The Mirage Of A Federal Medical Marijuana Defense

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.


8 Responses

  1. On July 22, 2010 the Department of Veterans Affairs issued VHA DIRECTIVE 2010-035,, specifically allowing VA patients the right to use Medical Marijuana without fear of federal interference. “Fourteen states have enacted laws authorizing the use of medical marijuana,” the Directive observes. “Medical conditions associated with the use of medical marijuana include, but are not limited to: glaucoma, chemotherapy induced nausea, multiple sclerosis, epilepsy and chronic pain.”

    This is coming from the FEDERAL GOVERNMENT. Also, Marinol — a synthetic form of THC — is listed under Schedule III, while Cannabis — the natural source of THC — is listed as a Schedule I drug under the Controlled Substances Act.

    To be a Schedule I drug, a substance must meet 3 qualifications:
    1. There is a lack of accepted safety for use of the drug or other substance under medical supervision, AND
    2. The drug or other substance has no currently accepted medical use in treatment in the United States, AND
    3. The drug or other substance has a high potential for abuse.

    One part of the Federal Government — the VHA — has outright negated the opinion of the Justice Department that Cannabis is a schedule I drug. 14 states and the District of Columbia have also NEGATED the schedule I designation.

    If Cannabis was in fact a schedule I drug with no redeeming medical value, why would the US Department of Health and Human Services seek to PATENT it for commercial purposes? See for yourself:

    Federal policy on whether Cannabis is a schedule I drug is a MESS. You make it sound like the feds are all on the same page on whether Cannabis is in fact and practice Schedule I drug. They are not. The Federal Government has split personality syndrome when it comes to the values and dangers of "marijuana".

    1. That is a bunch of jibberish that has nothing to do with the issues in this trial. This is part of what's wrong with the movement. Pro-marijuana fanatics unwilling to deal with facts and the law instead making arguments with no basis in logic. That does not help the movement and in my opinion will hinder it.

  2. Excellent article Brian, the truth will always be the truth, and sometimes it's not as pretty as we want it to be, but again it is what it is. Additionally, I agree with you, understanding the law will allows us to educate ourselves on working harder to change our State and hopefully one day Federal law. Thank you for taking time to help us understand reality.

  3. You're an idiot! This is a groundbreaking case because a Federal jury will hear Prop 215 (California medical marijuana) testimony. By the way, you need to proof read your story before you publish it. Grammatical errors abound!

    1. No they won’t. All they will hear is him testifying that he though he was in compliance with Prop 215. No third party testimony will be allowed. Read the motion.

    2. Read this part of the motion to present a mistake of law. “This Court Should Allow Third Party Witnesses to Testify because the Jury needs to Know Mr. Smith Followed a Valid Law”

      You are just another medical marijuana nut job who is hurting the movement by not dealing with whats happening on the ground and instead screaming like a petulant child.

  4. It's very telling about problems with the movement when no advocates want to simply state "you're wrong and here is why' They want come here and scream and cry instead.

  5. Brian, as you well know I am probably the number one and best advocate in the State of Texas for medical marijuana, thank you for the accurate information that you provide us with. On a daily basis, I too deal with idiots like that person that replied to your article. You are correct this is precisly what is wrong with the medical marijuana movement. Your article was not about our passion or our beliefs, it was simply about a specific case and how the law can apply or be interpreted. Furthermore you are an attorney so I know you know what you are talking about; and I know first hand how much you have done for our Texas medical efforts and for our Texas people that need their medication. Thank you again and one thousand apologies on behalf of all of us that truly work hard and sacrifice for this most difficult cause, particularly when we tend to self distruct

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