Editor’s note: This article is by Sharon Parquette Nimtz, a freelance foodwriter.
Tristan Thayer was diagnosed with leukemia in 2002.
Tristan was able to function while the cancer sapped his strength because he smoked cannabis. He grew the weed and consumed it to counteract the debilitating nausea caused by the leukemia, five rounds of experimental chemotherapy and two stem cell transplants.
He continued to live a full life until he died on May 29, 2005, at the age of 25.
His mother Sue Thayer told me: “Cannabis not only made it possible for Tristan to eat enough to recover every time they killed his immune system, (but) it helped him assimilate his life in his time of dying.” Tristan told her that each round of chemotherapy was like “jumping through a ring of fire,” and that the pills they had to offer made him “sick and unable to function.”
“Tristan had no time to waste,” she said.
Ironically, Tristan enjoyed vibrant health from the time of his birth. It was his younger brother, Max, who has had long term medical problems. Max suffered a medical emergency when he was an infant that left his kidneys scarred. For most of his life, he has suffered a lack of appetite and chronic nausea which made it almost impossible for him to eat and to participate in many of life’s routines. His schoolmates never knew if he could be expected to attend classes on any given day.
Max needed a new kidney and keeping as healthy as possible was essential.
Before he died, Tristan realized that Max’s symptoms might be alleviated by smoking marijuana, but Max was reluctant. “I was surprised,” he says now. “It seemed so strange, and so I didn’t really give it a chance.”
After Tristan’s death in 2005, Max was so ill that he considered quitting school, but then started smoking marijuana to alleviate his symptoms.
The difference was dramatic. He smoked as much as he needed – before the nausea could take hold in the morning and before meals – and he started feeling better. His senior year he “aced a lot of classes” and got involved in activities. “I had a really good time,” Max said. “I just felt… better.”
Planting the seed
In 2004, the Vermont Legislature passed a law allowing patients with cancer, AIDS, HIV, or multiple sclerosis to grow one flowering marijuana plant.
Although law did not include the symptoms of kidney disease, Sue Thayer, who had seen the benefits the plant offered Tristan, started growing marijuana for Max as part of her legendary perennial gardens. (Her property is part of a local gardening tour every year.) Planting the gardens was a kind of grief therapy for her, in fact, Tristan’s grave is the center of one of them.
In July 2007, an amendment was passed to the Medical Marijuana Bill that included patients with debilitating illnesses that produce persistent and intractable wasting syndrome, severe pain, nausea, or seizures – exactly Max’s symptoms.
There was only one hitch: Under the law, medical marijuana cannot be grown outside.
No matter how much land you have, no matter how discreet you might be, no matter your gardening skill, medical marijuana must be grown inside in spaces dedicated to that purpose, where electric lights and climate control must be utilized (using electricity and heating/cooling power that might double your household energy cost) to simulate the natural seasons (which are available free outside), and where chemical fertilizers and pesticides must be used to simulate natural growing conditions.
On Aug. 2, 2007, the Vermont State Police came to the Thayer’s house, destroyed the plants and charged Sue with growing an illegal substance.
“It was heartbreaking,” says Sue, “to see those beautiful plants destroyed and know what benefit they would have been to Max, remembering what comfort they had brought to Tristan.”
A legal cloud has hung over the Thayer family the three years since.
In August the Vermont Supreme Court denied Sue the chance to tell her story in a juried trial; that is, she may not mention kidney disease and its symptoms. She may not mention Tristan or Max.
Her defense was to have been one of “necessity,” which admits the criminal act but claims justification. In other words, the harm avoided (Max’s debilitating symptoms and possible death) must outweigh the harm caused (by planting marijuana), and the situation must present no reasonable legal alternative.
And indeed there was none when Sue planted the marijuana, because it was not legal to use marijuana for the alleviation of Max’s symptoms. Once the law was amended to include Max’s symptoms, in the mid-summer, she lost that justification because she would then be allowed to grow marijuana, but only inside. So what is her crime? Not that of growing marijuana, but of growing it outside.
Indeed, as Chief Justice Paul Reiber put it in the findings, “The irony is that a statute that aimed to decriminalize certain uses of medical marijuana has effectively criminalized defendant’s actions in this case.”
A conversation about marijuana is difficult to have – though volumes have been written – because there is something about it that makes people uncomfortable.
But for a mother who has lost one child and sees the possibility of losing another, planting a seed in the ground is a different matter.
In April, Max, 22, underwent a successful kidney replacement operation. He is attending college and gradually regaining his strength, though he will remain on a regimen of drug treatments for the rest of his life. He has started a blog about his mother’s court case.
On Nov. 15, over 60 people turned out for a rally on the steps of a Rutland District Court to support Sue at her status conference. They carried signs that said “Wanted: Commonsense and compassion,” and “Don’t waste tax dollars,” and that afternoon began to file into the courthouse where they filled every available seat in the courtroom.
At the status conference, lawyers from both sides were asked by Judge Theresa DiMauro to file pretrial motions by the end of December.
When asked what a jury trial would look like with no possibility of a necessity defense, Sue’s lawyer, Daniel Sedon, of Chelsea, looked perplexed. “I’m going to have to come up with something really creative,” he said. Jury drawing is scheduled for February.
