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Boston Update: Motion to Reconsider and Additional Affidavits Filed

  • by Keith Stroup, NORML Legal Counsel April 9, 2008

    On Monday, March 31, in the case of Commonwealth v. Cusick and Stroup, the defense team filed a Motion to Reconsider, along with three new expert witness affidavits.

    The defendants had previously filed a Motion to Dismiss, along with an extensive supportive affidavit from Lester Grinspoon, M.D., requesting a full evidentiary hearing where we would proffer testimony that would support our position that there is no longer a rational basis for the Commonwealth of Massachusetts to criminalize the personal use of marijuana by adults. It has been 29 years since the Massachusetts courts last made a comprehensive constitutional review of their marijuana laws, and a lot of new scientific evidence is now know about marijuana, and it is important for the courts to take another look at this matter. More than 7,300 marijuana smokers were arrested in the last year in Massachusetts, causing significant harm to the lives and careers of those individuals. More after the jump…

    On March 20, Boston Municipal Court Judge Leonard Redd refused to hear testimony on the Motion to Dismiss, and denied the motion without even reading the Grinspoon affidavit, saying the court simply did not have time for these constitutional challenges.

    The Motion to Reconsider includes affidavits from University of Virginia Law School Professor Richard Bonnie, formerly the Deputy Director of the National Commission on Marijuana and Drug Abuse (the Shafer Commission) regarding the conclusion of the commission that criminalizing minor marijuana offenses causes more harm to society than the use of the drug itself; from Harvard Professor Jeffrey Miron, regarding his economic study measuring the cost of marijuana prohibition to the state of Massachusetts; and a second affidavit from Lester Grinspoon, M.D., this one focusing in more detail about the many positive medical uses of marijuana.

    The next scheduled court date in this matter is currently Monday, May 12, when the matter has tentatively been set for trial. The defendants, both of whom will take the stand and acknowledge they were sharing a joint at the Boston Freedom Rally, will argue for a jury instruction reminding the jurors that if they believe convicting the defendants of these charges will create an injustice, they have the legal authority to acquit the defendants. This power, know as jury nullification, is something defense attorneys formerly could argue to the jury, but in the late 1800s, the courts began to rule that while a jury retains this power, they have to find that out on their own; defense attorney are no longer permitted to mention the topic, under threat of a mistrial and a contempt finding against the attorney.

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