Successful Medical Necessity Defense in Texas Marijuana Case

Jacob Sullum | March 27, 2008

This week Tim Stevens, a 53-year-old Amarillo man who smokes marijuana to relieve the cyclical vomiting syndrome associated with HIV infection, used a necessity defense to win an acquittal on a possession charge. His attorney, Jeff Blackburn, says this appears to be the first time the defense, which argues that breaking the law was necessary to prevent a harm worse than the one the law is aimed at preventing, has been successful in a Texas marijuana case.

Stevens, whose vomiting has been so severe that he was hospitalized and received blood transfusions, was arrested last October after an anonymous tipster saw him sharing a joint on a friend's porch in Amarillo and called the police. He had about a twelfth of an ounce of marijuana, resulting in a Class B misdemeanor charge that carries a penalty of up to six months in jail and a $2,000 fine. He probably could have gotten off with a fine or a year's probation, Blackburn says, "but he didn't want to; he wanted to take a stand." The trial lasted about 10 hours on Tuesday, and the jury came back after 11 minutes with a "not guilty" verdict.

Blackburn says the expert testimony of  Steve Jenison, medical director of the Infectious Diseases Bureau in New Mexico's Department of Health, helped establish that marijuana is demonstrably effective at treating nausea and superior in some ways to the legal alternatives. (For one thing, unlike the synthetic THC capsule Marinol, it does not have to be swallowed and kept down, a feat for someone suffering from severe nausea.) Blackburn, who was not at all confident about the prospects for Stevens' unusual defense in a "very, very conservative area," also credits "a streak of independence" and a "distaste for government" that he says is common in West Texas. "I think these jurors like the idea that they get to make a decision about what the law means, about when it applies," he says, "and I don't think they were shy at all about deciding how valuable the law proscribing marijuana use really is."

Comments

|3.27.08 @ 12:48PM|#

Yay!

Taktix®|3.27.08 @ 12:49PM|#

Hooray!

I am going to celebrate by engaging in some interstate commerce, right after work...

Ska|3.27.08 @ 12:51PM|#

an anonymous tipster saw him sharing a joint on a friend's porch in Amarillo and called the police.

WTF......people just can't stay out of other people's shit.

|10.28.09 @ 9:51PM|#

No. That's why folks gotta keep gays from marrying or adopting, or keep decisions that should be between a woman and her doctor from being between a woman and her doctor. And inevitably these are the exact same hypocrites that wail and bemoan the effects of big government.
Keep hope alive, though. Those of us in the reality based community are gaining ground.

Taktix®|3.27.08 @ 12:54PM|#

In fact, what a lovely thing to happen just one day before my band, Tripping June, plays a Medical Marijuana benefit.

Details about time and location at our MySpace Page. (Not D.I.Y. websites are expensive!)

|3.27.08 @ 12:57PM|#

When the jury comes back in 11 minutes - and doesn't even stick around to get a free lunch - it means they're doing it to make a point.

Yay!

Nephilium|3.27.08 @ 12:59PM|#

Go go jury nullification!

Nephilium

Episiarch|3.27.08 @ 12:59PM|#

an anonymous tipster saw him sharing a joint on a friend's porch in Amarillo and called the police

Find this scumbag and beat the shit out of them.

"but he didn't want to; he wanted to take a stand."

Good for him--especially since it worked.

ktc2|3.27.08 @ 1:04PM|#

I know this is a State of Texas case.

Didn't the SCOTUS already determine that to not be a valid defense in federal cases? Our illustrious supreme justices decided that you have no right to save your own life if it means using a mostly harmless plant that the congress has banned. Or am I mistaken?

|3.27.08 @ 1:05PM|#

Let me add to the chorus of Yays.

Taktix®|3.27.08 @ 1:07PM|#

Details about time and location at our MySpace Page.

Oops, that should be THIS LINK.

|3.27.08 @ 1:08PM|#

Ska,
Yeah, that's pretty fucked up. Who feels the need to call the cops because their neighbor is sitting on his front porch passing a doobie. Of course I figure it's just as likely the cops made up the "we got a complaint" story.

What burns me is all the asshole drug warriors who've been saying "Pot has no legitimate medical use". For at least the past fifteen years that has been unpardonable. I'm even more pissed at the MSM that hasn't been bitchslapping every sadistic fuck that's been saying it.

|3.27.08 @ 1:08PM|#

ktc,

I remember the same thing. I also recall that those famous advocates of limited government, Scalia and Thomas, joined with the majority on the decision.

|3.27.08 @ 1:08PM|#

I'll say "yay" as well.

|3.27.08 @ 1:09PM|#

After reading the emo thread, I can't get the image of Unknown Hinson as the jury foreman out of my head.

Jozef|3.27.08 @ 1:09PM|#

This guy may have gotten off, but the jury who acquitted him may potentially get in trouble...

|3.27.08 @ 1:10PM|#

For those who would defenf the FDA, you do realize that 12 radomly selected people from West Texas are more amenable to medical research than the FDA.

|3.27.08 @ 1:12PM|#

"Who feels the need to call the cops because their neighbor is sitting on his front porch passing a doobie."

Anyone who buys the lies of the war on some drugs and doesn't like the thought of people feeling better. LEO's depend on this mindset.

|3.27.08 @ 1:16PM|#

Not to make this too off-topic, but since when does an anonymous tip qualify as probable cause? I agree the tipster should get a smack in the head, but I always thought anonymous tips alone were not suitable for a warrant, assuming there was one in this case.

Bingo|3.27.08 @ 1:17PM|#

Its bad because its illegel, the criminal was destroying there community. What sort of example is that for our children?

Taktix®|3.27.08 @ 1:18PM|#

Also, more info at Floridians Advocating Medical Marijuana Education meetup site.

|3.27.08 @ 1:28PM|#

Who feels the need to call the cops because their neighbor is sitting on his front porch passing a doobie

A Neighbor who isn't invited to share?

|3.27.08 @ 1:29PM|#

What sort of example is that for our children?

That what is legal and what is moral or right are not always the same thing? I think that's a pretty good lesson

|3.27.08 @ 1:35PM|#

since when does an anonymous tip qualify as probable cause?

What makes you think it was anonymous?

|3.27.08 @ 1:36PM|#

What makes you think it was anonymous?

The Blog Post?

Stevens, whose vomiting has been so severe that he was hospitalized and received blood transfusions, was arrested last October after an anonymous tipster saw him sharing a joint on a friend's porch in Amarillo and called the police.

Scooby|3.27.08 @ 1:45PM|#

I'm glad he got off. Too bad he couldn't use a "shouldn't be illegal in the first place" defense.

|3.27.08 @ 2:15PM|#

"Not to make this too off-topic, but since when does an anonymous tip qualify as probable cause?"

When the NKVD DEA lackeys are notified of a political crime drug law violation that is all the probable cause necessary for black sedans unmarked police vehicles to be dispatched to the location of the heinous, treasonous act of smoking a doobie.

The Bearded Hobbit|3.27.08 @ 2:15PM|#

What sort of example is that for our children?


.. an example of the jury system at work??

.. Hobbit

Dello|3.27.08 @ 2:22PM|#

It took the jury longer to walk down the hall and back than to vote not guilty. Yay!

The Wine Commonsewer|3.27.08 @ 2:24PM|#

I ain't smoked any dope since before Cesar was hatched (except that one time last year in Laguna Beach with, well, never you mind about that) but this story does my heart good.

Almost like listening to the kids belt out Proud to be an American or Jordin Sparks singing the National Anthem at the Superbowl this year.

Got dammit!

Lord Jubjub|3.27.08 @ 2:49PM|#

If this jury is anything like the one I was on, they probably sat back, talked a little, agreed to a poll to see where everyone stood and realized that all were ready to acquit without any discussion.

In my case, though, we weren't unanimous. It took us a few hours to hash out some details.

|3.27.08 @ 2:59PM|#

So it is possible to randomly assemble twelve sensible people.

|3.27.08 @ 3:24PM|#

This is most excellent news. Good to see a victory, no matter how minor, in this issue.

Sman|3.27.08 @ 4:43PM|#

Gimme Back My Dog,

"I remember the same thing. I also recall that those famous advocates of limited government, Scalia and Thomas, joined with the majority on the decision."

Thomas strongly dissented in the Raich case. But yes, Scalia showed his true colors, abandoned originalism and voted for unlimited federal government

|3.27.08 @ 4:47PM|#

Remember Peter McWilliams
http://www.petermcwilliams.org/articles/november_coalition_prisoner_of_the_drug_war.html

Gene Berkman|3.27.08 @ 5:34PM|#

This decision is good news for sure.

When I lived in Austin, Texas, in the late 1970s early 1980s, up to 4 ounces was a misdemeanor punishable by a fine of not more than $100. The Texas War on Drugs Committee headed by H Ross Perot pushed through many bad new laws, including enhancing punishment for marijuana possession.

The Wine Commonsewer|3.27.08 @ 6:48PM|#

Who feels the need to call the cops because their neighbor is sitting on his front porch passing a doobie

depends upon how loud the music is

Douglas Gray|3.27.08 @ 7:08PM|#

The message for "our children" is that once in a great while, compassion and common sense win out over busy bodies who have an unhealthy obsession with the letter of the law.

|3.27.08 @ 8:02PM|#

"Its bad because its illegal, the criminal was destroying there community. What sort of example is that for our children?"

Is sends a wonderful example. If you would think for just a minute instead of sheepally (I know it's not a real word) cowering to ridiculous laws, you'd understand. What if one of "our" children suffered from some painful disease that cannabis helped? Because of cases like these, they may be able to treat themselves without fear of ridicule and prosecution. In fact, you should be sharing this with your children right now, proclaiming it to be wonderful and liberating news.

|3.27.08 @ 10:46PM|#

The guy who posted that the jury could get into trouble because of jury nullification is missing the point. The defense was medical necessity overriding what otherwise would be illegal - perfectly within the law, and nothing to do with jury nullification.

As for the SCOTUS - I think - though I could be mistaken - that in Raich, they kicked it back saying that medical necessity was the only defense they could use - ie this one, so this is great news for some case to get taken all the way back to them.

Michael Vandeburg|3.27.08 @ 10:47PM|#

Prove me wrong if you can! Marijuana is LEGAL in America!

The law is on my side and I have proved it.

In my opinion marijuana is legal in America. The problem is that people do not know their rights and their lawyers don't know them either. That is why I wrote the book "Why Marijuana is Legal in America." Based upon one's permanent "rights and liabilities" created by U.S. Congress in the 1939 Statutes at Large that a person has the right to be an illegal user.

Do a search and read U.S.C. Title 26, Section 7851 (b)(1) of the current code. The current code still backs up what congress did in 1939. Copies are available on amazon if you want to check it out or go to www.outskirtspress.com /marijuana

To cut to the chase or short version is that Congress established the right to be an illegal user by paying a $100 transaction tax per ounce for an illegal user. All rights can still be claimed today. Claim it or lose it. The transaction tax was later abolished by the Supreme Court but you still have a right to be an illegal user, with no transaction tax. That's the facts and your rights in a nutshell.

You can email me at [e-mail]. I can't guarantee every email a reply.

Cannabis Hemp is the #1 biofuel on plantet earth. Industrial Hemp will change every industry in America and create millions of new jobs. Do some research and stop listening to this government babble and lawyer legalese or words of witchcraft to steal your mind and property. Think for a change!

Author Michael Vandeburg

Texas Lawyer|3.28.08 @ 1:34AM|#

The jurors aren't going to get in trouble. This wasn't a case of jury nullification. And even if it was no one would/could do anything about it.

Jury nullification is when the jury ignores the law or disagrees with the judge's interpretation of the law and refuses to apply it. The jury in the Stevens case followed the law precisely as it was meant to be followed.

The State claimed that Stevens possessed marijuana- which is against the law. Stevens claimed the defense of necessity to counteract their claim. The defense makes the charge irrelevant. Even if the jury found that Stevens had pot (which from the facts they surely did), the law of the defense of necessity says that they can excuse his breaking of the law because he did it because he had to. It's exactly like a self defense claim in a murder trial. Yes, the guy charged with murder killed the victim, but it was because the victim was running at him with a chain saw.

Yes, Stevens had pot, but he had to because he needed it to help prevent himself from puking to death.

In short, this case shows that six people (misdemeanor cases only get 6 jurors and not 12) can stand up for what's right and faithfully follow the law at the same time if they put their minds to it.

This verdict renews my faith in the system a little bit.

|3.28.08 @ 3:36AM|#

Man killed in drug raid was shot twice
By Thomasi McDonald , Staff Writer
RALEIGH - A man killed in a drug raid at his home in North Raleigh on Jan. 4 was struck twice by gunfire, according to an autopsy report made public this week.............

.........County ABC agents and members of the Wake Sheriff Department's Special Response Team were looking for a marijuana-growing operation when they raided Thornton's home at 5401 Alpine Drive. Officers found more than 40 marijuana plants in the home.........

Thornton previously was convicted in Texas of growing marijuana but fled the state in 2005 before he could be sent to federal prison. A lawyer who once represented him said he was a cancer patient who grew marijuana for medicinal purposes.

|3.28.08 @ 9:02AM|#

I suppose the question could be asked, What happened to the other VICTIM on the porch at the time?

Taktix®|3.28.08 @ 9:30AM|#

Thornton's home at 5401 Alpine Drive.

Oh man, if you Google the address, I used to smoke at the lake right by there when I was in High School.

|3.28.08 @ 9:43AM|#

I don't think one needs to tout jury nullification to acquit the defendent if one does not agree with the law, simply stating that one doesn't believe the prosecutors proved their case, or that you simply do not believe the prosecution's "evidence" is enough justification to acquit. Jurors like to put people in jail, it's a human nature blood lust trait, but a juror should pay attention to the case and look for signs of prosecutorial abuse, misrepresentations and lack of evidence.

Convicting people based on circumstantial evidence should never happen in America, but it happens all the time because people do not know their right to acquit regardless of the evidence, facts, law or judges instructions. Oh and there are those people who ride jury duty, enjoying the power to put people in jail regardless of the offence. The public's knowledge of jury nullification brings balance back to a corrupt judicial system.

One day, we will start going after criminal judges and prosecutors who abuse their authority in the name of law.

RED GREEN|3.28.08 @ 12:33PM|#

One small step for justice. Hope it continues throughout the country.Maybe the pendullum has started to swing back.Death to the DEAth!

Mad Max|3.29.08 @ 8:30PM|#

"He probably could have gotten off with a fine or a year's probation, Blackburn says, "but he didn't want to; he wanted to take a stand." The trial lasted about 10 hours on Tuesday, and the jury came back after 11 minutes with a 'not guilty' verdict."

To which all I can say is -

Psalm 67
Exurgat Deus.

2 Let God arise, and let his enemies be scattered: and let them that hate him flee from before his face. 3 As smoke vanisheth, so let them vanish away: as wax melteth before the fire, so let the wicked perish at the presence of God. 4 And let the just feast, and rejoice before God: and be delighted with gladness.

|3.29.08 @ 11:38PM|#

1) Drugs are for sick people.

2) This guy is sick. See 1).

There is something horrendous with the concept that the FDA will let a doctor prescribe RAT POISON and HEROIN to people, but he's not allowed to prescribe marijuana.

|3.31.08 @ 1:23AM|#

You can post to Tim's myspace page.

http://www.myspace.com/amarillotim

|10.28.09 @ 5:37PM|#

I'm going to go home and get vomitous right now.

delilah|10.29.09 @ 4:31PM|#

i love how they say "1/12th of an ounce" instead of the grams. its as if it makes it seem like he had way more that way. 1/12 of an ounce, 6 months for like 2 grams? jeeze.