Thursday, March 27, 2008

Blackburn succeeds in Amarillo with medical necessity defense for marijuana defendant

Reason's Hit and Run blog brings the news that our buddy Jeff Blackburn - the civil rights attorney who runs the Texas Tech law school Innocence Project and was the main lawyer representing defendants in the Tulia drug sting case - has just won a major victory in an Amarillo courtroom, convincing jurors that his client used marijuana out of medical necessity. The argument earned him an acquittal! Congrats, Jeff! According to a press release from the Marijuana Policy Project I received via email:
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.
Outstanding news! More from the Marijuana Policy Project and from AP. MORE: See coverage from an Amarillo TV station and the Amarillo Globe News. AND MORE: See a legal analysis from Defending People.

UPDATE: Robert Guest points me to this hilariously misguided thread on the topic at the prosecutors' user forum. Given that a) a judge allowed the medical necessity defense, and b) a jury acquitted on it, you've gotta like Williamson DA John Bradley's legal assessment that "The government has already decided, as a matter of law, that the drug is not available for such a purpose. No defense permitted." Further evidence that Mr. Bradley's legal advice and $2 will get you a cup of coffee at the Starbucks and little else.


W W Woodward said...

Chapter nine of the Texas Penal Code lends itself to some very interesting reading. Some police academy instructors seem to want to concentrate only on the sections that justify the use of force and either don't mention or skim over the sections covering justification for other actions that constitute criminal activity.

Congratulations to Mr. Blackburn.

Question: If chapter nine did not exist, would the medicinal use of marijuana be an appropriate subject for jury nullification?

Anonymous said...

Check out the TDCAA thread on this case. JB's quote is priceless.

Anonymous said...

The level of ignorance being displayed in the comments section there is downright laughable, especially this one about alternative ingesting of Marinol:

Also he was really so sick that he couldnt keep from vomiting the pills then he could just as well smoke them in a pipe or bong."

Riiiiiight. Smoke synthetic THC mixed with sesame oil...'in a pipe or bong'?

After you, good sir, after you...just let me get out of the projected trajectory of your expected vomit for trying such a move. And yet such nonsense is daily presented by those who proclaim themselves as 'experts' in drug usage?

Unknown said...
This comment has been removed by the author.
Unknown said...

The reaction to the first post by JB on the TDCAA thread got me thinking.

I agree with him. Maybe in a state where medicial marijuana has been recognized could such a defense be presented - but not in Texas where the clear public policy of the state is to reject the suggestion of a medical use for pot.

And that being so, experts called in support of such a defense should have been excluded as a matter of evidence. I could not imagine that expert testimony of this kind would pass either prong of Daubert.

Why was it so absurd for JB to say as much?

Gritsforbreakfast said...

"Why was it so absurd for JB to say as much"

Mostly because he turned out to be flat out wrong as the case played out in the real world. A prosecutor asked for advice on a forum about how to respond to this defense, and JB's answer exhibited the same arrogance that caused the Amarillo prosecutor to lose the case - he didn't take the defense arguments seriously. The judge did, though, as did a conservative West Texas jury, and both decided JB's view was erroneous.

Blackburn didn't win this case through jury nullification. He won by arguing the law.

Gritsforbreakfast said...

Chase, I'm sure this is the section of the Penal code that JB et. al. thought could never apply:

§ 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) 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
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Since a law banning pot is not the same as a "legislative purpose to exclude the justification" of its medical use as a defense, I don't think it's nearly cut and dried as you seem to think that the expert testimony should have been excluded. Clearly the judge disagreed, and the when they heard it, the jury obviously found the testimony persuasive.

Anonymous said...

I hope the DA's involved are reading this, and will know that everyone in the world knows that the only reason 99% of them went to a DA's office is because they didn't do well enough to get a real job at a real firm so they had to settle for $30K a year prosecuting hot checks.


elvez1975 said...

JB was right on: there is no statutory authorization for anyone to use marijuana for medicinal purposes in the State of Texas. But the judge gave a reasonable interpretation of 9.22 and the jury did it's duty. So any grousing that this is jury nullification by DA's is BS.

Too bad a medicinal necessity defense is not useful in more than but a handful of cases.

Anonymous said...

Why JB's quote is misguided.

If Medical Marijuana was allowed in Texas then no defense would have been needed.

Necessity only applies to illegal acitivity.

More misguided is the seeking of convictions, not seeing that justice is done.

Gritsforbreakfast said...

Robert Guest nailed it. A necessity defense by definition only applies to otherwise illegal activity. JB was wrong on the law, or at least failed to take into account its caveats, which Jeff Blackburn had clearly thought about more thoroughly. If the Amarillo prosecutor involved took JB's statement as fact, that's probably why they lost.

elvez1975 said...

In fairness, "[t]he government has already decided, as a matter of law, that the drug [marijuana] is not available for such a purpose [medical use]" is completely accurate.

"No defense permitted" was obviously way off.

Gritsforbreakfast said...

In other words, elvez, he correctly articulated the fact, but failed to draw the proper legal conclusion. (See my earlier comments about Bradley's legal position, $2 and a coffee at Starbucks.)

elvez1975 said...

Exactly. Can I just say that I feel filthy for saying Bradley was right about something.

I'm like Lady Macbeth over here....

Anonymous said...

The reason the instruction was improper was that the "immediately necessary to avoid imminent harm" prong of the necessity defense was not met. The main case that has addressed this situation held: "Appellant's 'medicinal' use of marihuana to manage his post-traumatic stress disorder symptoms is not the type of imminent harm to which the necessity defense applies." Stefanoff v. State, 78 S.W.3d 496 (Tex.App.-Austin 2002, pet. ref'd).

In other words, the necessity defense is supposed to arise from a split-second decision. Id. It is not supposed to be a lifestyle. See id; see also Coleman v. State,
Not Reported in S.W.3d, Nos. 03-04-00469, 2006 WL 2080656 at *3 (Tex.App. - Austin July 28, 2006, pet. ref'd)("Coleman was not entitled to a necessity instruction because his continued possession of the firearm for over two years could not have been based on his "reasonable belief that the criminal conduct was immediately necessary to avoid imminent harm.").

Moreover, the defendant [url=]possessed a lot more[/url] marijuana than could have been immediately necessary.

The decision to allow for medical marijuana should come from the Legislature. A medical marijuana law would probably be a good idea. But allowing this kind of jury nullification of the law can be dangerous. The anti-abortionists have tried for years to invoke the necessity defense to protect their misdeeds.

Gritsforbreakfast said...

You think using marijuana to stem nausea during chemotherapy is a "lifestyle"? That's a bizarre statement. Have you ever known a cancer patient who went through extreme chemotherapy? It's not exactly the same as cross dressing.

Also, a different section of the statute covers the necessity defense and firearms. That example is moot on its face.

Post traumatic stress and chemo-induced nausea are two different things, and the chemo-induced nausea is MUCH more immediate. I think taking into account your references, the judge could still easily decide to admit Blackburn's defense. In fact, if that's the best you've got, I'm sure it doesn't necessarily contradict the judge's decision.

Face it, Blackburn just outlawyered the prosecutor. This wasn't remotely "jury nullification." That's just sore loser talk.

Anonymous said...

First, there isn't any special provision in Section 9.22 for firearms. Moreover, the Coleman case did not rely upon your alleged special rule for guns.

Second, I didn't mean anything pejorative by the word "lifestyle." The necessity defense just doesn't apply to these kind of chronic or protracted situations.

Third, the news reports seem to indicate that this defendant suffers from "cyclical vomiting syndrome." There is no reason why legal precedent addressing PTSD should be distinguishable from vomiting syndrome.

Mr. Stefanoff's problems were certainly at least as bad as those of the defendant in the present case. The court of appeals in Stefanoff stated that the defendant presented PTSD evidence that included "suicidal thoughts, flashback, depression, rage, and nightmares."

I have no stake in an Amarillo case, but there is nothing in the news accounts that even remotely suggests that there was either an "immediately necessary" or an "imminent harm" that would justify the possession of enough marijuana to roll several joints.

Anonymous said...

What is it about marijuana that brings out the worst in people and institutions? What are they so afraid of?

Gritsforbreakfast said...

First, you're right there's no "alleged" special provision for guns, there are specific laws detailing when their use in self defense is justified that are outside of 9.22. That's a different issue from a medical necessity case, and a red herring.

Finally, and then I'm done (because the judge already decided you're wrong so I don't have to prove it), you've clearly never known anyone who went through chemo, or you'd never talk about it as though it poses no imminent harm. PTSD symptoms simply do not have the immediacy of chemo-induced nausea. Given that, it's good that expert witness got in so that others wouldn't make decisions based on similarly ignorant assumptions.

And to 3:29, I have no idea what they're afraid of, but they're afraid something fierce.

Unknown said...

I still don't buy allowing necessity as a defense here.

Merely wanting - or even really wanting to engage in a course of conduct is not the foundation of a necessity defense when the course of conduct is otherwise illegal. And that's exactly what happened here.

The correct strategy for making marijuana available for medical uses is through the legislative process. There is a growing national discourse about medicinal pot that has contributed to the passage 'compassionate use' statutes in other jurisdictions. The fact that, despite this ongoing public discussion, Texas has refused to extend legal recognition of a medical use for smoked marijuana.

Moreover, the medical community at large is divided on medical marijuana. You must agree there is no widespread acceptance of such uses. This, to me, would be sufficient to prevent expert testimony on the subject.

I think the trial judge was wrong on the law, plain and simple.

Anonymous said...

You can post to Tim's myspace page.

Gritsforbreakfast said...

I'm not a lawyer Chase, but in addition to the arguments above my gut reaction is to disagree for this reason. There are basically two ways courthouse lawyers win cases: They either know the law or know the judge.

The judges in Amarillo largely dislike Blackburn after the Tulia case and many lower-profile episodes, some actively so, but nobody can say he doesn't know the law. I'm not qualified to offer a definitive legal opinion, but my political judgment would be that if Blackburn got this defense in an Amarillo courtroom, it's probably a viable legal interpretation.

Perhaps the judge and six jurors simply agreed that for nauseous cancer patients smoking pot, "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." I don't find that to be a particularly incredible point of view.

Anonymous said...

Perhaps the reason so many pro-prosecution types find the defense incredible is that they have no heart. These are cold people who don't care about the seriously ill man who needs (note, I said NEEDS, not WANTS) to smoke a little dope to keep from continuously vomiting. I can only imagine that people that callous are devoid of any compassion for a fellow human being who is suffering. They'd rather put him in jail.

Unknown said...

Blackburn was doing exactly what every good criminal defense attorney should do: he developed a compelling theory of the case and passionately advocated it on behalf of his client. For his effort, I commend him. For his success, I applaud him.

That said, I still disagree with the legal authority of the court's verdict. Because a 6 member petit jury accepted the defense he presented doesn't necessarily mean it was the legally correct decision.

In any event, grits, thanks for bringing this case to my attention and sparking a fire that drew me from my lurker status.

Anon d: You might be surprised to find out that I actually support the medical marijuana movement. Hell, I support decriminalization of possession of marijuana in general.

But I'm not a doctor so I can't say that there are some conditions best treated with smoked marijuana. Although I've heard many of the anecdotal success stories, I'm also aware that only a handful of states have agreed and taken the bold step of enacting compassionate use laws.

At the end of the day, Texas is part of the majority of states without such a law. The State's official position on marijuana is possession in usable quantities is unlawful. The legislature has not recognized a medical use for marijuana, nor has it provided any affirmative defense similar to those in Section 481.123 that would confer legitimacy on a defendant's self-assertion of medical necessity.

Furthermore, from the perspective of the compassionate use movement, asserting the necessity defense may even be considered a strategic blunder.

IMHO, the prosecutor should have taken the circumstances into consideration and offered a reduced plea. Even if he would have rejected such an out, with no criminal history, a first conviction of less than one pound is subject to mandatory probation. He would have an even more sympathetic character, a victim of the cruel laws that would punish an ill man for possession of a minuscule quantity of pot. He might have even been been anointed as the poster child for medical marijuana movement in Texas.

Instead, he found an end run around the greater movement. The door has been cracked for standardless abuse of the defense by those who really don't "need" it. Imagine what could happen: any person who has a bad head cold when he's caught with a bag of weed will be tempted to claim a medical necessity. If that happens, the social conservatives in Texas - a group blessed with numbers and political power - who generally consider medical marijuana as a "California thing" might come together to pressure Austin for a clearly articulated anti-medical use policy.

A single case like this where the necessity defense is successfully asserted barely blips on the radar of the vast majority of Texans. But rest assured: if this case is but a harbinger of things to come, you can safely bet the public will take notice, and a big share of that attention won't be positive.

elvez1975 said...

Do you honestly believe that any judge is going to allow the instruction for a "bad head cold"?

Asking for something and getting it are two entirely different things.

Unknown said...

Well, I honestly wouldn't have believed a judge in Texas would allow the defense for anyone.

In fairness, I don't think the "bad head cold" case would be permitted - though now, if you're a defense attorney, you owe it to your client to at least inquire as to any illnesses or conditions. Instead of a defendant with a bad head cold, what if the defendant was afflicted with a condition that caused infrequent, but acute, pain? What if he claimed he was a victim of previously undiagnosed chronic pain? Let your imagination run wild. More you move away from the extreme diagnoses (terminal cancer on one end and the common cold at the other) and get into the more difficult, more uncertain cases in the middle, the real problem becomes apparent: without standards to measure a given defendant's medical condition against to aid a jury when deciding whether an asserted necessity defense is appropriate, the risk of misapplication (read:over application) is simply too great.

elvez1975 said...

As a defense attorney, I have an ethical duty to the court to "not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous." (TDRPC 3.01). If I'm out there making ridiculous arguments about marijuana being needed for head colds, I probably deserve some sort of discipline by the State Bar.

There's still an issue of veracity that is up to the jurors for the things that are closer to the intense pain and nausea end of the spectrum. If they believe that the reasons asserted by the defendant are frivolous and raised only to pigeon-hole his/her case under 9.22, I have no doubt that they will reject it. This means the likely result for the guy who refused to seek any other sort of legal medical treatment and went right to weed is not going to fare very well (and a defense attorney that advised him to pursue such a defense is arguably giving very poor advice).

The occasional, but acute pain victim's case is equally dependent on the facts of the case. Has he/she tried to resolve this with legal pain management?

The bottom line for me is that the slippery slope you envision is entirely unlikely to be neither as steep nor as slippery given all the elements of 9.22 that the jury must decide in the defendant's favor. It is going to be the exceedingly rare case that passes muster. The standards are laid out in 9.22 are going to result in different juries rendering different decisions in cases with similar facts. That happens every day at the courthouse.