By Fred Gardner
On New Year’s Eve, NBC San Francisco will air a documentary that gives activist Pebbles Trippet proper credit for advancing the movement to legalize marijuana. Peter Coyote narrates the 45-minute video, which uses the Ken Burns template of integrated interviews, still photos, and spoken commentary.
This is must-see TV.
Coyote: “Pebbles Trippet grew up in Oklahoma when the world was at war. [This is inaccurate. She grew up during the Cold War.] She has never shied away from a fight. As a teenager in the ’50s, she became involved in the Civil Rights movement and helped integrate lunch counters in Tulsa. In the ’60s, she fought to end the Vietnam War. In 1970, she came to California and found a new cause.”
Trippet (now in her mid-70s): “We did end the war.” She hears the overstatement and immediately corrects herself, “We ended the draft. And part of that was the marijuana movement. It was in the background, at least for me.”
The connection between pro-marijuana and pro-peace sentiment among Americans in the Vietnam War-era is rarely mentioned or analyzed. Knowing the government was lying about marijuana made millions question whether the government was telling the truth about Vietnam — or anything else for that matter.
Coyote: “With the war winding down, Trippet turned her organizing skills to the growing marijuana movement. In 1972, she helped get the California Marijuana Initiative on the Ballot. Proposition 19 would be the first time Americans could vote on legalizing marijuana. It was doomed to fail, but…”
Trippet: “It was a surprising good showing. We won 33 percent of the vote. Out of the blue. No one had ever thought of it before, the public had no idea what it thought … the way we felt about … that was a tremendous victory — And let’s go on in 1974 and let’s do it again!”
Thus, our heroine steps into the Single Issue Trap with eyes wide-open!
Coyote: “Trippet had been using cannabis to control her migraines for year. She carried low-potency marijuana leaves [joints]with her in her car. Every time she was arrested, she argued it was her medicine. And she was arrested a lot.”
Trippet: “I was busted 10 times in 11 years in five counties. It was usually on the road driving late at night. My Sonoma County bust came in 1990. My Marin County bust in 1992. My Contra Costa bust in 1994, and also the Humboldt County bust and the Palo Alto bust.”
Coyote: “Trippet had a plan … aim for the Supreme Court. She went to the law library at UC Berkeley and read up on every case that involved marijuana. Trippet learned how to file court papers and how to defend herself. She found hope in the U.S. Constitution.”
Trippet summarizes the ways in which she saw marijuana prohibition as unconstitutional: “It’s cruel punishment to punish a medical act. It wasn’t statutory law, it wasn’t California law, but I had ‘unreasonable searches and seizures’ of medicine and ‘unequal protection’ compared to other drugs.”
Coyote: “Trippet also had one key supporter: Dr. Tod Mikuriya … a psychiatrist who lived in Berkeley. He was also a director of marijuana research for the National Institute of Mental Health (NIMH). In 1967, he published a book titled ‘the Marijuana Medical Papers.”’ [Two factual errors here. Mikuriya’s brief stint at NIMH had ended in ’67, and his anthology of pre-prohibition medical literature on cannabis was self-published in 1973.]
Trippet: “Every county I would bring him to the stand and he would testify ‘Yes, I believe she uses it legitimately.’ It made all the difference because had I had no advocate, I would have just have been up there flailing around about my constitutional rights.”
Coyote: “When Trippet lost one court battle, her case moved up to a higher court because she was claiming constitutional rights … In the mid-1990s, her argument for the right to transport marijuana for medical purposes was sent to the U.S. Supreme Court.
Trippet: “My paper went to the Supreme Court and they all read it. And of course, I was denied a hearing on these constitutional grounds. The idea is simple: you must be able to carry with you the medicine you can legally possess, or it’s unequal with every other medicine.”
Coyote: “In 1996 Proposition 215 legalized medical marijuana in California, but it left out one key element: it was still illegal to transport marijuana. [Prop 215 was also silent on distribution.]
Trippet: “What about transporting? It wasn’t there. That’s because they [the primary drafters]thought ‘It’ll make us lose, people will think we’re smuggling.’ So they just left it out.”
Coyote: “But by this time Trippet had spent decades building the legal foundation for transportation of medicinal marijuana. The California Supreme Court used her work to create what the justices called ‘The Trippet Standard.’
Trippet: “Somebody had to argue it and include it, so I did. And they grave ‘the implicit right.’ Those are their words! I thought, Wow, Perfect!”
Coyote: “The Trippet standard also established how much marijuana a person could carry based on their medical condition. It had taken three decades, a dozen arrests, and two years in various jails, but Pebbles Trippet made it possible for California to have an entirely legal marijuana business.”
The segment ends with Trippet explaining why “to lose is a good thing, because if you lose, then you have the opportunity to win higher, for everybody. That’s where you set precedent.”
Trippet amplified her point to O’Shaughnessy’s: “Lawyers have largely been discouraged from pursuing appeals once their clients lose at trial or take a plea, since the probability of winning on appeal is slim, only 2-3 percent. When Tony Serra discovered this disparity in his own practice, he told me, ‘Forget it. I want to win.’ He turned [his efforts]to winning at jury trial where there is no need to appeal.
“But the problem with that is that very few cannabis defendants go to trial — 2-5 percent. And even fewer win and most can’t afford the appeal process. So the laws by and large have remained unchallenged for decades; the defense bar is trained in criminal, not civil, law. We have not built an infrastructure of lawyers schooled in civil constitutional challenges. So a marijuana challenge comparable to Roe v Wade eludes us and prohibition persists.
“I hold the lawyers responsible for this. Most defense lawyers rely on a statutory motion to suppress the evidence, based on no probable cause or lack of a warrant, or whatever — so they have nowhere to go once they lose on appeal. The 1538.5 suppression motion is the end of the line for appeals — unless constitutional rights are also argued.
“Usually on appeal lawyers use the suppression motion to get rid of the evidence, which I was instinctively opposed to because I wanted to bring out the evidence, not suppress it. Any lawyer could do the same thing but they are too afraid of losing their reputation on a futile or failed attempt, so they stop at the suppression-motion stage and don’t even try. That’s why I say, ‘losing is a good thing.’”
If you’re incapable of accepting loss, you’re incapable of getting a win.
“When Prop 215 passed, I suddenly had new statutory rights, which I of course incorporated. They could not ignore someone with knowledge and staying power. Being ignored for years taught me how not to be ignored.”