florida specifically allowed to approve use of the drug. Just 13 companies statewide are allowed to cultivate and dispense the marijuana.

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Doctors must recommend patients for inclusion in Florida’s Medical Marijuana Use Registry, which now includes more than 50,000 people. Those patients must apply for a special card — so far, just under 30,000 patients in Florida have gotten them — that allows them to get supplies for up to 70 days.

Those with cards include Valdes, who got out of prison in 2010 and today lives in Miami with his girlfriend and his 6-year-old son. He does not work but gets disability payments, he said during a conversation in the office of his Miami attorney, Yehuda Bruck. Valdes said he doesn’t use his government check for the weed. Instead, his girlfriend pays for his supply of cannabis oils, which he smokes through an electronic cigarette.

Valdes was convicted for the 1999 murder of Rolando Pastor. Pastor was beaten with a tire iron and stabbed, his throat slit. Valdes was convicted along with David Gomez Millan. Both were members of the Latin Kings gang. The gang’s crown insignia was carved into Pastor’s forehead.

Valdes was 15 years old when the murder happened. His 2003 trial ended in a hung jury. Ultimately, Valdes agreed to a plea deal that called for 12 years of prison, one year of house arrest and 9 years of probation.

He was allowed to take the plea, in part, because of significant mental health concerns. A doctor concluded that Valdes suffered from schizophrenia — exacerbated by cocaine and marijuana use. Several scientific studies have shown that marijuana increases the risk of teens developing schizophrenia, although it’s less clear how it helps or hurts people already living with the disease.

As with most plea deals, his agreement specifically said Valdes could not use illegal drugs.

Earlier this year, Valdes petitioned Circuit Judge Teresa Mary Pooler. He presented a letter from Dr. Khaja Chisty, from a Miami clinic named Florida 420 Doctors, saying Valdes qualified for the program.

Chisty is currently approved by the state to sign off on medical marijuana, but has a checkered past himself. He had his medical license suspended in Colorado over allegations he disappeared from his practice “for long periods of times,” failed to monitor patients’ prescribed controlled substances, prescribed inappropriate mixtures of drugs and pre-signed prescription pads. Because of the suspension there, Florida is also trying to suspend him — he is fighting the allegations, according to the Florida Department of Health.

As for Valdes, prosecutors believed he hadn’t presented any “viable or credible evidence” that he needed marijuana — and suggested that the move was an attempt to cover for smoking street marijuana the way he did when he was a teenager.

The “plethora of medications” he was already taking for his mental illness, prescribed by another doctor, have been working without adding marijuana, prosecutor Gail Levine told the judge during a Nov. 2 hearing.

“It is all working for him fine. He is stable,” Levine said. “He doesn’t need anything else.”

Bruck, Valdes’ attorney, argued that the state medical marijuana law allowed his client to vape.

“If his doctor prescribes something that has for thousands of years of history, everyone agrees is safe, (he) should be allowed to take it,” Bruck said at the hearing.

Pooler sided with Valdes. She refused to allow a hearing in which the doctor would testify about the need for marijuana.

“If the doctor is prescribing this and I’m not going to go past his doctor,” Pooler said, according to a transcript. “I’m not going to tell his doctor, ‘Listen, you can’t prescribe this stuff.’ ”

Via AP Member Exchange. Information from: The Miami Herald

Topics: courts, doctors, Florida, medical marijuana, plea agreement, probation, teens