I'm trying to be philosophical about it, too. It's hard when our prosecutors took a large dose (a small bon mot, if I may be allowed) of abuse from defense counsel during the trial. They did an excellent job, appropriately fought the improper necessity instruction, and that instruction carried the day. C'est la vie, I suppose.

My favorite part?

quote:

---

"Potter County has chosen not to follow the state law that says they could write tickets for people like this but instead arrest and jail them," said Stevens' defense lawyer Jeff Blackburn.

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In light of the fact that the defendant was arrested by the city PD, I'm glad to know our influence is so far-reaching.

Scott, your influence may be further-reaching than just the APD. It appears from the Defendant's interview that he is no longer going to smoke marijuana, and instead is going to "try the pill substitute with the lower success rate". So, philosophically, you rehabilitated the Defendant!

I also noticed that KVII was particularly successful in encouraging other "medical" users to move to New Mexico.

Was the defense expert actually an employee of the State of New Mexico?

Well the case did occur in "Pot"ter county.

sorry, I just couldn't resist.

Jury nullification sometimes makes me want to throw up.

Can I get prescribed some weed to settle that kind of nausea?

Its not hard to feel sorry for a dude with AIDS when you think of all those scrawny AIDS victims all skin-and-bone wasting away... Maybe if they smoke dope they will get the munchies and put on a little weight.

wow.

Fresno, shouldn't that be:

Wow, man. Or

Oh, wow, man.

?

Actually, Alex, that is one of the arguments raised by those who favor the smoking of medical marijuana for these types of afflictions -- that the pot munchies enable them to eat when they otherwise would be unable to, whereas the pills and other substitutes don't.

Note that I am taking NO position on the subject, just relaying what I've been told during legislative discussions on the topic.

Speaking of ... if courts are going to (improperly) grant a necessity instruction in these cases, I guess there is no need to pass a medical marijuana bill anymore. Problem solved!

Glad we could help ... over our frantic objection.

Fred you're not feeling sorry for the 93 year old guy because you're so close to his age are you

BTW, I came by to see you last week with my beautiful baby girl and you were gone !

When do we get to see the baby girl?

The judge simply failed in his role as a legal gatekeeper. He allowed the affirmative defense, despite clear legal authority for barring it. Given that the State can't appeal an acquittal, there is nothing to be done at this point. However, this is one case that shows the advantage of an elected judge over an appointed judge.

An appointed judge would face little challenge to his authority. A lifetime appointment would virtually insulate the official from any review.

With an elected judge, prosecutors may exercise their political rights and oppose the judge at the next election if they decide that he/she is deliberately or ignorantly failing to enforce the law as written. Why shouldn't the issue be subjected to public debate?

More about the 'clear legal authority for barring' the necessity defense, please? When I read the first post I could not believe such a defense would fly.

The Supremes upheld Congress's "firmly established" power to regulate "purely local activities . . . that have a substantial effect on interstate commerce" - therefore, under the supremacy clause states cannot make such use legal. A well-written, sound legal decision, although the justices found it troubling that congress had yet to change the classification (no known medical use).

Raich does not nullify a necessity defense. Any affirmative defense admits to the prohibited act - but argues that the act was justified on the basis of the defense. Given that we are all likely to see this come up again, please share the controlling legal precedents for denying the defense. First reactions aside, think this one through. My initial knee-jerk scoffing aside, it seems like a reasonable defense. Cites, please, for barring it? 'Stoner traffic stop' attempts to use it can easily be shut down, but as J found out, in a real medical situation . . . specific controlling precedent for denying the defense would have helped. J, how much for a transcript?

In the courtroom (as opposed to the court of public opinion), this was a case where the real evidence simply did not match up with section 9.22. So, we begin with the "clear legal authority" being the statute which authorizes the defense in the first place.

The problem in this case was that the defendant equated -- successfully in the eyes of the judge and then the jury -- "necessity" with "I felt like I needed it." Nice enough for a TV drama, but it doesn't square with the circumstance in which the Penal Code allows submission of the necessity defense. There was no evidence that on the day in question the defendant had suffered from the violent nausea/vomitting he claimed to periodically experience. Altogether, there was no evidence to support a belief that possessing/smoking marijuana was "immediately necessary to avoid imminent harm."

Nor was there evidence of a Texas doctor prescribing it (though there was evidence that sometime back a New York doctor had told him he "should" use it). As it actually played out, the real elements of section 9.22 simply weren't proffered. But the judge didn't like the case, and it gave the defendant's run at jury nullification that much more traction. The jurors who talked to us also shared that they were looking for more CSI-caliber police work on the case, but that's a topic for another thread.

That may not answer your question, but that's how it went down.

What CSI police work? The defendant was found with the marijuana in his possession and admitted it was his. What fancy lab tests, etc. would have made the case against him any stronger? Honestly, CSI may have may teens more interested in science, but total unreality of the shows is giving the public a very inflated view of what forensic science is capable of these days. And CSI isn't the only shows; has anyone seeen the new "reality" forensic science show that has "360" in its name? It's a cable channel show--A & E, I think.

Janette A

Thanks, Scott, that's what I meant. The weak link was the judge, who apparently was unwilling to apply the legal standard to the use of an affirmative defense: is there any evidence to support every element of the affirmative defense. In the absence of evidence for any one of the elements, the affirmative defense is not given.

Otherwise, you leave the jury able to make an irrational decision, as they did by approving a defense that lacked evidence, only emotion, to support it.

I worked a case involving the necessity defense back when I prosecuted in Harris County. It was an abortion clinic case. Multiple defendants claimed they could use the necessity defense to take over the clinic. The judge denied the affirmative defense; they were convicted; and it was affirmed on appeal.

I imagine liberals in favor of decriminalization of marihuana would not want a squishy standard (such as the one applied in Potter County) applied to anti-abortion protestors. It's got to be the same rational standard for all cases.

Thanks, Scott & JB. I feel better now. When will the "Judges Gone Wild" video be up on YouTube? Do you think the elements can be met in some cases?