Legal Defense Goes Up in Smoke: Harvard Professor Challenges Pot Laws Seeking Jury Nullification — and Loses

Harvard Law School professor Charles R. Nesson saw the arrest of Richard E. Cusick and R. Keith Stroup as an opportunity to challenge the Massachusetts ban on marijuana — insisting that the law did not even meet the minimal “rational basis” test and seeking jury nullification. Instead, his clients were not even given an evidentiary hearing, found guilty quickly by the jury, and sentenced to time served.

The arrestees are pot personalities: Cusick is associate publisher of High Times magazine and Stroup is the founder of the National Organization for the Reform of Marijuana Laws (NORML). They were arrested for sharing a marijuana cigarette at the annual Boston Freedom Rally in September.

Nesson’s argument on the lack of a rational basis test was meritless — even if he had gotten an evidentiary hearing. The standard is quite low and, as a drug, pot would easily meet the test. It seems that the strategy was really built around jury nullification — a strategy barred in many states and disfavored by virtually all judges. Jury nullification encourages the jury to ignore a technical or obvious violation given the context or inequities of the case.

After the verdict, Nesson said “The idea that they were found guilty of a crime was just crushing to me.”

An appeal does not look promising.

Perhaps a free exercise challenge might have more promise next time. Consider this song from Tree:

“God Grows Grass It’s Heaven sent
God Grows Grass for the environment
God Grows Grass illegally
God Grows Grass for you and me”

Or perhaps a worker’s compensation claims based on the Janis Joplin song:

Janis Joplin
“Now when I go to work, I work all day,
Always turns out the same.
When I bring home my hard-earned pay
I spend my money all on Mary Jane.”

Then there is the equal protection approach taken by Peter Tosh:

“Nurses smoke it
Judges smoke it
Even the lawyers too
Legalize it, yeah, yeah
It’s the best thing you can do.”

So to paraphrase Tom Petty,

“so lets get to the point
lets roll another joint
an head on down the road
to somewhere i gotta go “

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6 thoughts on “Legal Defense Goes Up in Smoke: Harvard Professor Challenges Pot Laws Seeking Jury Nullification — and Loses

  1. There is no singular American society – we’re too vast a Nation – sometimes it very well seems that we are 50 different countries with as many dialects. Not unlike fireworks, it would be nice to see States have more control over Pot – just as they do over Alcohol. I’m not suggesting any particular arrangement, its just that we need to shake the criminal aspect, at least at the Federal level, off this substance.

    As it stands – your State may say it’s okay to smoke marijuana – but the Federal Law still makes it illegal to possess it. Look at this taxonomy:

    Fed: Illegal to possess or transport
    Fed: Classifies Marijuana as Schedule 1 substance
    Fed: Marijuana no medical value
    Fed: Marijuana illegal for ANY use
    Fed: Marijuana under IND (Investigational New Drug) application is controlled by FDA
    Fed: IND – exempts smoking, possessing still illegal

    State: What??

    This is the same trickery used regarding Cuba.

    Americans are not prohibited from traveling to Cuba.
    We are restricted from engaging in commerce with Cuba.
    The Treasury Department controls the licenses.
    If you are a Cuban Born American – you have different rules since you can travel on a General license with time restraints.

    In this board-game, the Federal Government has decided on special classes of American Citizens.

    Got Freedom ??

    “All who live in tyranny and hopelessness can know the United States will not ignore your oppression or excuse your oppressors,” G.W. Bush, 2005 Inauguration

  2. Jury F’n Nullification? By a Harvard Professor?!!

    Let’s not forget this traditional, originally penned by Johnny Locke and covered by Jefferson [Republic]:

    “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”

    “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.”

    Although in later years Jefferson would have a falling out with young percussionist (artillery commander) Hamilton, Hamilton continued carrying the tune in Federalist 81

    “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”

    One would think that a Harvard professor would at the very least put the question of “where did this alleged power to incarcerate people by exercising power over their inalienable right of self-ownership” arise?”

    ‘Goin down the road feelin’ bad
    Goin down the road feelin’ bad
    Goin down the road feelin’ bad
    Don’t wanna be treated this ole way’

  3. JT:

    Professor Nesson was doomed from the start because of the Victorian mindset that pervades these archaic laws. You’d think a Harvard man would know better. The “rational basis” is the history of the drug itself (much like alcohol) along with the propaganda by the media of its evil propensities and the “dire” consequences of its, even occasional, use. Gateway drug, you know.

    He could have avoided all this by merely heeding the sage words of Cheech Marin:

    “The reason we’re so dangerous is because we’re totally harmless.”

    Harmlessness has never been a disqualifier from criminal sanction when you set your sights on the sacred bull.

  4. Ah what mischief was wrought by Harry J. Anslinger, who was just a guy looking to keep his job. The Legal System won’t be in a position to deal with this rationally, at least for many years to come. This needs doing legislatively. Unfortunately, too many legislative hypocrites and fools lack the courage. A good definition of a fool or a hypocrite is anyone who talks seriously and supportively about the War on Drugs.

  5. Issue is too real for too many people. Racial disparity, crime.

    I mean start with state taxes on tobacco! I’m sure the ATF has a purpose, but their history is so washed out. Now I see most states are dealing with the issue themselves. Oregon expects you to send in taxes for ciggarettes ordered online. Does this exclude cigars, or snuff. What is so special about nicotene that I have to send in Form 514? Washington charges a certain amount of mil per ciggy. What is a mil?

    Medical is good, we have doctors who are recommending ways to deliver THC more effectivly. But it doesn’t address the war, and I’m not sure how society can protect their children by imprisoning another’s. I mean the war on drugs… I think…

    Selling produce without FDA licensing is one thing, but posession is a basic human right.

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