[THS] !!! Boston Freedom Rally: Pot on Trial

[Peter Webster]

http://media.www.umassmedia.com/media/storage/paper445/news/2008/0
4/21/Arts/Pot-On.Trial-3338761.shtml

Pot on Trial
Ben Whelan
Issue date: 4/21/08 Section: Arts


Last September at the 18th annual Boston Freedom Rally, an annual rally to
support the reform of marijuana laws held on the Boston Common, sixty-
plus people were arrested for simple possession of marijuana. This in itself
is not surprising, and because everyone detained was released with little
fuss, the incident was only a passing blip on the radar of local news.
Everyone, that is, except two men who have turned their arrests into a
platform to launch a legal challenge to the massachusetts statute
criminalizing possession of marijuana in what could go down as a turning
point in the history of American jurisprudence.

Rick Cusick, who is the Associate Publisher of High Times magazine, and
Keith Stroup, president and founder of the National Organization for Reform
of Marijuana Laws (NORML), will shortly go to trial for possession, the
evidence against being the butt of a smoked marijuana joint and the
testimony of the police officer who arrested them. Oddly enough, their legal
defense, led by Harvard Law School professor Charles Nesson and attorney
Matthew Fineberg, agrees to the charge that Cusick and Stroup violated the
letter of the law. The defense is instead using a unique two-pronged
strategy to question whether the law that Cusick and Stroup are accused of
breaking is a crime.

It all started on an overcast Saturday morning on September 15, 2007, as
organizers of the Rally, one of the largest such gatherings in the world,
second only to Seattle's Hempfest, were setting up the Common for the
tens of thousands expected to attend. Cusick and Stroup were setting up a
booth shared by the two organizations, NORML and High Times, who are
co-sponsors of the event. Having finished early, the two decided to take
advantage of the extra time by stepping behind their booth to smoke a joint
before the crowds began pouring in. Although they thought that they were
being discrete, the pair caught the attention of two undercover police
officers, were put in handcuffs, and escorted to a tent where other
offenders were being detained.

Like everyone else who was detained, the two were asked to apologize and
then to leave the Common for the rest of the day. However, upon noticing
the speaking credentials both were wearing and inquiring as to whom they
were, the officer in charge of the detainment center asked the two men to
exit the Common but allowed them to return, provided that they enter on
the opposite side of the Common. Both men were issued citations, but both
were indeed allowed to return and eventually spoke on the stage at the
rally and told the expectant crowd the story of their arrest that had
happened only a short time prior. The rally continued uneventfully and the
two men were allowed to return home with the understanding that they
would be back in a month for their arraignment.

Meanwhile, Associate Harvard Medical School professor Lester Grinspoon,
one of the foremost authorities on marijuana research and a friend of
Stroup, heard about the arrests and decided to contact his colleague and
friend, Professor Nesson, hoping that he would take the case pro bono.
Nesson immediately saw the potential in this case and stepped right in to
represent Stroup. From there Nesson and Fineberg, who was Cusick's
lawyer, began to figure out how they were going to proceed and started to
build a defense team. Coming onboard were Grinspoon, brought on as a
medical expert, and Keith Saunders, an associate professor at Northeastern
who holds a degree in marijuana studies and is the former president of
MassCann/NORML, the local chapter of NORML.

The defense is a two-part strategy. The first part involves making an
argument that to prevent responsible adults from smoking marijuana is a
violation of their constitutional rights, and therefore the case should be
dismissed outright.

This challenge on constitutional grounds had been made before, but the
last time it was in the courts in Massachusetts was 1979. That case, for
which Feinberg was also the lead attorney, was heavily considered, but
eventually the courts decided that there was just not enough empirical
evidence about marijuana to make a judgment that would go against
existing statutes. The defense argues that the amount of available
information and research in the field since then has expanded to the point
where there is hard, scientific evidence that shows in no uncertain terms
that marijuana is not only not harmful, but has value medically,
recreationally and spiritually. They also argue that under current laws
regarding the admittance of scientific evidence into a legal proceeding, the
evidence submitted against marijuana presented in the 1979 trial, and a
similar 1968 case, would not be allowed in today. Dr. Grinspoon provides
the court with a twenty-five page affidavit, based on his years of
groundbreaking work in the field, supporting the argument that marijuana
is not dangerous and therefore should not be classified in the same
category as other more harmful narcotics.

The second part of the defense's case revolves around a legal strategy
known as jury nullification. In jury nullification, the jury is basically informed
that even if they believe that the defendants are guilty of violating the letter
of the law, they have the right to decide that it would be unjust to take
their liberty away. In this sense, while it is the judge's duty to determine
what the statute says and how it should be interpreted, the ability to decide
the application of that statute to a defendant lies with the jury, a fact not
known by most jurors. This was originally understood to be a function of
juries, but judges have interpreted this power away and hold in contempt
of court any lawyer who tries to inform their jury of it. The Stroup/Cusick
defense team will ask that the jury be given a special instruction informing
them that they may find the defendants not guilty even if the jury believes
that the defendants are in fact in violation of the letter of the law.

According to Nesson, his ideal outcome in the trial is for the case to travel
up through the court system, eventually resulting in the Supreme Judicial
Court of Massachusetts making a ruling that lawyers can make a direct
argument to the jury concerning the application of a legal statute to a
defendant and whether or not that application is just. From there, Nesson
hopes to make such an argument to the jury in this criminal case and to
win it, setting a precedent for future such trials in the state. He believes
that this mechanism for challenging the drug statutes in the state would be
the least disruptive way to do so, the least dangerous for the judicial branch
avoiding direct conflict with the legislature, most directly expressive of the
will of the people, and truest to the Massachusetts Declaration of Rights.

In the first round of proceedings, the motion to dismiss on constitutional
grounds was denied, but the team will be back in the courts in early May to
make their argument for the special jury instruction. If successful, and
things proceed as the defense team hopes they will, this case could go on
to set precedent not only in the Commonwealth, but could ripple across the
national legal scene, and ultimately lead to a change at the legislative level.
For now, only time and the courts will tell.