Judge won't let Franklin Township man cite medical need for marijuana - 7/29/09

[Derek Rosenzweig]

This is fucking outrageous! If the government is going to prosecute someone, the least they can do is allow the person to defend himself! How the hell can you put a moratorium on the truth?

From http://www.nj.com/news/index.ssf/2009/07/judge_wont_let_franklin_townsh.html :

Judge won't let Franklin Township man cite medical need for marijuana
by  Jennifer Golson/The Star-Ledger

FRANKLIN TOWNSHIP -- A Somerset County man won't be able to use multiple sclerosis as a defense for the 17 marijuana plants police found growing behind his house, a Superior Court judge ruled today.

A claim of personal use simply does not apply to the charges against Franklin Township resident John Ray Wilson, Judge Robert Reed said, following a hearing today in Somerville.

Wilson, 36, is accused of first-degree maintaining or operating a drug-production facility, second-degree manufacturing and third-degree drug possession. If convicted, he faces up to 20 years in prison.

A helicopter pilot spotted marijuana growing behind the house Wilson rented on Skillmans Lane last August and alerted State Police. Detectives found well-worn trails leading to the plants, some as tall as 6 feet. Authorities also found Miracle-Gro in a shed and psilocybin mushrooms and bags of processed marijuana in the dwelling, according to court papers.

Wilson said he uses marijuana to help alleviate the pain and other symptoms that have plagued him since 2002.

In March, Reed denied the defense's motion to dismiss the charges, saying there is no personal-use exemption for the cultivation of marijuana.

Deputy Attorney General Russell Curley filed a motion in April asking Reed to bar defense attorney James Wronko from asserting personal use as a defense and from referencing Wilson's medical condition at trial.

The criminal case is progressing as the state Legislature contemplates the New Jersey Compassionate Use Medical Marijuana Act. If it passes, New Jersey would become the 14th state to legalize medical marijuana.

During today's hearing, Reed cited the bill but said the establishment of medical marijuana for personal use as a state policy or as a defense to criminal liability is a matter for the Legislature to decide and not for a court to create.

In his brief, Curley echoed the argument he raised in March.

"A person who maintains or operates a controlled dangerous substance production facility for planting, propagating, cultivating, growing or harvesting marijuana is, in fact, guilty of maintaining or operating a controlled dangerous substance production facility, regardless of whether the marijuana is produced for distribution or personal use," he wrote.

During the hearing, Curley said allowing information about multiple sclerosis is merely a way to garner sympathy and could encourage jury nullification. Jurors might opt to acquit Wilson, believing he had a reason to break the law.

Wronko said the jury should be allowed to hear the circumstances surrounding the plants. If not, they "could readily speculate that he was operating an illegal commercial grow operation and must have done so for years to develop a market for the marijuana," he wrote in court papers.

Omitting Wilson's disease would keep him from addressing the issue of continuous use, one of the elements of operating a production facility. He would not be able to testify this was the first and only crop he has tried to grow, Wronko said.

Barring the medical-use argument, "is basically tying our hands unfairly," Wronko said in court.

Reed said the personal-use defense does not negate the elements of the production facility or manufacturing offenses. He also said introducing evidence of Wilson's disease "would create a powerful emotional argument in favor of jury nullification because it gives defendant a sympathetic reason for breaking the law."

Reed said he is mindful of the danger in becoming a "judicial legislator."

"When judges appropriate legislative pronouncements and executive prerogatives, they demean those branches of government, and diminish the stature of the courts," Reed wrote. "If medical marijuana use is to be recognized as an exemption to our criminal law, the legislative process must produce that result. This court will not do so."

A case such as Wilson's is precisely why the Legislature needs to pass a medical marijuana bill as soon as possible, said Rosanne Scotti, director of the Drug Policy Alliance of New Jersey, a major proponent of the bill. The fact that this case is coming up and the defendant faces such a harsh penalty "should light a fire under the Legislature to do something, because the ball really is in their court."

Medical marijuana

[jackcat]

They also won't instruct the jury of their right to jury nullification of the charge.  They deny citizens their full rights daily and nobody does a damn thing about it.  Why?????  Its all money to pay the cost to move it through the courts and the legislators are complicit in the taking of citizen rights.  As a matter of fact, they aid and abet the taking of rights regardless of the truth. 

[Quietus]

They also won't instruct the jury of their right to jury nullification of the charge.  They deny citizens their full rights daily and nobody does a damn thing about it.  Why?????  Its all money to pay the cost to move it through the courts and the legislators are complicit in the taking of citizen rights.  As a matter of fact, they aid and abet the taking of rights regardless of the truth. 

Jury nullification isn't a codified 'right.'  Rather, it arises as a de-facto right due to the very nature of the jury system.  That being...

a) Jurors have a duty to make the best decision they can based upon the facts of the case.
b) Jurors cannot be penalized in any way for the decision they make.

That being said, judges also have the right to override the jury's decision on facts of law.  They also do not have a responsibility to inform juries about jury nullification.  Judges as a result do what they do best, morph the meaning of the supreme court decision into a prohibition of even mentioning the words in a courtroom.

If you're interested, I can give you links to a number of the important court decisions regarding jury nullification.

Deputy Attorney General Russell Curley filed a motion in April asking Reed to bar defense attorney James Wronko from asserting personal use as a defense and from referencing Wilson's medical condition at trial.

There's the bad guy in that mess.  The poor judge has to follow the law and is right that it's up to the legislature to make it legal.  A courtroom is a place where facts are supposed to be decided, not emotional flames are fanned.  However this [insert nasty 4 letter word here] is more interested in winning his case than seeing that justice is served.  He had prosecutorial discretion not the bring the case in the first place.

People should call him up and ask him point blank, why he's trying to put a terminally ill person in prison for just trying to alleviate his pain.

[dOc]

It is pretty sad. I think the magic mushrooms don't help the case either. Maybe if the plants were labeled in such a way with tags stating medical use only then when they are admitted into evidence (don't think they can be modified) the usage would be able to be stated in court. Dunno if that has ever been tried before though. Hopefully he gets off.

[Quietus]

It is pretty sad. I think the magic mushrooms don't help the case either. Maybe if the plants were labeled in such a way with tags stating medical use only then when they are admitted into evidence (don't think they can be modified) the usage would be able to be stated in court. Dunno if that has ever been tried before though. Hopefully he gets off.

That is quite honestly an incredibly brilliant idea!  As I'm of the opinion that most personal medical grows are done indoors, there are numerous ways it could be applicable.  Although as you mentioned, I'm not quite sure how he would properly label the magic mushrooms.

If it were not for those mushrooms, he would be the perfect example case to use when presenting arguments for medical marijuana to legislative officials.

[Derek Rosenzweig]

Very true. The mushrooms do stand as a charge against him in this case, but that shouldn't be an excuse to deny him the right to tell the jury that the cannabis he was growing literally saves his live.

[Quietus]

Very true. The mushrooms do stand as a charge against him in this case, but that shouldn't be an excuse to deny him the right to tell the jury that the cannabis he was growing literally saves his live.

"I didn't do it" - proper and justified defense.
"It was the other guy" - proper and justified defense.
"Yeah I did it, but whatever I'm like dying you know?" - only a mitigating circumstance and not a justified defense.

Mitigating circumstances only come into play during sentencing.  If he's convicted, no judge in his right mind would send him to jail and would likely give him a suspended sentence.

Courts are there to determine facts in evidence and nothing more.  Therefore, the judge was right not to accept the emotionally based defense, as it has no bearing on the issue of whether or not he actually was illegally growing marijuana.  He rightfully passed the ball back to the legislature who writes the law.  It's not the job of a judge to form policy or law.  His hands were tied.

The district attorney's hands were not tied however, for he could have and should have considered mitigating circumstances in whether or not to actually prosecute the case.

That being said, the above poster's idea of plainly tagging every plant and piece of evidence with a big "MEDICAL MARIJUANA: I HAVE POLIO" sticker is a perfect end pass around that conundrum, and should be considered for all medical patients with personal grows.  It would then be quite difficult to hide the mitigating circumstances from a jury, increasing the likelihood that you would get 1 out of the 12 people to exercise jury nullification.

The ironic thing in all this, is that it's bass ackwards from the reason people are usually upset with judges.  Quite often it's a judge throwing out evidence that makes a defendant look guilty.  Say an 18 year old arsonist who killed two people burning down a building for kicks.  A judge would likely not allow evidence such as the fire department coming to his mother's house a dozen times after he lit her drapes on fire. 

[Derek Rosenzweig]

So what you're saying is that if his doctor testified before the court with the diagnoses of multiple sclerosis entered as evidence, and an expert on cannabis and cannabinoids (someone like Dr. Petro) testified before the court, with results of the studies he and others have done indicating that cannabis use halts the progression of multiple sclerosis, that would not be ok? That's not emotionally based - that's fact and research based evidence.

As for Rob's idea about including a sticker that the cannabis is for medical use, that is a great idea and I think everyone who has a legitimate need, should do it.

[Quietus]

So what you're saying is that if his doctor testified before the court with the diagnoses of multiple sclerosis entered as evidence, and an expert on cannabis and cannabinoids (someone like Dr. Petro) testified before the court, with results of the studies he and others have done indicating that cannabis use halts the progression of multiple sclerosis, that would not be ok? That's not emotionally based - that's fact and research based evidence.

As for Rob's idea about including a sticker that the cannabis is for medical use, that is a great idea and I think everyone who has a legitimate need, should do it.

When I say emotional I mean to say that the article suggests the defense planned on making an appeal based on empathy to the jury, for the poor man with a terrible disease.  That, and any medical marijuana research from a hundred doctors has zero bearing on simple the black-white issue of whether or not he broke the current law.  You see, as the judge pointed out, there is no personal use exception in the current law.  It's up to the legislature to fix that.  Therefore, the judge would have been derelict in his duties as a court officer if he hadn't taken a sharp ochkam's razor to any such arguments.

So it's still only a mitigating circumstance that is acceptable to bring up during sentencing.

Reed said he is mindful of the danger in becoming a "judicial legislator."

"When judges appropriate legislative pronouncements and executive prerogatives, they demean those branches of government, and diminish the stature of the courts," Reed wrote. "If medical marijuana use is to be recognized as an exemption to our criminal law, the legislative process must produce that result. This court will not do so."

I'm sure you and I agree that the law is an unjust one.  Yet I'm also sure we also both agree that the guy broke the law.  Don't be so hard on the judge for doing his job, after all he is duty bound to do so.  As you can see from the above statement by him, he takes his job seriously.  He knows we didn't elect him as a legislature and that it's not his job to second guess that body of government.

Like I said before though, the heartless DA you can rake through the coals!

[nightwitch]

Cali has started it already with the zip ties

Zip-ties to identify medical marijuana plants grown in Mendocino County

The voluntary zip-tie program for medical marijuana has been in the works since 2007, when the Sheriff's Office provided free identification ties.

"If law enforcement shows up and these are attached and everything else is in compliance," Sheriff Tom Allman said, "the plants will not be eradicated."

The blue zip ties with a serial number sell for $25 each; they will be available to veterans and Medi-Cal qualified medical patients for half price. Medical marijuana zip-ties will be available at Sheriff's Offices in Ukiah, Willits and Fort Bragg.

[Quietus]

Cali has started it already with the zip ties

Zip-ties to identify medical marijuana plants grown in Mendocino County

The voluntary zip-tie program for medical marijuana has been in the works since 2007, when the Sheriff's Office provided free identification ties.

"If law enforcement shows up and these are attached and everything else is in compliance," Sheriff Tom Allman said, "the plants will not be eradicated."

The blue zip ties with a serial number sell for $25 each; they will be available to veterans and Medi-Cal qualified medical patients for half price. Medical marijuana zip-ties will be available at Sheriff's Offices in Ukiah, Willits and Fort Bragg.

I'm not sure if a zip-tie and a small label would cut it in PA.  As I doubt they would keep the plants around and bring them into the courtroom for the jury to inspect, it would need to be something that would plainly show up in any photograph of the crime scene.  Hell maybe even a big sign on the back wall of your grow room stating, "I have xyz, a terminal illness.  I smoke this to alleviate pain and suffering.  My Doctor is xyz and can verify the pain I'm in.", to supplement individual labels on your hempy buckets or what have you.

It would be quite difficult to the prosecutor to get a conviction, if he has to file to exclude any physical evidence just to keep the signs out of the jury's sight.

[jackcat]

Cali has started it already with the zip ties

Zip-ties to identify medical marijuana plants grown in Mendocino County

The voluntary zip-tie program for medical marijuana has been in the works since 2007, when the Sheriff's Office provided free identification ties.

"If law enforcement shows up and these are attached and everything else is in compliance," Sheriff Tom Allman said, "the plants will not be eradicated."

The blue zip ties with a serial number sell for $25 each; they will be available to veterans and Medi-Cal qualified medical patients for half price. Medical marijuana zip-ties will be available at Sheriff's Offices in Ukiah, Willits and Fort Bragg.

I'm not sure if a zip-tie and a small label would cut it in PA.  As I doubt they would keep the plants around and bring them into the courtroom for the jury to inspect, it would need to be something that would plainly show up in any photograph of the crime scene.  Hell maybe even a big sign on the back wall of your grow room stating, "I have xyz, a terminal illness.  I smoke this to alleviate pain and suffering.  My Doctor is xyz and can verify the pain I'm in.", to supplement individual labels on your hempy buckets or what have you.

It would be quite difficult to the prosecutor to get a conviction, if he has to file to exclude any physical evidence just to keep the signs out of the jury's sight.

As I've mentioned before on the forum, when I was busted I had 10 plants.  The cops only reported 7, and had cut all the leaves off the plants and sent them to the SP lab for analysis.  The state law requires that the whole plant be weighted without the rooball.  No bud because the plants were vegging, leaves were used to force me to plead to a felony of intent to distribute.  No discovery was provided to my attorney, nada, zip.  I wonder how they legally arrived at that conclusion????  The commonwealth's court system is as corrupt as the day is long.  They will violate your rights because they can get away with it. 

[Quietus]

As I've mentioned before on the forum, when I was busted I had 10 plants.  The cops only reported 7, and had cut all the leaves off the plants and sent them to the SP lab for analysis.  The state law requires that the whole plant be weighted without the rooball.  No bud because the plants were vegging, leaves were used to force me to plead to a felony of intent to distribute.  No discovery was provided to my attorney, nada, zip.  I wonder how they legally arrived at that conclusion????  The commonwealth's court system is as corrupt as the day is long.  They will violate your rights because they can get away with it. 

http://www.juryinstruction.com/members/content/national/ncjic_documents/chapter088/88_6_3.htm#88.6.3.5

If you look at the above link intent is actually a difficult thing to prove and 7 plants alone would likely be insufficient to prove to a jury intent to deliver if there were not a scale, massive amounts of baggies, a load of cash in a paper bag or other additional circumstantial evidence.  It sounds like you could have used a better lawyer, tbh.  The first thing a good lawyer does is file a motion to exclude the evidence on a number of grounds, of course that's difficult to do if no discovery is provided.  For him to advise you to plead out to a felony before even seeing the evidence against you is downright incompetent.

Still I would strongly advise medical patients to grow via a scrog as opposed to a sog.  It's a little more work, but generates equal weight with a minimal amount of work and less odor.  There is no perpetual grow or crazy large amount of plants.  As the original post by derek shows, the law is the law and doesn't have an exception for personal use.  So the less plants the better.

[jackcat]

As I've mentioned before on the forum, when I was busted I had 10 plants.  The cops only reported 7, and had cut all the leaves off the plants and sent them to the SP lab for analysis.  The state law requires that the whole plant be weighted without the rooball.  No bud because the plants were vegging, leaves were used to force me to plead to a felony of intent to distribute.  No discovery was provided to my attorney, nada, zip.  I wonder how they legally arrived at that conclusion????  The commonwealth's court system is as corrupt as the day is long.  They will violate your rights because they can get away with it. 

http://www.juryinstruction.com/members/content/national/ncjic_documents/chapter088/88_6_3.htm#88.6.3.5

If you look at the above link intent is actually a difficult thing to prove and 7 plants alone would likely be insufficient to prove to a jury intent to deliver if there were not a scale, massive amounts of baggies, a load of cash in a paper bag or other additional circumstantial evidence.  It sounds like you could have used a better lawyer, tbh.  The first thing a good lawyer does is file a motion to exclude the evidence on a number of grounds, of course that's difficult to do if no discovery is provided.  For him to advise you to plead out to a felony before even seeing the evidence against you is downright incompetent.

Still I would strongly advise medical patients to grow via a scrog as opposed to a sog.  It's a little more work, but generates equal weight with a minimal amount of work and less odor.  There is no perpetual grow or crazy large amount of plants.  As the original post by derek shows, the law is the law and doesn't have an exception for personal use.  So the less plants the better.

Well, I didn't know it was going to be a felony until I arrived in court.  And, you don't know crooked Chester County is, and I wasn't about to spend a year in their shithole of a county jail.  My lawyer earned $8K fighting a DUI by the same police force.  I lost in the jury because someone convinced one juror to vote guily.  It was hung.  And to top it all off, they never put the DUI on my record.  I exposed a speed trap West Grove was running and should have won to throw out the evidence.  I had the trap drawn, measurement representing elments, and the judge wouldn't do it because I forgot to put a scale on it, althought it was extremely accurate.  It was after this trial that they did their thing against me with no discovery, etc in the pot case.  They didn't even provide discovery for the DUI case, and lost (sic) a preliminary hearing tape recording of the cop's testimony where he actually supported my side on the DUI.  The justice system in PA is, if you go to court, you may as well consider you're being found guilty.  They deny your rights, and I ran out of money to fight them. 

[Quietus]

Well, I didn't know it was going to be a felony until I arrived in court.  And, you don't know crooked Chester County is, and I wasn't about to spend a year in their shithole of a county jail.  My lawyer earned $8K fighting a DUI by the same police force.  I lost in the jury because someone convinced one juror to vote guily.  It was hung.  And to top it all off, they never put the DUI on my record. 

A hung jury means a mistrial, which means no guilty verdict and therefore no conviction on your record.  It only takes 1 out of 12.

I exposed a speed trap West Grove was running and should have won to throw out the evidence.  I had the trap drawn, measurement representing elments, and the judge wouldn't do it because I forgot to put a scale on it, althought it was extremely accurate.  It was after this trial that they did their thing against me with no discovery, etc in the pot case.  They didn't even provide discovery for the DUI case, and lost (sic) a preliminary hearing tape recording of the cop's testimony where he actually supported my side on the DUI.  The justice system in PA is, if you go to court, you may as well consider you're being found guilty.  They deny your rights, and I ran out of money to fight them. 

Lost exonerating evidence?  It sounds like you had a million grounds for appeal, but with a lawyer as crappy as yours and no money left for the process you were stuck.  Understand though that them handing over evidence to you during discovery is a constitutional right.  It's not something they can get away with.  The other side of the coin is that it normally occurs after the preliminary hearing and before the trial.  If I read it right, it sounds like you pled before this would have occurred in the pot case.  If I'm wrong about that part, then you have a strong case to have the conviction thrown out.

Trials cost a lot of money, so they are always threatening people with lengthy prison terms trying to get them to plead down and avoid a trial.  It still boggles my mind that your crappy lawyer would have advised you plead to a felony charge.  If you ever get some $$$ together and want it off your record, you could always get another lawyer to claim incompetent representation and look into the constitutional rights issue.  Maybe even get your money back from the bloodsucker in a lawsuit afterwards.