Christopher Diaz Gets A Reprieve — Kind Of, Maybe, Possibly
by Mark Scaramella, January 5, 2012
Last Thursday, in a replay of November's extradition hearing, Deputy DA Matt Hubley presented the Texas warrant to extradite 22-year-old Chris Diaz to Texas where Diaz was arrested in June of 2010 for possession of a half-ounce of marijuana product. Texas law metes out sentences of 5-99 years in its state prison system for amounts of marijuana that aren't even cited, let alone prosecuted in most states.
After several months in a Brownwood, Texas, jail Diaz posted $40,000 bail and returned to Mendocino County where he was arrested three months ago on the Texas charges. Those charges have now been expanded to include bail jumping. Diaz, an asthmatic since birth, says marijuana is the only medicine that keeps him breathing.
Mendocino Superior Court Judge Ann Moorman, upon DA Hubley's presentation of the Texas extradition warrant, told Diaz’s pro-bono attorney Don Lipmanson, “I have no jurisdiction to do anything. He's already had his ID hearing.”
The judge was referring to the perfunctory hearing before visiting judge Arnold Rosenfield in late November which simply established that the Diaz being held in the Mendocino County Jail was the same Diaz that Brown County, Texas, wants to put away for 5-99 years for carrying half an ounce of concentrated (medical) marijuana “with intent to distribute.”
“I beg to differ,” Lipmanson argued. “There is no governor’s warrant under Penal Code 1552, 1552.1, which asks for a 30-day hearing. It’s been 29 days since Diaz's extradition hearing. There's a 30-day limit according to 1552 or 1552.1. We would like you to authorize bail and litigate a habeas corpus motion.”
Lipmanson was steering the judge to:
“1552. If at the hearing before the magistrate, it appears that the accused is the person charged with having committed the crime alleged, the magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time, not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the State having jurisdiction of the offense, unless the accused give bail as provided in section 1552.1, or until he shall be legally discharged.”
“1552.1. Unless the offense with which the prisoner is charged, is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, or it is shown that the prisoner is alleged to have escaped or violated the terms of his parole following conviction of a crime punishable in the state of conviction by imprisonment for a term exceeding one year, the magistrate may admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper, conditioned upon the appearance of such person before him at a time specified in such bond or undertaking, and for his surrender upon the warrant of the Governor of this state.”
If you start the clock from the day Diaz was jailed in Mendocino County — October 30, 2011 — he's been held for Texas for at least 60 days.
Moorman quickly declared, “The code section you refer to is for extradition to California, not from California to another state.”
Lipmanson: “It refers to someone charged with a crime in another state. I do not agree. We seek a stay of extradition. I have only recently been provided with Mr. Diaz’s medical records. It took time to research the case from these records.”
Moorman: “You can file papers for a habeas corpus, but you have not provided notice, if that's what you want to do.”
Lipmanson: “What about bail?”
Moorman: “I need a two-day notice for a bail hearing request. Bail was previously denied — unless Mr. Hubley waives notice.”
Hubley promptly declared “No,” he would not waive notice. The DA maintains that the Diaz matter is a routine extradition. Texas wants him back, Texas's papers to get him back are in order.
Left out, of course, are the larger issues involved in the Diaz matter. Those issues range from the disproportionate penalty for the crime alleged to the legality of the initial stop of Diaz as he drove through the small town of Brownwood late at night where the arresting officer said he'd stopped Diaz because the registration tags on his California plates had expired. The Diaz camp says registration on the aged Mercedes station wagon were current. The marijuana was found in the locked trunk of the Mercedes.
Lipmanson: “I would like to be allowed to file for a bail hearing.”
Moorman: “OK. We'll set the bail hearing for Tuesday. But there will be no stay of extradition.”
Meaning that if Texas wants Diaz before Moorman hears the petition on Tuesday (January 3rd), Brown County Sheriff Bobby Grubbs, who seems to take Diaz personally, could have the young man picked up in the interim.
Lipmanson then asked that the judge take Diaz’s medical condition into account before deciding on extradition.
Moorman: “Have you contacted Texas?”
Lipmanson: “I have not contacted Texas authorities.”
Moorman: “Having been in your position previously [Moorman was a successful Ukiah defense attorney before being elected to the bench], I suggest you contact them from the very beginning.”
Lipmanson: “I will. But we need to set a reasonable bail.”
Lipmanson then asked judge Moorman to accept a letter from Diaz’s physician, Mendocino County's Dr. William Courtney.
The judge wouldn’t accept Courtney's medical assessment of young Diaz, but did direct Lipmanson to give Dr. Courtney’s letter to Deputy DA Hubley. Moorman then set the requested bail hearing for 1:30pm Tuesday, adding, “You can file a habeas corpus petition before that.”
Lipmanson turned to his shackled, jump-suited client with upraised eyebrows and a slight nod of the head, as if to indicate that they seemed to have postponed what had, and still may be, Diaz's forced return to Texas.
Assuming the Texas extradition van doesn’t arrive before Tuesday’s bail hearing, Moorman is expected to hear two filings from Lipmanson, one a bail-setting request and the other a habeas corpus request. We have appended Dr. Courtney's report for further background.
* * *
“To The Superior Court of the County of Mendocino
Re: Medical history of Christopher Diaz.
Christopher Diaz has suffered his entire life from serious medical conditions.
Born disabled, Chris was immediately hospitalized. From ages one to three Chris had multiple visits to the hospital for allergic and bronchial issues. His allergic sensitivity obstructed his eustachian tubes leading to chronic inner ear infections which resulted in transtympanic membrane tubes being placed.
In 1992 at the age of three Chris was formally diagnosed with acute asthma, a condition he suffered from for years before its diagnosis and which has compromised his health his entire life. At the age of three Chris was prescribed Aerobid, Proventil, and Albuterol as a rescue inhaler. He was also placed on an in-home breathing machine which he subsequently used until he was 17 in 2007.
From age 3 to age 17 Christopher has had at least one long-term hospitalization each year. Some years, such as 2003 and 2005, he had multiple long-term inpatient hospitalizations. Attached is only a portion of those medical records.
Due to his compromised immunological status, Chris suffered from recurrent tonsillitis that peaked in frequency, severity and duration during the years 1993-1995. As was the practice of the day his pharyngeal lymphatic tissue was completely resected in a 1995 tonsillectomy and adenoidectomy.
In 1996 he was diagnosed with scoliosis, the reason for his chronic back pain from birth to date.
In the winter of 1997 Chris moved from Amarillo to Austin and lived there until 2003. During that six-year period his breathing machine was kept at the school so he could complete required daily breathing treatments at school, complementing the required breathing treatments he received every morning and night at home. The hot, humid environment of Austin combined with new pollens and molds to which he was not accustomed, sent him into multiple serious status asthmaticus attacks.
Around 2000 Chris was tested and found to have severe reactions to all of the allergy skin tests. He started allergy immunotherapy in 2000. From 2000-2002 food allergy testing found multiple chemical sensitivities and in 2002 he began eating a diet devoid of pesticides and herbicides. It was recommended that Chris stop consuming dairy products as they were complicating his pulmonary bronchospasms.
In 2003 he and his family moved from the humid environment of Austin back to the dusty, dry “high plains” of Amarillo. In 2004 allergy testing was repeated and continued to mount severe reactions. Six hospital stays occurred between 2003 and 2005 at one hospital. Numerous other emergency room treatments occurred around Texas.
In 2005 a doctor explained that Chris's lifelong history of overuse of antibiotics, steroids and daily as well as emergency bronchodilators contributed to the deterioration of his pulmonary function and that Chris's asthmatic condition was progressing in the direction of chronic obstructive pulmonary disease/COPD. The Texas physician prescribed a variety of herbal supplements and replacements including cannabis hemp oil and suggested that Chris move to a more suitable safe environment where cannabis could be more securely accessed as an herbal bronchodilator.
Chris moved to the Mendocino Coast in 2006 where it was easier to secure a diet devoid of pesticides. He also started acupuncture, discontinued wheat, gluten and corn recognized as personal allergens.
Despite his best efforts, Chris's pulmonary status continued to decline. In 2007 he was hospitalized for two weeks in Willits intensive care unit secondary to pulmonary collapse. At that point he stopped all steroid pulmonary medications and traditional western medical bronchodilators.
In summary, from ages 3-17 Chris had required the use of an in-home breathing machine several times a day. To attempt to prevent an asthmatic attack from progressing to status asthmaticus, Chris carried a rescue inhaler with him at all times. To this day he requires a breathing machine at home.
From 2007-2011 Chris has benefited greatly from the cultural awareness of the Northern California coast. Particularly, Mendocino has provided Chris with unparalleled access to organic food, organic cleaning products. In particular access to clothes and bedding devoid of harsh cleaning compounds and scents 24 hours a day was an unexpected benefit. In Mendocino Chris had access to classes on raw food preparation including the use of non-psychoactive dietary cannabis to moderate his immunological reactivity as well as treating the acute broncospastic events that have terrorized and threatened his life.
While “driving with California license plates” on a trip to introduce his two young children to his ailing 80-year-old grandmother in Texas, Chris has already served 80 days in jail in Brown County, Texas, in 2010. After returning to California, a stress triggered asthmatic attack sent him into the Mendocino Coast District Hospital in February 2011.
The death of his lawyer and fear of long-term separation from his young children for 5-99 years for the possession of 21 grams of cannabis complicates his day-to-day health and makes him susceptible to acute and or status events. Transportation across the country will elevate Chris’s separation and anticipation anxiety and fear to the point that it would precipitate acute obstruction of his airways. This would require immediate bronchiolar treatment without which he is at high risk of succumbing to status asthmaticus leading to anoxia, a condition that rapidly proceeds to death.
Prior to his most recent incarceration over the possession of a personal use amount of the only known anti-bronchospastic without serious side effects, his adipose tissue was fully saturated with the 20 carbon phytocannabinoids or eicosanoids which have been demonstrated to down-regulate a hypersensitive immunological system.
It is well-known that it can take several months to remove all the phyto-cannabinoids stored in the adipose tissue. With each additional day of deprivation Chris is being exposed to a significantly increased incidence, severity and potentially life-threatening risk of broncospastic events.
Chris Diaz's ability to tolerate stress-induced bronchospasm has deteriorated markedly at the hands of the County of Mendocino who have held him in custody in depravation of his state rights to use cannabis to protect his life, health and well-being. Tetrahydrocannabinolic acid/THCA, cannabidiol, and cannabidiolic acid are known immunosuppressants and antispasmodics which therapeutically reduce the incidence as well as symptomatically treat the acute bronchospastic expression. See attached patent and article.
Cannabis has been used successfully for thousands of years to treat asthma without steroid toxicity and pulmonary parenchymal damage. Prior to the illegal prohibition it was provided by Eli Lilly. There are over 150 patents issued by the United States patent and trademark office, issued based on demonstrated utility, novelty and market value. It is not a question of scientific efficacy but of constitutional rights. A cannabis physician must be capable of not only approving appropriate use, but also defending that use in any court of law in this state or while traveling to other states within the union.
Chris Diaz's right to life are currently being abridged without cause.
Chris Diaz's declining antispasmodic adipose levels are today approaching a life-threatening level, increasing his exposure to stress induced anoxic bronchospasm within a severely deteriorated pulmonary system that could culminate in death by asphyxia.
The United States, California and presumably Texas Constitution protects its citizens right to life. Article 4 of the US Constitution grants full faith and credit to state's rights in both the state of origin as well as during travel to or through other states of the Union. Chris Diaz moved to California on medical device, sought and was granted approval to use cannabis for a life-threatening condition. I am but the last in a series of physicians who have approved of his use of botanical anti-bronchospastics. His use is clearly reasonable. The current denial of his access is clearly culpable.
Thomas Jefferson stated, “If people let government decide what foods they eat and what medicines they take, their bodies will soon be in as sorry a state as are the souls who live under tyranny.”
The pending consideration of the transport of Chris across the country with dangerously depleted levels of anti-spasmodic cannabinoids places him in grave danger and those involved with this mandate are in strict liability for its consequences.
The above testimony is given under threat of perjury. If called back in court I will testify to the same. Sincerely, William L. Courtney, MD, AACM, American Academy of Cannabinoid Medicine, Mendocino.”