Cuomo Updates Criminal Justice Issues

Judge's Widow Grateful for Marijuana Plan

, New York Law Journal

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Gov. Andrew Cuomo delivering his fourth annual State of the State address
Gov. Andrew Cuomo delivering his fourth annual State of the State address at the Empire State Plaza Convention Center in Albany Wednesday.

ALBANY - For the widow of Brooklyn Supreme Court Justice Gustin Reichbach, Gov. Andrew Cuomo's State of the State announcement Wednesday that New York will permit limited use of medical marijuana was a bittersweet moment: "sweet" because Reichbach would have strongly approved; "bitter" because he isn't here to see it.

"I can't stop thinking about how Gus would react to this moment," said Ellen Meyers, who lost Reichbach to pancreatic cancer in July 2012, when he was 65. "I think he would be absolutely ecstatic that the governor is behind it. This was something really important to him."

Reichbach's "last public act," according to Meyers, was a May 16, 2012 op-ed column in The New York Times in which he publicly revealed his use of marijuana to counter the devastating effects of chemotherapy and argued for its legalization for medicinal purposes. At the time, key lawmakers said Reichbach's self-exposé gave considerable credibility to the issue of medical marijuana and greatly advanced a cause (NYLJ, May 21, 2012) that had long been on the legislative fringes.

But it never got off the ground, with the Assembly passing one-house bills, the Senate ignoring the matter and the governor sitting on the sidelines without expressing an opinion.

That changed Wednesday, when Cuomo delivered his fourth State of the State address, revealing that the administration will tap existing statutory authority to allow as many as 20 hospitals to prescribe marijuana to patients suffering from cancer, glaucoma and other disorders as approved by the health commissioner.

The administration will use The Antonio G. Olivieri Controlled Substances Therapeutic Research Program (Public Health Law Art. 33-A), to launch a pilot program that will provide medical marijuana for qualified patients. Cuomo said the program will allow participants to seek relief while providing empirical data to inform future policy.

Meyers said her husband remained engaged on the issue until his final days.

"He was a man who was engaged in issues his whole life and took courageous stands on lots of different issues," she recalled. "This was his final one. What a terrific part of his legacy."

Reichbach found marijuana helped him overcome nausea and sleeplessness, and to recover part of his appetite, Meyers said. For a good year after her husband died, Meyers said she was still hearing from readers who had been moved by his op-ed, "A Judge's Plea for Pot."

"The piece had a profound impact on people, especially since it was written at the end of his life when he could have withdrawn," she said. "But he felt it was important enough to make a stand. I read the piece when he drafted it and when he edited it, but when I saw it in print, I cried. He was really able to communicate what it was like, both the sickness and the treatment, in a way that people understood."

Michael Kennedy, a criminal defense lawyer in Manhattan and Reichbach's close personal friend, said he and the judge discussed the implications of going public with his illegal use of marijuana.

"During the last several months of his life, he said he would really like to write something because marijuana had become so significant in allowing him to be able to sleep, to regain an appetite and gave him a better quality of life," he said.

Kennedy said Reichbach asked about the immediate repercussions of admitting that he, a sitting judge, was openly violating the law, and also about potential impact on his pension if he went public. But the judge ultimately concluded that the value of going public would transcend any consequence from his civil disobedience, Kennedy said.

"He tried marijuana because of the devastating impact of the therapy," Kennedy said. "It was quite an awareness, a eureka moment, when after one session of chemotherapy he actually lit up and enjoyed a joint and within minutes began to calm down, the nausea was leaving him and within an hour an appetite that was nearly gone had returned to the point where he could eat lightly. But most importantly, at night he could have a puff and actually go to sleep. These were blessings beyond belief for him."

Kennedy said Reichbach never used marijuana while working or prior to taking the bench. He said the judge never regretted penning the op-ed.

"One of the things he felt most heartened by is the response he got from fellow judges and lawyers and people who suffered, not only in this country, but Europe and Canada," Kennedy said. "It was so fulfilling and he said, 'I may have found my legacy.' That's how proud he was of the piece. And I think that legacy is bearing fruit."

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