Drugs

The Drug Policy Alliance's website makes an excellent point that the prohibition of one drug inevitably leads to people finding an alternative.

The prohibition on drinking for those under 21 leads to more excessive drinking for underage folks when they can get their hands on liquor, whereas those over twenty-one know that their next beer is a simple few blocks away at the convenience store. Perhaps fewer people under 21 would smoke marijuana if it were lawful for them to drink alcohol -- seeing that marijuana may not be much harder for underage people to buy than alcohol, and it is easier to hide in one's pocket (although I advocate more marijuana smoking than alcohol drinking, and better yet, neither, once marijuana becomes legal). Do more people under 21 even smoke nicotine than if alcohol were legal, seeing that they can legally purchase and use tobacco starting at the age of eighteen?

For all of marijuana's benefits and risks, it is natural, at least when not sprayed with chemical pesticides or adulterated with fillers or by falling on dirty floors or getting in unclean hands and contaminated equipment while being processed, packaged, and repackaged.

On the other hand, a popular form of fake marijuana -- K2, or Spice, which is currently lawful in most states and sold by many retail shops -- apparently consists of a chemical(s) sprayed on vegetable matter, to look like marijuana. Why play with nature like this, particularly after centuries if not millenia of anecdotal evidence of the relative safety and benefits of marijuana? K2 would likely have no popularity were marijuana not criminalized by the law and demonized by employers and school athletic departments.

Do not blame K2's inventor for sales and use of Spice. CBS online quotes him as saying "People who use it are idiots."

Certainly, the discovery and history of K2 is nowhere nearly as fascinating as the discovery and history of LSD. By the same token, K2’s discovery, reported similarities to marijuana as to the high (but apparently falling short of  marijuana’s high and general effects), and generally free availability on the legal open market are fascinating. As CBS online recounts: “Dr. John Huffman [not to be mistaken with LSD inventor Albert Hofman], a Clemson University organic chemistry professor, was researching the effects of cannabinoids on the brain when his work resulted in a 1995 paper that contained the method and ingredients used to make the compound. That recipe found its way to marijuana users, who replicated Huffman's work and began spraying it onto dried flowers, herbs and tobacco.”  

By imperfect analogy, today we see people making and selling their own K2 using Huffman’s research, just as independent chemists found a way to make and sell their own LSD –- which remained legal for part of the 1960’s before the drug laws caught up -- using Albert Hoffman’s research.

Additional useful commentary and information on K2 is available at the Drug Policy Alliance’s blog, Live Science, and the University of Kansas’s newspaper.

In any event, what will drive people to smoke K2 over marijuana other than its availability at retail stores and its showing up in urine tests as something other than cannabis? Speaking from supposition rather than experience beyond having smoked marijuana a few times in high school and college, it appears that a chemical compound will be unable to match the natural superiority of marijuana. Albert Hoffman found a way to make a chemical hallucinogen, LSD, more popular than natural hallucinogens, but K2 is hardly a threat to marijuana’s marketability. Aside from those needing to pass drug tests, perhaps K2 will be popular with people who already have prior criminal convictions and  are concerned about more serious sentences for subsequent marijuana convictions due to not having a clean criminal record.

Maybe K2 will get banned in more states. New legal highs are likely to follow.

ADDENDUM: March 12, 2010: On March 10, somehow only my draft and not final version of this article originally got posted, perhaps because there were technical difficulties saving the final version. I have now fixed that.

NOTE: Following is an article that I recently submitted for publication in the newsletter of the Maryland Criminal Defense Attorneys Association:

Here are some thoughts for persuading judges, jurors, and prosecutors for negotiations, trials, sentencings, and probation/parole violation hearings involving marijuana: 

- In all likelihood, a small minority of convicted Maryland marijuana defendants will be sentenced under the medical marijuana sentencing scheme. Therefore, medical marijuana arguments alone are not enough in seeking favorable outcomes in medical marijuana cases.

- I have previously written in MCDAA newsletters, about medical marijuana defenses (see http://katzjustice.com/underdog/permalink/Marks-Katz-obtains-Maryland-medical-marijuana-sentence-on-multiple-plants..html and http://katzjustice.com/underdog/permalink/MarijuanaGrowDefense..html) and probable cause arguments involving marijuana smell (see http://katzjustice.com/underdog/permalink/MarijuanaSmell..html).

- In the criminal justice system, marijuana gets lumped in all too often with more harmful drugs. It can be important to distinguish marijuana as meriting less concern than more harmful controlled substances, distilled as the “it’s just marijuana” argument.

Federal and state legislatures nationwide have acknowledged that marijuana is less harmful than plenty of other controlled substances by creating less harsh sentencing schemes for marijuana than with such controlled substances as cocaine and heroin. In Maryland, marijuana gets treated less harshly than cocaine and heroin for maximum possible penalties for misdemeanor and felony possession, by omitting marijuana felony possession from the mandatory minimum second felony offender drug scheme, through lighter treatment in the voluntary sentencing guidelines, and through mere fines for proving medical necessity in marijuana possession cases.

- All judges, prosecutors, jurors, and police are going to have preconceived notions about marijuana, through such factors as past personal marijuana use and personal observation (if any), observing its effects on friends and family members, and considering propaganda from all sides of the issue.

- Arguments from the marijuana legalization/decriminalization side include:

-- Marijuana is less dangerous than alcohol.

-- The entire marijuana plant offers strong medicinal, industrial, environmental, and personal benefits. The industrial and environmental benefits are perhaps most visibly promoted, unfortunately to the point of overhyping, by marijuana champion Jack Herer in The Emperor Wears No Clothes, which is available in full-text at http://www.jackherer.com/chapters.html.

          As to marijuana’s personal and medicinal benefits, Harvard medical school emeritus professor Lester Grinspoon is a high-profile proponent with strong academic bona fides to back him up. He started studying marijuana in the 1960’s expecting to prove marijuana's harm but then found the opposite to dominate. Eventually, he decided it a good idea to try for himself the marijuana he had been studying. He became a big fan of personal marijuana use ever since. Grinspoon says of marijuana: “Over the years, I have come to understand that marijuana is not just for fun, it’s not just for medicine, but there are other ways in which this high is useful … I began to realize that this drug, this plant, is truly remarkable, that it can be used to enhance various aspects of life." “Pot Shots: The Faces of Marijuana in Boston,” by Chris Wright, Boston Phoenix, http://www.bostonphoenix.com/boston/news_features/other_stories/multipage/documents/01815009.htm.

Grinspoon said: “I came to realize that I was the one who was misinformed [about marijuana] — that despite my training in science and medicine, I had been brainwashed like just about every other citizen of this country." “Pot Shots,” supra.

Grinspoon also said of marijuana: "Marijuana expands the breadth of variables one can bring to bear on a situation. It allows the intellect to visit parts of one’s consciousness that are usually off-limits … Cannabis has helped me make some important life decisions. This is something I’m glad I didn’t have to go through life without." “Pot Shots,” supra.

- Arguments from the marijuana opposition include assertions that today’s marijuana is more potent than the marijuana smoked even a generation ago; marijuana is a gateway drug to more harmful controlled substances; marijuana is not FDA-approved and not enough is known yet about its safety; and alcohol is dangerous enough, and we do not need more dangerous drugs legalized.

    Here are rebuttals for each of the foregoing four claims:

-- The more potent that marijuana becomes, the less marijuana people need to smoke to obtain the same high or other benefits. Unlike wine, beer and other alcohol, marijuana use is not about finishing a serving of marijuana in one sitting. A marijuana cigarette may be extinguished for later use, and marijuana used in pipes gets burnt in small amounts and the rest can be saved for later. Marijuana used in baked goods also can be consumed in more than one sitting, as well.

-- One scholarly study that helps debunk the argument that marijuana is a gateway to more dangerous drugs is “Predictors of Marijuana Use in Adolescents Before and After Licit Drug Use: Examination of the Gateway Hypothesis,” by Ralph E. Tarter, Ph.D., et al., American Journal of Psychiatry (Dec. 2006), http://ajp.psychiatryonline.org/cgi/content/full/163/12/2134.

-- Harvard medical school emeritus professor Lester Grinspoon  estimates that at least $200 million is needed for studies to get a drug approved by the United States Food and Drug Administration. Absent huge financial donations from the likes of Bill Gates and George Soros to meet the FDA’s drug-study protocols, nobody is going to pay for such a study. Marijuana is unpatented, so pharmaceutical companies will have no interest in paying to get FDA approval for marijuana. With the FDA approval process too expensive for marijuana, Dr. Grinspoon points to persuasive anecdotal evidence of marijuana's strong benefits and low risks as medicine. “Commentary: On the Pharmaceuticalization of Marijuana,” by Lester Grinspoon, MD,

International Journal of Drug Policy, 12 (5-6) (2001), pp. 377-383, http://rxmarijuana.com/Pharmaceuticalization.htm.

-- As to the claim that we do not need to legalize additional dangerous substances, in what ways is marijuana more harmful than alcohol, nicotine and caffeine, with all being profoundly addictive, and marijuana nowhere near as addictive? How many people have died from a marijuana overdose, if such overdoses even exist? What percentage of people become violent after drinking many beers versus the percentage of people who become all the more mellow after smoking (or eating, in baked goods) even a small amount of marijuana?

- Recently, I spoke with a forensic chemist who typically testifies for the criminal defense side in drunk driving cases, about marijuana laws and the extent of marijuana’s benefits and harms. He believes very strongly in keeping marijuana illegal -- even for medicinal use -- and that its benefits are far outweighed by its risks and harms. 

This forensic chemist talked of the presence of over 150 chemicals in marijuana, and of marijuana's harms being like shooting a shotgun, having a minority of the pellets being beneficial -- not being sure which of those pellets are beneficial -- and having a substantial number of the pellets dangerous. He analogized to asbestos, which was used for many years before anyone found any harm from asbestos.

- Regardless of how accurate the above-mentioned forensic chemist is or is not about marijuana’s dangers, the late pharmaceutical and marijuana expert John P. Morgan, M.D., made a strong argument that marijuana is comparatively safe, in reference to alcohol and other recreational drugs, and its potential benefits are enormous. As to drivers under the influence of marijuana, he believed they often slow down. Even if marijuana turned out to be very harmful, which Dr. Morgan discounted, he would have found that to be all the more a good reason to have marijuana -- along with all other drugs -- legalized, regulated, and better controlled through the marketplace, and removed from the dangers of the current illicit drug market. “Why Marijuana Should Be Legalized: An Expert's Perspective,” http://www.youtube.com/watch?v=9KLy150NR_U&eurl=http://www.celebstoner.com/news/marijuana-news/marijuana-advocate-author-dr.-john-p.-morgan-1940-2008.html.

 - Local martial arts practitioner and massage therapist Matt Stampe takes the following balancing approach with marijuana use:

-- "[M]y Chinese doctor used to grow her own herbs and they really were helpful. I don’t see why marijuana which is 'yin' energy could not be included with other powerful herbs.

-- "As a licensed massage therapist- I have mixed views on the legalization of marijuana. First it is still a toxin to the lungs, second it affect QI 'chi' flow in the body, and can damage the 'Shen' or Mind and 'Jing' or essence of reproduction. Marijuana does pose a threat to our society in that is can make people dumb, create accidents, and make bad decisions. However I do stand for its healing benefits and some of the results for AIDS, Cancer, and other uses that help the individual and economy."

- When defending students at parallel student disciplinary proceedings for marijuana possession, it may be beneficial to remind the student disciplinary panels that in 2006, nearly two-thirds of voting University of Maryland students voted to soften penalties for marijuana in student disciplinary proceedings. http://cannabisnews.com/news/21/thread21731.shtml. The school administration left the vote as advisory only.

- In such jurisdictions as Prince George’s County, where prosecutors routinely reduce marijuana felony possession charges to simple possession for quantities under two ounces, watch out for judges who will be inclined to sentence more harshly when considering the marijuana quantity involved and when considering the later-amended felony possession charge on the charging document.

Both for making a preemptive strike under such sentencing situations, and for arguing to prosecutors and factfinders that large quantities are for personal use only, consider that marijuana is very economical to buy in bulk for personal use, making it significantly less expensive than purchasing in small quantities. Pricing information on marijuana is routinely carried in High Times magazine. Pricing information together with testimony from a suitable medical doctor (about marijuana dosages) can help counter arguments that marijuana amounts over an ounce are intended for distribution.

- Some dealers of marijuana and other drugs throw in small baggies for resale purposes. Therefore, the mere possession of small empty baggies along with one large bag of marijuana is not sufficient by itself to prove intent to distribute.

CONCLUSION

          Although many of the foregoing views are applicable to arguments for reforming the drug laws, many of these arguments can also be effective in negotiating marijuana cases (and in some instances other drug cases), arguing the cases at trial, and arguing at drug sentencing.

          A criminal defense lawyer’s arguments that marijuana should be treated as a less harmful drug than cocaine and heroin should not diminish the same lawyer’s effectiveness in arguing for other clients that stronger drugs also should be dealt with more heavily with probation supervision and treatment than with lengthy incarceration.    

Virginia has a statute allowing marijuana field testing testimony into evidence:

"In any trial for a violation of § 18.2-250.1, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science pursuant to regulations adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), regarding whether or not any plant material, the identity of which is at issue, is marijuana provided the defendant has been given written notice of his right to request a full chemical analysis. Such notice shall be on a form approved by the Supreme Court and shall be provided to the defendant prior to trial." Va. Code § 19.2-188.1.

Here are my mostly off-the-cuff recent comments on this matter to the Virginia Association of Criminal Defense Lawyers' listserv, on this topic:

I am trying to transcend being burnt up that any judge will allow in marijuana field test evidence at trial, particularly where the defense has obtained an order for the plant material to be tested. Here are a few thoughts:  

- The field test calls for expert testimony. Were there expert testimony, the field test hopefully would be exposed for its holes.

- Just as cops are not permitted to give conclusions about the meaning of field sobriety tests, neither should cops be permitted to give interpretations of the meaning of field tests. If cops are going to be able to testify about field tests, it should be limited to saying something along the lines of: “I took a medicine dropper, inserted it into a bottle (argue that it is inadmissible hearsay for the cop to read out the name of the test kit used, nor the expiration date, without bringing the same one to court), put a drop on a portion of the green leafy material, and saw that green leafy substance turn to this or that shade of purple (or whatever other result) after I did so.”

To permit the cop to testify that the material tested positive for marijuana brings in inadmissible hearsay and expert testimony about what on earth the change in color of the marijuana from adding the test chemical means.

- Maybe lawyer Jim Shellow will have more ideas. I wrote about him yesterday about his command of challenging drug chemist analyses:  http://katzjustice.com/underdog/permalink/DefendingDrugAnalysis..html

- As mentioned in my foregoing blog entry, Melendez-Diaz mentions Shellow. These field tests involve testimonial evidence, geared towards testimony at marijuana trials. Sure, the requirements of the unavailability of the witness in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) does not fully apply when the field testing officer is present, but the whole field testing scheme is testimonial, and the prosecutors do not present the testimony (nor even written certifications) of the people who manufacture nor approve the field testing kits for accuracy. Of course, that is also a problem when prosecutors try presenting results of Intoximeter results without the testimony nor certified letters from the people certifying the Intoximeters.

- Although I have had judges discount caselaw from other jurisdictions – unfortunately sometimes without even knowing what is in the decisions – two opinions to keep in the backpocket relating to the above issues, and to DWI cases, are:

-- Blackwell v. Maryland:, addressed and cited at http://katzjustice.com/underdog/permalink/DUIdefense..html (only expert testimony is allowed to present testimony on the administration of the horizontal gaze nystagmus test, so only expert testimony should be permitted to allow police to talk about their procedures and observations with field tests of suspected marijuana);

-- U.S. v. Horn, 185 F. Supp. 2d 530  (D.Md. 2002) (helping to cut down field sobriety tests towards the junk science that they are).

On a recent criminal defense lawyers' listserv thread, a colleague recommended James Shellow's Cross Examination of the Analyst in Drug
Prosecutions (Lexis-Nexis). My colleague who posted on Shellow's above-listed treatise points out that he was a chemist before going to law school.

Interestingly, Justice Scalia references Shellow, as follows, in his majority opinion in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009):  

"While we still do not know the precise tests used by the analysts, we are told that the laboratories use 'methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,' App. to Brief for Petitioner 1a–2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, ch. 23A, p. 607 (4th ed. 2007) (identifying four 'critical errors' that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert& Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, 'forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment')."  

As an aside, I have briefly met Jim Shellow, when he was on faculty for a couple of days at the Trial Lawyers College in 1995. He comes across as a very respectful man with no big ego. From having listened to his in-depth talk there about challenging chemical analyses of alleged drugs, it would appear that he is very thorough with his cross-examinations of chemists. Jon Katz

Image from public domain.

The District of Columbia City Council will hold hearings on February 11, 2010, on the road to effectuating the medical marijuana initiative that D.C. voters approved in 1998, but which Congress blocked until recently. Further details are here http://www.dccouncil.washington.dc.us/media/2010%20Meeting%20Notices/HandPSJpublichearingFebruary1120101000.PDF. Thanks to the person who notified me of this important date.

Recently, I heard Steve DeAngelo speak live about medical marijuana. During his talk, he showed his above-displayed video about the Harborside Health Center in San Jose, California, where he is the executive director. The center provides medical marijuana and holistic services.

I know that the above-displayed video puts HHC's own spin on their facility, but it is great propaganda nonetheless. Jon Katz

No matter the prohibition laws, many people will still go out of their way to obtain lawful and unlawful highs, whether through scheduled drugs, frog-licking (if that even works), homemade alcohol, glue-sniffing, gasoline sniffing, and the list goes on.

Around a century ago, and on the heels of alcohol prohibition, lawmakers in the United States criminalized controlled substances with a vengeance. That did not stop LSD from being introduced in the United States initially as an unregulated substance. (See LSD founder Albert Hoffman's fascinating account of his LSD discovery and use here.) Consider all the wasted legislative and criminal justice system energy spent playing catch-up and spending billions of dollars chasing after recreational drugs.

One recreational drug that recently came to my attention -- and which apparently is not criminalized everywhere in the United States, yet -- is salvia divinorum, which apparently produces a mild hallucinogenic effect. (Thanks to a listserv member for posting on salvia). The websites here and here track international and national efforts to criminalize the salvia plant. Jon Katz

The District of Columbia and the surrounding Beltway/Route 495 are a true center of the dreaded government-military-industrial complex. On an individual level, many participants in the G-M-I complex are wonderful people, with many doing good things for society. As a whole, though, the G-M-I complex is overgrown, is overly oppressive, and is overly beholden to power structures rather than to individuals.

What would happen if the G-M-I complex participants -- and everyone else -- had access to lawfully-recommended, lawfully-grown, and lawfully-obtained medical marijuana? That day seems soon upon us, in the District of Columbia.

Marijuana is great medicine. After eleven years of federal Congressional blockage of D.C.’s  referendum/ Initiative 59 to legalize medical marijuana (see the law here) -- with D.C. residents being victims of taxation without fully-voting Congressional representation -- the U.S. House of Representatives last week approved an appropriations bill that includes a provision clearing the way for D.C.'s medical marijuana law to take effect. The Washington Post’s editorial folks expect the Senate to approve the bill, as well. 

D.C.'s medical marijuana law is expansive, including the right to grow, buy and deliver marijuana exclusively for those with physicians' recommendations of marijuana's medical necessity for them. Now my clients who use marijuana medicinally have a local venue for using it legally, rather than having to pull up roots and transplant themselves to the far-flung places where medical marijuana is currently allowed.

This news is big. The wonderful possibilities are huge.

ADDENDUM: Thanks to an emailer who alerted me to the updated status of the D.C. medical marijuana law.

Many "recreational" drug users are not only using them for recreation, but to self-medicate. The following blues-fighting list from local psychologist Michael Radkowsky, though basic, is spot-on. As an aside, I met Michael through the listserv of the Horowitz-Margareten extended family; we are very distantly related.

Beat the Winter Blues

By Michael Radkowsky, Psy.D.

Licensed Psychologist

www.personalgrowthzone.com

As the weather gets colder and the days get shorter, many of us experience a downturn in our mood.  If this is happening to you, here are some suggestions for combating the blues:

1.  Spend some time in the sunshine every day.  (Check with your dermatologist about how to protect your skin from damaging rays.)

2.  Get regular aerobic exercise, which helps your brain combat depression and anxiety.

3.  Do something you like, often.  Make frequent plans with friends, or schedule ongoing volunteer activity, to combat isolation and improve mood.

4.  Eat well and include omega-3 fats in your diet (these fats help maintain positive mood).

5.  Start meditating.  Meditation is easy to learn and can help you more easily shift away from negative thoughts.

Michael Radkowsky, Psy.D.

Licensed Psychologist

www.personalgrowthzone.com

Image from public domain.

Thanks to anonymous commenter Mr. Mary Jane, who has this to say to Underdog readers about very strong pot, in response to my discussion on the striking difference between the smell of burnt and unburnt marijuana:

 Bill of Rights. (From the public domain.) 

If bong water possession were going to be made a felony anywhere in the United States, one would have expected that more likely to happen in the deep South or the bible belt, and not in Garrison Keillor country. Now that it is a felony in Keillor's backyard, I hope he lambasts it on his weekly radio show. Minnesota v. Peck, __ MN _ (Oct. 22, 2009). Jon Katz

ADDENDUM: Thanks to TalkLeft for posting on this story, including the link to the opinion.

Image from public domain.

In late 2006, I blogged about getting a thirty-plant Maryland marijuana felony prosecution reduced to a simple marijuana possession conviction, and a medical marijuana sentence of a $100 fine plus court costs, which ultimately was converted to a probation before judgment. 

The stakes were raised for me last year through this month in Virginia with a 43-plant indoor marijuana grow bust, carrying felony exposure of five-to-thirty years in prison, versus the five-year maximum exposure for my above-described marijuana felony case.

Virginia has no medical marijuana law, other than to enable acquittals for simple possession with a prescription, except that no doctor in the United States writes marijuana prescriptions, because prescribing marijuana risks a loss of one's DEA license to prescribe medicine. Instead, in California and other medical marijuana states, doctors give the green light for medicinal marijuana by a written recommendation, not by a prescription.

With my client's permission, I provide the details of our defense. My client used marijuana for very medicinal reasons, and growing his own protected both the quality and supply of his medicine. A Virginia marijuana felony conviction is not available where the marijuana is only for one's personal use. As with my Maryland thirty-plant case, for the Virginia case we retained the services of marijuana cultivation expert Chris Conrad -- author of Cannabis Yields and Dosage -- and medical marijuana expert David Bearman, M.D.

I arranged for Chris Conrad to examine the seized marijuana. The prosecutor and I joined, along with the lead investigating police officer. It is good for the prosecutor to be present to appreciate Conrad's authoritativeness and credibility. In this instance, the police had properly packaged, dried (lest the plants get moldy and rot) and saved the marijuana plants to enable identification between mature and immature plants, and female and male plants. Mature female plants provide medicinally beneficial marijuana bud, leaving one to discount male plants and immature plants from the personal medical marijuana use analysis. Chris Conrad determined that my client's indoor grow operation would yield 0.9 to 1.3 daily grams of marijuana, to provide one to two marijuana cigarettes, which is substantially less than is made available to federal medical marijuana recipients.

Before Chris Conrad examined the marijuana, it had already been tested and weighed by a Virginia government chemist, who weighed in the whole dried plants -- well beyond the buds -- at several pounds, despite Chris Conrad's measurement of just a little over a pound. I asked the chemist about the discrepancy, and she was satisfied that she had reached a correct weight. I mentioned the drastic discrepancy with Conrad's weight, and asked about any notes she may have taken about the weight to change her mind about her measurement. Subsequently, the chemist faxed me an amended certificate of analysis providing a weight very close to Chris Conrad's measurement, thus providing further credibility to Conrad's opinions on this grow operation.

We benefitted from the absence of indicia of any intent to sell marijuana. The police found no packaging material for selling, no buy or sell sheets, and no substantial amounts of cash. Moreover, the marijuana was grown for quality rather than yield; people growing for their own use grow for quality, and growers for sale often seek higher yield. Finally, medical marijuana expert David Bearman reviewed our client's health situation and confirmed the significant medicinal benefits that marijuana provided him.

All too often, prosecutors offer, as "expert" witnesses, police who testify at trial that a substantial quantity of seized drugs would have been intended for sale. When supported by the evidence, experts like Chris Conrad and David Bearman can blunt such testimony when marijuana is grown for personal medicinal use. However, prosecutors call their intent-to-distribute witnesses without spending a dime, whereas defendants must invest significant funds to hire beneficial counterexperts. Many defendants cannot afford such expert assistance, and one wonders how many indigent defendants' lawyers are provided the funds to obtain such experts. Of course, this high expense of getting a fair trial through hiring such experts is another reason that marijuana needs to be legalized, now. 

After many hours of preparation, a lengthy preliminary hearing and motions hearing, we ultimately negotiated a guilty plea reducing a felony marijuana manufacturing charge to misdemeanor possession with intent to distribute less than a half ounce of marijuana, with a short sentence to be served on weekends. This case ended happily, all things considered. Jon Katz.

Image from public domain.

Perhaps a prerequisite for taking the bench should be having firsthand experience smelling the tremendous difference between smoked/burnt marijuana and raw/unburnt marijuana, even if that means updating the laws to make this possible through the smelling and smoking experience. Until that time, too many judges are going to place too much unjustified reliance on police that they smelled unburnt marijuana -- even in minute quantities -- as a probable cause basis to conduct a search.

We continue seeing appellate opinions that barely -- if at all -- acknowledge the substantial difference between the smell of burnt and unburnt marijuana, and the greater inability to detect unburnt marijuana the smaller the quantity, the farther it is from one's nose, and the more that other odors interfere. For instance, on October 13, without addressing the burnt-unburnt marijuana smell issue, a 4-3 Maryland Court of Appeals majority ruled that a search incident to arrest of Antonio Belote based on smelling unburnt marijuana was no good because there was no arrest. Belote v. Maryland, __ Md. _ (Oct. 13, 2009).

As Belote said:

Any marijuana smell on Belote was of raw marijuana, which is eminently less stinky than smoked marijuana. Unless I misread Belote, the majority did not even address whether the marijuana was burnt/smoked or unburnt/raw (but certainly dried, because few people smoke undried marijuana). Early in his dissent, Judge Murphy clarified that Belote's marijuana was unburnt.

Each time appellate opinions fail to distinguish the eminently stronger stink of burnt marijuana from unburnt marijuana, the more police will feel emboldened to search first, find marijuana, and then manufacture a raw marijuana smell that never existed before the seizure of marijuana. More on this serious burnt-unburnt marijuana caselaw flaw is here. Jon Katz.