Posted on
March 27, 2008 in
From NewsLI.com (little known geographical fact: Texas is so big that Amarillo is actually closer to Long Island, New York than it is to Houston) comes this story about a successful marijuana defense by Jeff Blackburn:
A Texas patient who uses medical marijuana to treat the symptoms of HIV won acquittal on marijuana possession charges March 25 based on a “necessity defense.” Though such a defense – which requires the defendant to establish that an otherwise illegal act was necessary to avoid imminent harm more serious than the harm prevented by the law he or she broke – has rarely been successful in Texas, the jury took just 11 minutes to acquit Tim Stevens, 53. The trial was hotly contested.
Not jury nullification, exactly — it sounds like Jeff (el chingón, previously famous for clearing the names of Tulia defendants framed by Tom Coleman) gave them a legal reason to acquit, and they seized it. Here’s Texas’s law on necessity:
Texas Penal Code Section 9.22:
Conduct is justified if:
- the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
- the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
- a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
So to six jurors in Amarillo, at least, the use of medical marijuana in some cases is clearly reasonable; the harm sought to be prevented by the proscription of marijuana is so clearly outweighed by the desirability of the accused’s avoiding “nausea and cyclical vomiting syndrome, a condition so severe that he has required hospitalization and blood transfusions in the past” that the decision took only 11 minutes — barely time to read the jury charge and take a vote.
Texas is big, but it’s not *that* big. Amarillo to Houston is about 600 miles, while Amarillo to Long Island is about 1700 miles.
See? Even the miles are longer in Texas.
A Texas rancher was visiting a Maine farmer and bragged “Why, mah ranch in Texas is so big, it takes a whole day just to drive my truck from one end to the other.” The Maine farmer replied “Ayep, I used to have a truck like that.”
Now El Paso is closer to Los Angeles than it is to Houston, but that doesn’t qualify as a little-known fact.
And hang in there, Mark. Sooner or later someone will make a comment on point.
I have people call me from out-of-state about cases in El Paso sometimes; I have to explain the distances involved. People in the little tiny states have trouble conceiving of an 800-mile drive in a straight line across a single state.
Know what you get if you cut Alaska in half? Two states bigger than Texas.
Currently in my 16th year in Alaska after 12 years in Texas. Both great places, but for different reasons. The tex-mex food up here sucks.
I drove my daughter down to Colorado for college last fall. 4200 miles from Anchorage to Northern Colorado.
Perhaps Amarillo is philosophcally miles closer to Long Island.
Los Angeles and Houston are roughly equidistant from El Paso.
While you did get the mileage wrong to Long Island, my family comes from Dalhart originally on both sides, about 80 miles north of Amarillo. It is closer to the capitals of seven other states, if I recall correctly, than it is to Austin.
Sounds like you all are smoking dope and looking through the almanac.
What is it about marijuana that people refuse to confront, in this age of Viagra commercials? Even here…where you would expect to find some kind of professional discussion.
Melaine, I don’t know. I think the ridiculousness of criminalizing marijuana is something most readers here hold self-evident. So what is it about marijuana that we refuse to confront here?
Tell us, and we’ll do our best not to let you down.
The real question, in my mind, is whether this counts as a jury nullification verdict. And on one theory, I think it does.
Jury nullification, by that theory, does not always amount to the jury giving the judge the finger. It can also amount to the jury giving more weight to certain legal arguments than they perhaps merit, because the equities of the case lie in that direction.
In other words, the defense may argue necessity, even though the elements of the defense are not solidly presented by the facts of the case. Yet by setting up this shadow defense, the jury will have a “peg to hang their hats on” should they wish to vote “not guilty.”
Moreover, the jurors may not even be consciously aware that they have nullified the law in this sort of scenario. It is just that their desire not to convict the poor bastard leads them to sidestep the missing element, add an extra element to the State’s case, or otherwise color their fact-finding.
The scary part is that this “subliminal” jury nullification works both ways — something that nobody in their right mind would advocate. After all, if trial by jury exists to prevent oppression by government (Duncan v. Louisiana), the Government never needs to resort to it. It is free to simply dismiss the case to quit being oppressive.
This is why Kelly Siegler wants to scare jurors: facts be damned, if the jury hates the defendant enough, fears him enough, they will make excuses for weaknesses in the State’s case, or find weak evidence overwhelming and unquestionable. It is pretty reprehensible, but effective.
You can post to Tim’s myspace page.
https://www.myspace.com/amarillotim
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Medical Necessity. I have Basal Cell Carcinoma,(skin cancer). Basal Cell can prove fatal if untreated,(so I have been told). Not as deadly as Malignant Melanoma, it is however rather annoying,(bleeds rather easily). The surgical procedure required to remove it is, in my opinion, a real pain in the,(in my case), neck, head, and face. I have had six of these procedures done on my neck, head, and face. Never again. I decided, after the last procedure, to try an alternative treatment. I manufactured some cannabis oil, applied it to two of the remaining lesions, covered them with a bandaid, left them on for 12hrs, and repeated the application for six days. The lesions are GONE, CURED. I consider what I have done a “Medical Necessity” to avoid having a doctor stick a needle in my head, and using a scalple to cut me up. The federal government has recently patented compounds in the cannnabis plant for medical use. I am somewhat confused. I thought they maintained that cannabis had NO MEDICAL USE WHAT SO EVER. Well, maybe there are some actual people with a half a brain in politics after all.
It’s going to be a long time before Texas makes its way into the medical marijuana market. I hope to see it happen and it will be a big win for those with serious medical issues that need medical cannabis to function normally and go on with their day.