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:
“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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