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Tucker County woman appeals marijuana conviction

by Paul Darst

STAFF WRITER

A Tucker County woman's solution to relieving the symptoms of a degenerative disease now posses a legal question for the state's high court.

The West Virginia Supreme Court of Appeals heard oral arguments in the case of The State of West Virginia vs. Donna Jean Polling on Wednesday in Harrison County.

Polling's case was one of four the high court heard as part of the Legal Advancement For West Virginia Students, or LAWS, program.

Polling appealed her conviction on charges of growing marijuana, arguing that a Tucker County Sheriff's deputy conducted an illegal search of her home, and that she needs the marijuana to relieve the symptoms of multiple sclerosis.

"Mrs. Polling went to local doctors and to Johns Hopkins University because of the multiple sclerosis," said Janet D. Preston, Polling's attorney. "She tried many different medications seeking to alleviate the symptoms.

"One day, this disease will paralyze Donna Polling. One day, it will kill Donna Polling."

Polling turned to purchasing marijuana after reading about its possible effects in a magazine article, Preston said.

She started growing it herself because she feared getting caught buying it, she said.

Polling was charged after a deputy came to her house to serve a subpoena on an unrelated matter, according to court documents. After getting no answer, he said he looked in the front door window and saw several marijuana plants in the kitchen.

He then obtained a search warrant for the home.

In her arguments, Preston maintained that the search was illegal because the deputy should not have looked in the window.

The part of Polling's defense that was predominant during the hearing was Preston's argument dealing with "compulsion."

During the jury trial, the defense wanted to submit evidence that Polling was attempting to preserve her health by smoking the marijuana, according to court documents.

That argument was not allowed in circuit court, which Preston argues was premature. She maintains the jury had a right to hear why Polling was growing the marijuana.

"(Polling) asked me if I killed somebody, wouldn't I be able to tell the jury why?" Preston told the court.

Justice George M. Scott pointed out that, because growing marijuana is illegal, regardless of the reason, such a ruling could lead to jury nullification of the law.

But Justice Larry V. Starcher asked why the jury should not be allowed to hear Polling's reasoning.

"Why shouldn't compulsion be allowed?" he asked state's attorney Leah Perry Macia.

She pointed out that Polling had not tried all available prescription drugs.

Justices are expected to rule on the matter sometime this spring.

Meanwhile, Polling is serving a five-year probation sentence after issuing a conditional guilty plea in the case.

That plea will be withdrawn if the court rules in her favor.

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