[420 Girl]

Missouri - As far as I can tell there haven't been any surprises in the criminal prosecution of Kenneth Wells, 56, who is tentatively scheduled for trial Jan. 26 for growing marijuana in his home in unincorporated St. Charles County. Wells' attorney said Wednesday he will ask for a continuance.

Wells' defense suffered a serious, yet expected, setback last month when Circuit Judge Nancy Schneider ruled that she will not allow evidence at trial of Wells' medical condition or medical history.

What that means is jurors won't know of Wells' health problems or that marijuana limits the number of his seizures and lessens their severity.

"It is not going to result in a plea bargain," said defense attorney Wayne Schoeneberg. "We are pressing on and taking that issue up on appeal."

Schoeneberg had planned to call an expert witness - Dr. Denis J. Petro, a neurologist and clinical drug researcher in Arlington, Va.

Petro did not personally examine Wells, according to court records, but made conclusions based on information provided by Schoeneberg.

According to Petro's sworn statement, here's what he would have said if allowed on the stand:

"Marijuana is safe and effective in the treatment of seizure disorder as manifest in this case. In patients who have not obtained adequate seizure control with conventional therapy, cannabis offers a rational alternative at least as safe as conventional therapy for intractable chronic epileptic seizures. Mr. Wells has been exposed to multiple medications over the past 26 years to treat his seizures with risks far higher than with cannabis."

Margaret Eveland, the assistant prosecuting attorney assigned the case, made sure Petro's expertise, in this case, stays in the court file. She argued that Petro should not testify because Missouri law does not allow a medical exception for marijuana.

Thirteen states do, provided a doctor has recommended marijuana use, with Washington, D.C., expected to join them soon. Although marijuana remains illegal under federal law, Attorney General Eric Holder announced in February that the Justice Department will end raids on medical marijuana clubs established legally under state laws.

Eveland also successfully argued that Wells cannot use a "justification" defense, which is where a defendant claims that an otherwise illegal act is legal in certain dire circumstances. For example, it would not be a crime to break into a neighbor's home to save someone from a fire.

The Missouri Court of Appeals for the Western District in 2008 ruled that a man named Robert Cox could not use a justification defense in a case similar to the Wells case. Police found marijuana in Cox's car and he said he needed it for medical reasons.

Firefighters discovered Wells' stash of plants in his basement "grow room" when they responded to a fire Jan. 16, 2008. The fire not only destroyed Wells' home but seriously damaged a neighbor's house. Wells said he left a candle burning when he went to bed that night.

At some point that night a sheriff's deputy arrived and Wells was arrested and charged with the Class B felony of production of a controlled substance.

The stakes are high. Wells, who has no criminal record, could go to prison for five to 15 years if convicted.

Wells rebuilt his house on Pond Hollow Drive and has been out on bond.

In November, prosecutors re-indicted Wells, adding a lesser charge of possession of a controlled substance, a Class C felony. This carries a penalty ranging from up to a year in county jail to as much as seven years in prison.

"It's a fall back position," said John DeVouton, the first assistant prosecuting attorney.

With the second charge, jurors who might be sympathetic to Wells' situation won't necessarily have to convict him of a crime that could put him away for 15 years.

I first wrote about Wells in June. He had called to talk about his case. He acknowledged that he grew and used marijuana for medical reasons. He said back then that he'd already waited too long to respond to a plea deal that would have included six months of house arrest and five years of probation. He was hesitant to plead guilty because he would lose his right to appeal.

Wells says he had expected Schneider to rule the way she has and he still plans to have his day in court. He believes he has a better chance of prevailing on appeal than at trial.

"The law is going to catch up with this eventually," he said.

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