MARIJUANA DEFENSE LAWYERS

 (These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense in the Plowshares case.)

PRESENTING THE MEDICAL MARIJUANA DEFENSE

By Jon Katz

NOTE: Partner Jon Katz wrote the following published article for the October 2003 newsletter of the Maryland Criminal Defense Attorneys Association. shortly after being interviewed for a first-page medical marijuana article in the Washington Post's Metro section (see the article here). 

    By now, Maryland's new medical marijuana law is well known, but is still probably leaving many judges, defense lawyers, and prosecutors scratching their heads to make sense of the law. Despite any novelty of or imprecision in this law, it should benefit many defendants, rather than remaining a mere curiosity.

THE MEDICAL MARIJUANA LAW PROVIDES BOTH A TRIAL DEFENSE AND A SENTENCING DEFENSE

    The medical marijuana law provides both a trial defense (to counter a possession with intent to distribute charge, with the defense of simple possession for use for medical necessity) and a sentencing defense (to cap sentencing at a $100 fine).

    The new law is found at Chapter 442, Acts 2003 (effective Oct. 1, 2003), and is codified into the existing marijuana and paraphernalia statutes, at Md. Code, Crim. Law art. § 5-601(c)(3) (marijuana possession) and §5-619(c)(4)(ii) (drug paraphernalia). The law was passed as identical Senate and House bills numbered SB-0502 and HB-0702.

    The medical marijuana provision of the marijuana possession statute states:

(i) In a prosecution for the use or possession of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.

(ii) Notwithstanding paragraph (2) of this subsection, if the court finds that the person used or possessed marijuana because of medical necessity, on conviction of a violation of this section, the maximum penalty that the court may impose on the person is a fine not exceeding $100.

Md. Code, Crim. Law art. § 5-601(c)(3).

    The medical marijuana provision for the possession of drug paraphernalia closely tracks the above-quoted language from § 5-601(c)(3), as follows:

Notwithstanding paragraph (2) of this subsection, if the court finds that the person used or possessed drug paraphernalia related to marijuana because of medical necessity, on conviction of a violation of this subsection, the maximum penalty that the court may impose on the person is a fine not exceeding $100.

Md. Code, Crim. Law art. § 5-601(c)(3) (marijuana possession) and §5-619(c)(4)(ii).

    Both the Senate and House bills list the law's purpose as follows:

FOR the purpose of allowing certain individuals in certain marijuana prosecutions to introduce, and requiring the court to consider as a mitigating factor, certain evidence related to medical necessity under certain circumstances; establishing certain penalties under certain circumstances; making the provisions of this Act severable; and generally relating evidence of certain medical necessity in marijuana-related prosecutions.

MARIJUANA IS MEDICINE

    Before addressing the legal implications of this new law, it is important to understand the medicinal relevance of marijuana.

    The Maryland bench now has plenty of judges who grew up in the generation where marijuana smoking was almost as common as beer-drinking; the same goes for jurors. The judges and jurors who have personal or indirect experiences with marijuana will likely be easier to educate for marijuana necessity defenses, and often will agree that marijuana is hardly more harmful than alcohol, if at all. For defense lawyers without direct or indirect marijuana experience, this law's passage makes it all the more important to understand the medicinal and physiological implications of marijuana.

    Marijuana is medicine, with THC as its drug ingredient. Marijuana can relieve physical pain (including back pain and nausea from chemotherapy), psychological pain, and, it has been documented, asthma (by expanding the lungs for easier breathing) and glaucoma (by reducing eye pressure) and debilitating muscular diseases. Marijuana also helps stimulate appetite, which is often critical for chemotherapy patients. Willingly or not, the federal government many years ago designated a small number of people who to this day receive federally-grown marijuana to alleviate their diseases.

    Once the federal government banned marijuana early in the twentieth century (and even banned domestic farming of the marijuana hemp crop to harvest the plant for such non-drug uses as rope, canvas, and paper), the federal government has politicized marijuana to the point that to this day marijuana is not scheduled under federal law as a drug that may be prescribed by physicians. Marijuana remains federally banned for prescription purposes, while doctors remain free to administer cocaine, heroin, and morphine for medicinal use.

    Anti-marijuana people tout the availability of the prescription medicine Marinol, which contains the same THC drug ingredient found in marijuana. However, medicinal marijuana advocates insist that Marinol is seriously inferior to marijuana, pointing as an example to chemotherapy patients whose nausea can prevent them even from keeping down a Marinol tablet long enough for it to absorb into the body, and pointing out that marijuana provides quicker relief by going into the bloodstream more quickly than a Marinol tablet.

    Defense lawyers have the manageable challenge of transcending any puzzlement that the medical marijuana law might initially engender, and the jokes that the law might at first spur (including images of Cheech and Chong and the Three Freak Brothers).

    This law is a serious one that was not passed by a bunch of longhaired tie-dyed potheads, but by a majority of legislators in suits and a Republican governor who fended off Bush administration urgings to veto the bill. This law recognizes the disingenuousness of politicizing the medical use of marijuana at the expense of sick people who benefit tremendously from using it. Moreover, this law is a natural step beyond the long recognition in Maryland law that marijuana simply is not as dangerous to society and marijuana's users as other street drugs. For that reason, marijuana possession has long carried a one-year maximum jail penalty, where other illegal drugs carry a four-year penalty. Felonious marijuana possession (absent huge quantities) carries a maximum five year penalty without any statutory minimums, whereas other drugs carry much higher initial penalties, and mandatory minimum prison sentences for subsequent offenses.

    Mounting the best medical marijuana defense will ordinarily be costly, calling for the testimony of the defendant's treating physician (or an evaluating physician if the defendant had no personal physician), and sometimes the testimony of a medical marijuana expert if the treating physician lacks sufficient knowledge about marijuana's medicinal relevance to the defendant.

    The director of a Maryland physicians group recently advised against physician testimony to support a medical marijuana defense, based on concerns for the federal law's prohibition against physicians recommending marijuana. However, when a physician testifies that marijuana use was medically necessary, that by no means shows that the physician recommended the marijuana. Moreover, the United States Court of Appeals for the Ninth Circuit has held that physicians cannot be penalized for recommending marijuana use in California, whose state law makes medicinal marijuana use legal. Conant v. Walters, 309 F.3d 629 (9th Circ. 2002), cert. denied, ___ U.S. ___ (Oct. 14, 2003).The Supreme Court recently denied certiorari review of this Ninth Circuit ruling. 

    Because of the significant expense of producing the medical reports and testimony of medical witnesses for a marijuana defense (particularly for the Public Defender's Office), hopefully judges will routinely grant postponements for sentencing hearings so that defendants do not need to harbor the expense of preparing for a medical marijuana sentencing before knowing if there will be a conviction. Of course, this postponement option does not apply to defendants charged with possession with intent to distribute who want to show the factfinders that the marijuana was for simple possession due to medical necessity.

    The initial meeting with our marijuana defense client is the time to start exploring the possibility of a medical marijuana defense. Some medicinal marijuana users readily acknowledge they are using marijuana for medicine. However, many more medicinal marijuana users either do not realize they are self-medicating, or are in denial that they are doing so. The same goes for the many alcohol users who think their use is recreational, but who actually are alleviating their psychological pain with liquor. Sometimes a medical and psychological evaluation will be advisable to get further to the root reason for the marijuana use.

    Evaluating our clients' reasons for using marijuana is not an effort to "fabricate" a medical marijuana defense, but is now a necessary exploration for just about every marijuana defendant.

    Most marijuana defendants will not have the funds to hire a physician to testify at sentencing. For them, their alternatives are to introduce the physician's medical report at sentencing, possibly accompanied by a learned treatise that the report is shown to rely upon. For defendants who cannot even afford a physician's written report, they have available a wide array of persuasive and scholarly reports on the medical benefits of marijuana. Starting points can include the Lindesmith Center (go here first) (www.dpf.org and www.dpf.org/marijuana/medical/index.cfm), the Marijuana Policy Project (www.mpp.org and www.mpp.org/medicine.html), and the National Organization for the Reform of Marijuana Laws (www.norml.org and www.norml.org/index.cfm?Group_ID=3376). Lawyers can get a primer on the medicinal benefits of marijuana by reading Marihuana: The Forbidden Medicine, by Harvard Medical School Professor Lester Grinspoon, M.D., and James Bakalar, J.D. (excerpts available at www.rxmarihuana.com). Support for the benefits of marijuana over Marinol is available at www.books.nap.edu/html/marimed/ch4.html (showing, e.g., that some patients' bodies reject Marinol).

Maryland's medical marijuana law was a compromise between those who wanted to legalize medical marijuana use outright, and those opposed to going that far. This law provides a defense not only against jail for marijuana possession, but also a defense against prosecutions for possession of marijuana with intent to distribute. The law helps break down the politicization of marijuana that has prevented it from being federally approved for medicinal prescription purposes.

ADDENDUM

Marks & Katz wins Maryland medical marijuana sentence:

The police obtain a warrant to search our client's home after finding some marijuana in his trash bag. They find over thirty marijuana plants in the basement. Marks & Katz, with the help of top-notch marijuana cultivation experts, convinces the prosecutor to offer a guilty plea to simple marijuana possession. Then, at sentencing, we convince the judge, with the help of a physician, that our client used the marijuana because of medical necessity for severe sleep apnea. As a result, his penalty is limited to $100 plus court costs, and no jail nor probation. Read the full details at our Underdog Blog. 

    Marijuana should be as lawful as alcohol, and we would have a better society if all alcohol drinkers smoked marijuana instead. Until marijuana is fully legalized, Marks & Katz, LLC, will continue to spiritedly represent all people arrested for alleged marijuana crimes. To the foregoing end, our criminal and drug defense law partner Jon Katz is a member of the National Organization for the Reform of Marijuana Laws (NORML) Legal Committee. He also provides drug law analyses and views in Overgrow.com's Security & Legal forum. 

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