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.

Attorney Matt Feinberg; law student Brendan Hickey; Co-Defendant Rick Cusick; Lester Grinspoon, M.D.; Co-Defendant Keith Stroup; Professor Charles Nesson; and Keith Saunders, Ph.D.

We had actually filed a motion to dismiss the case, based on our allegation that the marijuana laws are unconstitutional, and we had requested a full evidentiary hearing where we could call a number of witnesses to make our case. We had expected that the 30-page affidavit from Lester Grinspoon, M.D., would be sufficient to convince a judge to schedule an evidentiary hearing in 30 or 45 days. We were certainly not anticipating holding a hearing that very day, nor would we expect the government would be ready to hold such a hearing without some time to prepare their case.

But these court challenges seldom follow the precise course we expect, and this was proving no different. Our legal team quickly caucused in an anti-room made available for those purposes, and discussed the possible avenues available. Whether we intended or not, we were going to be called for our evidentiary hearing within an hour or so, and we had to make the best of it.

Fortunately Dr. Grinspoon was with us in court, and would be available to testify on the stand in more detail about the findings in his affidavit.
Then we turned to Keith Saunders, PhD, the former head of MassCann/NORML, our MA state affiliate, a professor at Northeastern University who holds his doctorate in marijuana studies. He was with us for moral support, certainly not expecting to testify, but when the attorneys realized we were headed into an immediate hearing, it seemed only natural to ask Saunders is he could testify about the use of marijuana and the attitudes towards the use of marijuana in the Bay state.

So we now had two witnesses lined up to testify in support of our motion to dismiss on constitutional grounds. That was certainly not what we would have anticipated were we provided more notice of the hearing, but we felt we could at least establish a solid record, that we could use on appeal, if denied by the trial court.

But again, we were denied by the second judge. An African-American judge with a gray ponytail, in his late 50s, Judge Redd called our case, and Matt Feinberg began by explaining that we were here to put on evidence that would support our claim that the marijuana laws were unconstitutional, and that it was important for the court to reexamine this issue, since it had last done that 29 years ago, and much had changed. He briefly described the two witnesses we would like to put on the stand at the hearing, and what they would be expected to say. Then the judge turned to the prosecutor.

The young prosecutor then took his turn, stood and began a short talk that he had clearly been rehearsing in his mind. “The defendants are in the wrong venue,” he said. “If they believe the marijuana laws should be changed, they should be talking to the legislature, not here raising this ridiculous claim and wasting the courts valuable time.

Though the judge did take a moment to suggest to the prosecutor that he might wish to temper his language a bit, he then turned on his heels and basically said his court was simply too busy to hear these types of claims, and that he would not be hearing any testimony on this matter and he was ready to rule against us.

Professor Nesson then asked to be heard, and made an appeal saying that these defendants surely must have the opportunity to make a record for purposes of appeal, and stressed that we did not mean to be disrespectful of the courts time or resources, but that these are important issues of public policy that the courts must periodically review.

Steve Epstein, who has appeared before this judge in prior cases, specifically asked the judge if he would consider withholding his ruling on our motion until he had at least had the opportunity to read the Grinspoon affidavit. It seemed like an invitation that any reasonable judge, wanting to appear credible, could not ignore, but he did. Judge Redd simply ruled against our motion to dismiss and refused to permit us to put on any testimony from the stand, totally denying us a hearing without ever having read a line of our pleadings.

At this point the defense team reassembled and agreed that we would file a motion to reconsider, which we must file within ten days, as that motion would provide us an avenue to add additional affidavits to the record. In particular, the attorneys felt we should get a second affidavit from Dr. Grinspoon, focusing far more in detail about the medical use of marijuana, a field that was almost unknown 29 years ago; and a new affidavit from someone who could attest to the harm that results from criminalizing so many otherwise law abiding citizens by making marijuana use illegal. And, we could get Dr. Saunders to present his testimony in the form of an affidavit to be filed with the motion as well.

While technically requesting the court to reconsider their decision to deny our motion, the real purpose is to shore up our record for an anticipated appeal down the road, and the motion to reconsider provides that avenue.

I agreed to contact University of Virginia Law School professor Richard Bonnie to provide the missing affidavit. Bonnie served as legal director for the National Commission n Marijuana and Drug Abuse (The Shaffer Commission), has published two books on the topic, and believes firmly that the commission was right when they found that the criminalization of marijuana was far more harmful to society than the use of marijuana itself, and he continues to believe it should be decriminalized.

We then decided that we would at least go to the site of our planned press conference – a opportunity that had obviously been lost, as our hearing schedule was delayed for hours, waiting for a resolution — but we assembled nonetheless, to create our own record that we can post on the NORML and High Times web sites, and on You Tube. (Video of Nesson, Stroup, Cusick, Grinspoon, and Epstein is available online.)

And then it was over. Almost idealistically, we had come to town expecting to have a hearing scheduled a month or so in the future, and in fact we had been told by the courts to get lost. But somehow I still felt energized by the challenge, and left this experience feeling quite good about the defense team. They are bright and committed group with whom Rick and I are happy to cast our lot. In fact, I’m rather proud to stand with this group of freedom fighters.