A lot (or not much at all depending or your point of view) is being made about a Federal judge in California who apparently is allowing a defendant in a marijuana trial to testify that he was a medical marijuana patient and he thought he was using medical marijuana in compliance with California state law. The use of medical marijuana is legal in California under Proposition 215. Marijuana legalization pundits are hailing this as precedent setting federal acceptance or a “technical” federal medical marijuana defense. I disagree.
Of particular interest was an article in the Huffington Post by marijuana legalization advocate Diane Diamond concerning this case. In the article she states:
“So why were the Smiths arrested and threatened with 10 years in prison? Because back then the U.S. Justice Department decided that the federal law against cultivating marijuana should trump the California law.
“The Justice Department did not “decide” that federal law trumps California law. It does not trump it. It stands separate and apart from California law unless there is a positive constitutional conflict or the Feds evidence their intent to occupy the field. Neither of which are the case. What’s more, in those cases it would be federal law that wins the day, not state law. Once again, confusion over the meaning of the Supremacy Clause. Proposition 215 is valid and Federal law does not trump it. On the flip-side, the Controlled Substance Act is valid and the Feds have every right to enforce it in California separate and apart from Prop 215 even for what may be argued purely local growing and possession pursuant to Gonzalez v. Raich. This case is not about any of that.
So what’s the big deal here? This appears to all boil down to whether Smith will be allowed to argue Mistake of Law as an affirmative defense to the jury. Mistake of law of a criminal statute is generally not a defense to negate intent unless Steele can show that he relied on legal authority. He apparently will argue that numerous authorities told him he was in compliance with Prop 215 and various other arguments in his Motion To Present A Mistake Of Law Defense.
Steele seems to be relying primarily on the fact that authorities in the know told him that he was in compliance with state law so all was ok. It appears however, that he will be prevented from calling witnesses to testify to what they told him either as to Prop 215 or more importantly in my mind, The Controlled Substance Act. I believe that, is the Mistake Of Law issue. The issue is not whether he believed he was in compliance with Prop 215 but whether he believed he was in compliance with The Controlled Substance Act. Simply, he would have to provide evidence that he was informed by legal authority that he was in compliance with the Controlled Substance Act or that the act did not apply to him. I do not think any argument that he thought state law trumped federal law gets him there. His subjective mistake of law as to Prop 215 trumping Federal law under a 10th Amendment theory is erroneous and flies in the face of of Gonzales v. Raich. The fact that he has a couple year of law school and came to an erroneous conclusion is not legal authority. The mere fact that he alone can testify that he thought he either was in compliance with federal law or that federal law did not apply to him will not get him a mistake of law jury instruction or any other instruction that will give the jury room to aquit.
Bottom line? Smith can testify that he thought he was in compliance with state law. Big deal. No one who told him he was will be testifying. Even if they did, I question whether that constitutes a mistake of law defense unless they told him federal law did not apply to him. While I am not an evidentiary expert, I also see hearsay issues in him testifying as to what he was told and by who. In the end, without a mistake of law instruction which I do not believe he will receive, the jury will have no choice but to convict. Steele Smith is going to prison. There is still no Federal Medical Marijuana Defense.