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Judge to decide if Brown goes to trial

Angela Brown, left, visits with supporters, including Patrick McClellan, outside the Chippewa County district court in Montevideo. McClellan, of Minnesotan for Compassionate Care, testified at the Legislature for the bill that will allow the use of medical cannabis. He made the trip from Bloomington to show support for Brown, saying he was "outraged" when he learned of the charges against her. (TRIBUNE/Tom Cherveny/File)

MADISON — Attorneys in the Angela Brown medical cannabis case have had their say, and now it’s up to District Judge Thomas Van Hon to decide whether the 38-year-old Madison mother’s decision to administer medical cannabis to her teenage son to relieve his suffering from a traumatic brain injury represent the probable cause necessary to bring a charge of child endangerment to a jury of her peers.

Defense Attorney Michael Hughes, of Bend, Oregon, filed his final arguments with the court Friday asking the judge to find that there is no probable cause for the child endangerment charge and dismiss it. In motions filed last month and on Friday, Hughes told the court that the child endangerment statute filed against his client is for cases where controlled substances are being “sold” in the presence of children, and where there is “criminal behavior that involves knowingly causing or permitting a child to be in a dangerous situation.’’

In her response, Assistant Lac qui Parle County Attorney Rebecca Trapp stated that the fact Brown admitted administering an oil containing THC to her son shows that there is probable cause to bring the charge. “The facts of this case clearly shows that the defendant gave away and distributed, as defined by the statute, THC oil to her child in violation of the law.’’

THC is the active ingredient in marijuana, and is defined by state law as a controlled substance.

Hughes acknowledges that the statute broadly defines “sale’’ to include instances where drugs might be given away or distributed to a potential customer or accomplice.

But he argues it is not meant for a situation where a mother administers a minute amount of the oil to stop her son’s self-harming behavior and pain. “Yet is this really the type of sale contemplated by a controlled substance statute?’’ he stated in his brief.

He also noted that in cases where the statute has been charged, the offense has typically involved cocaine, heroin and other controlled substances in large quantities.

Brown administered only a drop or two of the oil at a time, and the vial she obtained only contained a minuscule amount of THC.

Most important, the defense attorney stated, is that the medical cannabis was formulated to counter the psychoactive effects of THC. Brown could have legally obtained recreational marijuana when she made the trip to Colorado to obtain medical cannabis for her son, the attorney pointed out.

She chose instead to go to medical laboratory to obtain medical cannabis formulated for the medical needs of her son and his traumatic head injury. Not having a prescription, the laboratory could not sell her the oil but instead gave it to her. It was formulated to have a ratio of cannabinoid oil to THC that made it non-intoxicating.

Hughes also argues that the judge should dismiss the charge in the “interest of justice.’’ He pointed out that the state of Minnesota has approved legislation that will allow medical cannabis beginning July 1, and that there is ample evidence to show that Brown’s son would be certified as an eligible patient due to a history of seizures.

Trapp argues that the state set a date for the implementation of the law, and did not give a “free pass’’ to people beforehand. She also pointed out that Minnesota law does not allow parents to “self-diagnose, self-prescribe, and self-administer a controlled substance to anyone, especially to a child.’’

Hughes responded: “(They) did not just willy-nilly decide to “self-treat” their son with cannabis.

They just happen to live in a state that did not have access to medical cannabis. Additionally, the Brown family had tried nearly all other conventional treatments before they decided to have their son try medical cannabis oil,’’ said the attorney.

The judge is expected to rule on the motions within 90 days. He can either dismiss the charge as asked by the defense, or find that there is probable cause to bring it forward. Hughes and Brown have already indicated that they are prepared to bring the matter to a jury trial if the charge is not dismissed. In that case, the final word on whether or not Angela Brown’s decision to administer medical cannabis to her son makes her guilty of child endangerment would be a jury’s.

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Angela Brown faces charges

Tom Cherveny

Tom Cherveny is a regional and outdoor reporter with the West Central Tribune in Willmar, MN.

(320) 214-4335