Tuesday, August 3, 2010

The Whole Truth

When federal agents raid a medical marijuana dispensary or grower, as they’ve been doing and continue to do in California and Colorado, the victim of the raid is charged with a federal crime. Their case is heard in a federal court. No surprise there, as cannabis is illegal under federal law. And did anybody really expect the DEA to stop the raids just because the U.S. Attorney General and President said so? But I digress. Fair enough. You commit a federal crime, you go to a federal court.

But that’s where the fairness stops. You see in federal court, the “defendant” is not allowed a defense. OK, they’ve obviously committed a crime in the eyes of the feds. Unless they can get off on a technicality, it’s pretty hard for a dispensary owner to deny that they were selling and/or growing marijuana when they have a storfront that’s open to the public. So their only possible defense is that they were acting in accordance with state and local law. In one case, the victim a DEA raid had even been deputized by the City of Oakland expressly to shield him from federal prosecution. Sounds like a pretty good defense to me.

But that is exactly the kind of defense that federal judges do not allow. In all such cases to date, the defendants were not allowed to present evidence that they were in compliance with state laws. They were not allowed to mention medical marijuana or use a medical necessity defense. In other words, they were not allowed a defense, any defense, period. There is currently legislation pending that would change this, and would allow what most would consider a reasonable defense when federal and state laws are in conflict. But it’s not passed yet, and the raids continue. And once you are arrested and charged by the feds, you’re as good a convicted as things stand today.

Pretty screwed up if you ask me. But what I’d really like to know is how can these defendants take the oath before testifying? You know, the one that goes, “Do you swear to tell the truth, the whole truth, and nothing but the truth?” If they take this oath and testified, wouldn’t they be committing perjury? They would, under orders of the court, not be telling the whole truth. In fact, they would be witholding pretty much all of the relevant truth. Of course if they do tell the whole truth, they would probably be found in contempt of court and a mistrial declared.

So if it were me, and I took the stand, and I was asked to take the oath, I would have to respectfully decline. I couldn’t, in good conscience, swear to do something that I was expressly instructed not to do. I wonder what would happen? Can a judge order someone to violate the law? I’d like to find out. Might make for an interesting precedent.

If you’d like to learn more about how the system works, Google the cases of U.S. v James Dean Stacy, U.S. v Edward Rosenthal, or U.S. v Charles C. Lynch. For more information about recent and pending cases, check out Federal Medical Marijuana Cases in California & elsewhere.

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