By: Timothy P. Flynn

This case, Americans for Safe Access vs USDEA, has been percolating through the federal court system for more than a decade.  Now that the Court of Appeals for the DC Circuit declined to reclassify marijuana as a Schedule 1 drug [i.e. high potential for abuse with no verified medical benefits], the pot lobby has filed a petition for a writ of certiorari with the SCOTUS.

As readers of the Law Blogger are aware, one of the chief tensions between states that have legalized marijuana or have approved initiatives for medical marijuana, has been the persistent and long-standing classification of marijuana as a Schedule 1 drug in the federal Controlled Substances Act.

The DEA's response to the pot lobby's petition for cert is due mid-August.  This case will hopefully be taken-up by SCOTUS and decided on the merits.  That way, those in the pot growing industry will know where they stand.  Other the other hand, many legal scholars would argue that it is not for the justices to legislate but rather, that is the job of the Legislature.

Even if marijuana remains on Schedule 1 at the conclusion of this epic litigation, it nevertheless appears that plenty of entrepreneurs will continue risking their time, money and even their freedom to grow and distribute pot.

Perhaps the basic economic laws of supply and demand are among the strongest and most enduring of all.  Apparently, there is an unlimited demand for marijuana out there on Main Street and a healthy supply of folks willing to satisfy that demand.

www.waterfordlegal.com

By: Timothy P. Flynn

Does the Michigan Medical Marijuana Act presume that a certified patient can only consume marijuana by smoking herb, or can pot brownies do the trick?  That was the question posed by a case from the Oakland County Circuit Court that went to the Michigan Court of Appeals.

Now, on last week's remand back to the Oakland County trial court, an evidentiary hearing will be conducted in the People v Carruthers case to determine whether the accused was using a "reasonable" amount of marijuana by baking the pot brownies.

Earl Carruthers was charged with illegally manufacturing marijuana when pot brownies and several ounces of "loose" pot were found in his vehicle; he possessed a medical marijuana card and a caregiver certificate at the time of his arrest.  Oakland County Circuit Judge Michael Warren precluded him from submitting evidence to the jury about his status as a card-carrying medical marijuana patient and care provider.  Judge Warren also ruled that the entire weight of the pot brownie mixture [some 55 ounces] could be taken into account relative to the manufacturing charge.

Even though the circuit court allowed Carruthers to appeal the evidentiary rulings prior to his trial, the Defendant elected to plunge into the trial without the ability to present an affirmative defense as to his medical marijuana use; he was jury-convicted. In appealing this conviction, the broad immunity provision and the narrower affirmative defense section of the MMA were once again interpreted by the Michigan Court of Appeals; this time in the "usable marijuana" context.

 Complicating this issue is the fact that the MMA itself defines "usable marijuana" two different ways: first, the Act references the broad definition set forth in the public health code, then proceeds to promulgate its own, much narrower definition of marijuana:

"Usable marihuana" means the dried leaves and flowers of the marihuana plant and any mixture or preparation thereof, but does not include the seeds, stalks, or roots of the plant.

Whether Carruthers could avail himself of the MMA's immunity provisions [case dismissed; no jury trial] hinged on the weight of the edible.  Judge Warren ruled the whole pot brownie had to be weighed; Defendant asserted that only the net weight of the THC, the active ingredient in marijuana, could be taken into account.  Although the prosecutor's expert stated that THC was present in the brownies, it was impossible to conclude how much.

This ruling could make it difficult for a marijuana patient or care provider to produce pot brownies in conformity with the weight limitations of the MMA.  Critics within the defense bar expressed concerns that the Court of Appeals' decision limits ingestion via the lungs, i.e. with smoke.  Patients that have lung conditions and cannot smoke are thus precluded from legally ingesting baked goods laced with marijuana.

The case will be heading to the Michigan Supreme Court for certain.  Our High Court will once again be called upon to "fill-in-the-blanks" of the MMA.

We here at the Law Blogger must say that the ingestion of pot brownies by a legitimate card-carrying patient sure seems to be consistent with the spirit, if not the letter, of the Medical Marijuana Act.  Stay tuned, as we will be following this one...

www.clarkstonlegal.com

George Zimmerman awaits his fate yesterday.

As criminal defense lawyers, we here at the Law Blogger can certainly understand the exhilaration of a big defense win.  As parents, we also understand the slap in the face that this is to the parents and family of Trayvon Martin.

The all-female Seminole County jury elected to work into the weekend, deliberating on Friday night and into Saturday, before finding the accused neighborhood watchman not guilty of second degree murder and manslaughter.

You know the case; the self-appointed night watchman has a confrontation with Trayvon Martin, a teenager whose father lived in the community Zimmerman was patrolling.  The case featured Florida's so-called "stand-your-ground" self-defense statute and acquired a civil rights dimension due to the alleged racial profiling component of Zimmerman's actions.

Even President Obama publicly commented on the proceedings, remarking that if he had a son, he would look like Trayvon Martin.  Here in the 313, the Coalition Against Police Brutality has planned a public protest of the verdict.  Demonstrations erupted, briefly, in streets of Los Angeles, CA, when news of the verdict broke.

www.clarkstonlegal.com

By:  Timothy P. Flynn

Earlier this week, medical marijuana advocates here in Michigan urged supporters to obtain and spend $2 dollar bills in support of the medical marijuana industry.  The idea behind the campaign is to demonstrate the strength of the marijuana economy.

Estimates place annual revenue from marijuana in Michigan, legal and illegal, at approximately one billion dollars.  The two dollar bill campaign is designed to raise awareness of the potential tax revenues and economic growth possibilities of the industry.

Not surprisingly, since the passage of the Michigan Medical Marijuana Act, Michigan now has over 130,000 registered marijuana "patients" with another 30,000 care-providers.  That's a lot of folks using and producing marijuana.

As we have reported here at The Law Blogger, recent appellate decisions have fostered a "grow-your-own" or barter system for the necessary evil of marijuana cultivation.  Dispensary schemes or for-profit business models have been ruled illegal.

A recent study from Harvard University estimated that 13% of all adult Michiganders used marijuana at least once over the past year.  That's a lot of joint consumption.

Should the State of Michigan regulate and tax this robust industry?  Should the business model shift from the hippy farmer to the for-profit business model?

Legislators and judges alike could not give two cents in support of this still-illicit industry, never mind a two dollar bill.  As things now stand, the law says: no profits from pot.

We would love to hear from our readers on this issue that is here to stay.  Please comment.

www.clarkstonlegal.com

By: Timothy P. Flynn

This post is straight from Texas, our most prolific death penalty state.  Texas has executed over 800 death row inmates since the SCOTUS ruled in 1976 that the death penalty was not cruel and unusual punishment after all.

A typical death house drill includes the condemned selecting and consuming one last meal and, just prior to execution, is provided an opportunity to make a statement.  In Texas, these statements have been posted to this Texas Department of Corrections link, along with a brief summary of the inmate's capital conviction.

Fascinating stuff, to be sure.  Some of the most hardened inmates decline comment.  Others make one last assertion of innocence.  Invocations of Allah and Jesus abound; saying goodbye to family and loved ones, promising to wait for them on the other side; exhortations to the system that crushed them and to the brothers they left behind on the row.

Charles Thomas O'Reilly, the recently retired warden of the Huntsville Unit, the prison that houses the death house, presided over 140 executions; the most in Texas history.

The death penalty is and has always been a divisive issue in America.  32 states have death penalty sentencing statutes to the 18 that have banned such punishment, including, most recently, New York, and New Jersey in 2007, and Illinois in 2009.

In the 1972 case of Furman v Georgia, the SCOTUS suspended capital punishment on the basis of the 8th Amendment bar against cruel and unusual punishment.  Then four years later, SCOTUS reinstated capital punishment for murder convictions, provided a trial was bifurcated into two segments: a guilt phase, and a punishment phase where the trier of fact gives separate and specific consideration to the punishment and the convicted defendant has the opportunity to present evidence on mitigation.

Last week, Kimberly McCarthy was executed in Texas.  She was the 500th person in Texas to be executed since it resumed executions in 1982, and the 13th woman to be executed in the United States since the 1976 resumption of the death penalty.

Back in 1998, Karla Faye Tucker was another infamous female death row inmate at the Huntsville Unit.  She was the subject of the book Crossed Over.

Truly, do not mess with Texas.  Texans are willing to walk the fine line between the fair and the harsh.

www.waterfordlegal.com
info@waterfordlegal.com

By: Timothy P. Flynn

A secret court; something very offensive to our Democracy.  Even as lawyers, we here at the Law Blogger had never heard of such a stealth tribunal until Edward Snowden blew the whistle on one of its rulings [i.e. the FISA Court's "classified" order to turn over all of Verizon's phone tracing data to the NSA].

Actually, the FISA Court has been around since the 1978 passage of the Foreign Intelligence Surveillance Act.  Following the September 11th terrorist attacks on our country back in 2001, FISA has been repeatedly amended, primarily through the Patriot Act.

Not surprisingly, since 9/11, FISA has expanded steadily along with the powers of the FISA Court.  The Bush Administration based its warrantless wiretapping practice on FISA; the Obama Administration, to the surprise of many of its supporters, has not only continued the program, but expanded the scope of electronic surveillance to apparently everyone in America.

The Edward Snowden case has shined a light on the 11-member FISA Court.  What that light has shown is that the secret court has evolved from providing quick case-by-case rulings on electronic surveillance scenarios, to building a body of "classified" constitutional decisions that are now hefting the weight of judicial precedent; all without a scintilla of public scrutiny.

We here at the Law Blogger would like to know:  who is on this secret court?  What decisions are they making that may affect our right to privacy?  And do we even still have a right to privacy while connected to the internet or connected to a cell phone?

The FISA Court's recent classified decisions have become so constitutionally significant that a recent NYT article compares the secret court to a "parallel Supreme Court".

One example of the shrouded jurisprudence emanating from the FISA Court is the application of the "special needs" exception to the warrant requirement of the 4th Amendment in terrorism cases.  Normally, law enforcement cannot conduct a search or seizure of a person without a warrant based on probable cause.

In 1989, SCOTUS created the "special needs" exception to the 4th Amendment's warrant requirement in the context of public transportation.  SCOTUS ruled that public railway workers could be drug-tested by the government without a warrant on the basis that the minimal privacy intrusion of the worker was superseded by the need for public transportation safety.

Apply this logic to the modern terrorism cases, and any matter that evokes our "national security" opens the door for the FISA Court to invoke the "special needs" exception.  This fast-expanding exception is now poised to swallow the 4th Amendment's warrant requirement whole.

Although we do not get to read the secret court's decisions, from which there is a very limited and rarely used appeal process, we are told -via the NYT- that a sturdy pillar of jurisprudence and precedent has arisen from the FISA Court: the collection of Metadata does not offend the 4th Amendment.

Well, ok, if the Star Chamber says so.  But we here at the Law Blogger thought that ours was an adversarial justice system characterized by thesis, antithesis, and synthesis.

Post Script: October 15, 2013 - The FISA has given the green light in several of its recent cases for the NSA to continue to collect cell phone use data on U.S. Citizens.  We wonder if our emails are also subject to NSA scrutiny...

www.clarkstonlegal.com