Motion Denied

Our motion to reargue was denied last week, this week a status conference has been set for Monday, November 15 in Rutland District Court at 3 PM in room 2. It is open to the public, so all are invited to see how justice is executed in Rutland. As we move forward it is important for the State’s Attorney to understand that the community does not believe this prosecution serves the interest of justice.

The Therapeutic Use of Cannabis Act required my mother to break the law by buying marijuana from illegal sources, which is truly insulting. She chose instead to break the law by growing medicine that she could ensure was safe. She made this difficult and courageous choice because it was the least harmful option available, both to me, and to society. It is the height of hypocrisy to accept the use of cannabis as a legitimate medical treatment but leave those in need to the black market and prosecute them like common criminals.

Our family is grateful for all of the support we have received, and we would like to thank Sharon Nimtz for authoring the following for the Rutland Herald. I hope we can begin a civil and open dialogue about these difficult issues.

The State vs Tristan and Max

by Sharon Parquette Nimtz

Tristan Thayer, the eldest of Sue and Alan Thayer’s three children, was diagnosed with leukemia in 2002 but he continued to live a full and giving life until he died on May 29, 2005, at the age of 25, from the effects of that leukemia. Blessedly, he died literally in the bosom of his family.

One of the reasons Tristan was able to live so fully while the foul disease continued to sap his strength and energy was the marijuana he learned to grow so beautifully and, it must be said, illegally. Planting seeds in spring and harvesting in fall, according to nature’s dictates, he was able to smoke the ‘weed’ to counteract the debilitating nausea caused by the disease, the five rounds of experimental chemotherapy, and the two stem cell transplants, one from himself and one from his younger brother, Max, with which it was treated.

His mother told me, “Cannabis not only made it possible for Tristan to eat enough to recover every time they killed his immune system, it helped him assimilate his life in his time of dying.” Tristan told her, she said, “that each round of chemotherapy was like jumping through a ring of fire, and the pills they had to offer just made him sick and unable to function.” And then she says, “Tristan had no time to waste.”

Brother Max thinks that the reason that Tristan was able to meet his death so beautifully and generously was due to ”…the gentle relief that marijuana provided him. He could accept his life, find joy in it and see it for what it had taught him; cannabis was a conduit for that insight.” The plant is historically the choice of seekers, after all.

Ironically, Tristan and their sister, Lucy, were the Thayer children who enjoyed perfect and vibrant health from the times of their births. It was the youngest, Max, who suffered a medical emergency when he was an infant that left his kidneys scarred, around whom the family gathered protectively and over whom they worried since he was 28 days old. For several years Max suffered a lack of appetite and chronic nausea which made him almost unable to eat, certainly unable to flourish, and that caused him to be unable 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 could 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.”

In 2005, Max almost failed out of school. He considered quitting. “I just didn’t feel up to it!” Tristan was gone, but Max decided to give the marijuana a chance. The difference was dramatic. He smoked as much as he needed – before the nausea could get to him in the morning and before meals – and he started having success.

In the fall he went back to school for his senior year. It was a splendid year. “I aced a lot of classes. I got involved in activities. I had a really good time. I felt better.”

In 2004, “An Act Relating to Marijuana Use by Persons With Severe Illness” was passed in Vermont that allowed one flowering plant to be grown by patients with cancer, AIDS, HIV, or multiple sclerosis. But kidney disease and Max’s symptoms were not included in it. In spring, Max’s mother Sue planted marijuana for him. Illegal? Well, yes, but what mother would quail before illegality when her child’s well-being was at stake; when she knew – had seen them up close and personal – that the effects of it could play a crucial role in maintaining her child’s life.

Sue is a Master Gardener. Her gardens up in the mountains east of Wallingford are legendary and regular attractions on garden tours – Tristan’s grave is the center of one of them – and she grows naturally and organically.

In July of 2007, when the gardens were thriving, 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: Medical marijuana must be grown inside.

No matter how much land you have, no matter how discreet you might be, no matter what healthy gardens you are capable of growing, Medical Marijuana must be grown inside where room(s) must be dedicated to that growing, 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 nature’s own healthy growing conditions. Not exactly the kinds of things that severely ill people should be ingesting, and a whole lot more work than they can probably do and possibly afford.

Planting the gardens had been a kind of grief therapy for Sue. She had planted them at just about the anniversary of Tristan’s death. The marijuana plant is a beautiful plant – more beautiful, one might judge, than its cousins Foxglove, Poppy and Datura which produce, respectively, digitalis, opium, and atropine, all potentially useful drugs but also potentially deadly, and all of which you can see growing in most of our gardens. There is nothing deadly about marijuana or the useful chemical it produces, Tetrahydrocannabinol (THC), which, Wikipedia notes, is used for recreational, medicinal and spiritual purposes.

On August 2 of that year state police showed up at the Thayer gardens, hacked the plants down, destroyed them, 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.”

Although that legal cloud has hung over the Thayer family these three years, it was absolutely glorious when Easter Sunday of this year found Max traveling to Burlington to get a new kidney! The operation was successful, and Max is gradually getting used to feeling better, learning to eat, going to college, and building up his strength, though he is and will be all his life on a regimen of drugs that must be impeccably managed. He has started a blog about his mother’s court case. He is an amazingly intelligent, clear-thinking and passionate but gently speaking 22-year-old.

In August the Vermont Supreme Court denied Sue the chance to tell her story in a juried trial.

Her defense is 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 alleviation of Max’s symptoms. Once the law was amended to include Max’s symptoms, 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.”

This story, I think you’ll agree, is an amazing story – a tragic one, heartrending, but with glimpses of an almost otherworldly joy, and it must be heard!

A conversation about marijuana is difficult to have – though volumes have been written –  because there is something about it that makes people uncomfortable. But talking about a mother who has lost one child and sees the possible loss of another, and the concomitant misery the disease produces that can be alleviated by the planting of a simple… plant,  is a different matter. I cannot think of any mother who would not do everything in her power to keep her children safe and pain-free in the face of disease and death, no matter its legality.

I would. Wouldn’t you?

Sharon Nimtz

Sharon’s writing can be found at

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10 Responses to Motion Denied

  1. Kimberly Ridlon says:

    Dear Max,
    I’ve reached your site via Tom French’s Caringbridge page. If your Mother is such a menace to society, we are all doomed! Why stop with the Rutland Herald? Surely the story of your family would light a spark (no pun intended) in a bigger venue. I am very willing to help by writing whatever you need and sending it to the person/place that you feel would be most helpful. Where and when on November 15th? If I can’t make it on that day, I will send along some good karma.

    You are all in my thoughts.
    Kimberly in Cuttingsville

    • Lindsay Arbuckle says:

      Scott and I echo Kimberly’s thoughts and would love to write a letter on your behalf. Can you give us a name and address? Or how else might we help? Nov. 15th is on our calendar and I hope that at least one of us can make it.
      Best wishes from us!

    • winterthayer says:

      Dear Kimberly,
      Thank you, and I agree, if Rutland has the time and money to spend prosecuting my mom, they must be coming downreally hard on actual criminals. We have heard interest from some different news media, so although it was never hope, it may indeed be blazing soon. If you would like to send a letter or email to State’s attorney’s office, their contact info is here. I have heard from many people that he is a decent and compassionate man, and that he should be approached on that basis. Also helpful are letters to the editor, the Rutland Herald’s can be sent here, or mailed. On November 15th we will be arriving at the Rutland District Courthouse on Merchants Row around 2pm for our status conference at 3pm, in Room 2. We hope you can make it and we appreciate your thoughts and support.


  2. Annelyse and Fred Allen says:

    Our heart is with you and your family, specially your wonderful mother in these trying times. You’d think she ‘s had enough ordeals in her life that she deserves a break. We are going to write to the Rutland Herald, and to the prosecutor. However, as regards the prosecutor, a friend of ours who is a lawyer says that, in order to make sure that our letter is not counterproductive, we should clear with your Mom’s lawyer if he gives us the thumbs up. Can we do that?
    Also, we can’t be in Wallingford on November 15th, unfortunately. Coming back on the 19th only. So, we won’t be able to be in court in Rutland on that date.
    We are leaving today for a business meeting in Maine this morning, so, we’ll miss the meeting at Sal’s as well… Will your Mom’s lawyer be present? Because it would be so helpful if he could indicate what one can and should write in order to help, and what one should not do for fear of being counterproductive. We are eager to read your reoprt on the meeting and will be in touch later in the week when we come back from Maine on Tuesday.
    Hang in there, and give your Mom a bigh hug for both of us, please,

    • winterthayer says:

      Annelyse and Fred,

      Thank you. It is good to know you are thinking of us, and we greatly appreciate your support in this difficult time.
      My mom definitely deserves a break, I have been hard enough on her already, and with people like the two of you helping maybe she can finally get one. There are not many things that can hurt our case at this point, the facts are all public record and can be found in the Supreme Court decision, so you are free to say anything you feel. We are proud of how we have conducted ourselves, and absolutely willing to stand by our actions. We feel fortunate to have so many wonderful friends willing to stand with us. Thank you for the encouragement, and I look forward to talking with you.

  3. Shawn Crowley says:

    Max and Sue,

    My mom passed along your blog (Max, you are a better legal writer than many students here at Columbia), and I would love to know what I can do to help. I was thinking of at least writing a letter to the editor of the Herald (emphasizing that I am a law student and a member of the East Wallingford community), but please let me know what more I can do.

    My memories of playing in your gardens and running around at the “Last Rose of Summer” parties are some of my most cherished.

    Stay strong,


    • winterthayer says:


      That is so nice of you to say, it speaks highly of CCV. Your family’s support has been wonderful, and a letter from you would be valuable and much appreciated. I am not sure what more we can do yet, but I will keep people posted here and on the Friends of Sue Facebook page.
      I remember the Last Rose parties fondly myself, and hopefully we will get a First Rose party together to commemorate Tristan when this is all behind us. Thank you.

  4. Judy Sugarman says:

    Geoff & I wish that we could be there on the 15th to show our support. We hope that the Vermont courts see the foolishness of this case now!
    The link to this page has been posted on my Facebook page.
    Judy Sugarman

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