Benton Mackenzie and his wife, Loretta, chat during a during recess in a court hearing in June.


A Scott County judge Tuesday denied a motion to fire the attorney of an Iowa cancer patient charged last year with operating a marijuana-growing operation.

In an impassioned plea to the court, Benton Mackenzie told Judge Henry Latham that he should be allowed to tell jurors that he grew marijuana to extract cannabis oil to treat his terminal cancer.

Latham in May ruled that the jury cannot hear that evidence because the state of Iowa does not allow for such a defense. Iowa does not allow medical marijuana.

Mackenzie told Latham during the second day of jury selection in his trial that his appointed attorney, Joel Walker, lied to him and said that an interlocutory appeal on the issue had been filed and denied by the Iowa Supreme Court.

That appeal was never filed, Mackenzie said.

If the high court opts to accept an interlocutory appeal, which is rare, all proceedings in the case would stop until it makes a decision on the request.

Walker was appointed to represent Mackenzie earlier this month after the law license of his original attorney, Lori Kieffer-Garrison, was suspended.

Walker said Tuesday that he thought the appeal had been filed before he was appointed to the case.

The only appeal filed with the Supreme Court, however, sought a reversal of Latham's decision to deny a request to suppress evidence, Walker said.

Mackenzie argued Tuesday that he has a right to life and that he would not receive a fair trial if he cannot testify to the reason why he grew marijuana.

Testifying truthfully, he said, would result in contempt charges against him, he said.

"Every time I turn around, I'm either facing death or jail, and I don't know what to do at this point," Mackenzie said as he wiped away tears.

Latham denied Mackenzie's motion to fire his attorney and ruled that Walker has done an exceptional job representing Mackenzie in such a short amount of time on the case.

Latham told MacKenzie that discharging Walker "would be an injustice to you" and would effectively delay the trial.

After two days of jury selection, no jurors have been chosen to hear the case.

Eighteen prospective jurors have been retained for further consideration.

Attorneys and Latham want to question and retain a panel of 24 prospective jurors and then will narrow down that group to 12 jurors and three alternates.

Each attorney has six peremptory strikes, which can be used to dismiss a juror without stating a reason.

Mackenzie, 48; his wife, Loretta, 43, and son Cody, 22, are being tried this week, more than a year after their June 2013 arrests. 

Benton and Loretta Mackenzie are charged with manufacturing marijuana, possession and conspiracy. Cody Mackenzie is charged with misdemeanor possession of marijuana and paraphernalia.

On June 21, 2013, deputies searched the Long Grove property of Mackenzie's parents, Dorothy and Charles, and found 71 marijuana plants, according to court documents.

During the search of the Mackenzie property, deputies say they found marijuana in Cody Mackenzie's bedroom, according to court documents.

A fourth defendant, Stephen Bloomer, pleaded guilty Monday to manufacturing marijuana. He faces up to five years in prison at his Aug. 21 sentencing and is expected to testify in the other cases.

Prospective Scott County jurors have been asked about their familiarity of the case, their opinion of Iowa marijuana laws and whether they understand basic legal principles, such as the presumption of innocence.

Many of the prospective jurors questioned have said they are unfamiliar with the case.

Mackenzie, who uses a wheelchair, has sat near the door of the small courtroom during jury selection.

Benton and Loretta Mackenzie were dressed in blue, green and red plaid Scottish kilts Tuesday.