Truth in Trials


Reps. Sam Farr (D-Calif.) and Dana Rohrabacher (R-Calif.) are introducing the Truth in Trials Act, a bill to "end the federal government's gag on medical marijuana defendants in court." According to the Marijuana Policy Project, "By providing an affirmative defense to federal marijuana charges, this bill would not only ensure that defendants could introduce evidence about the medical aspect of their marijuana-related activity, but would also keep them from being sent to federal prison if it is determined that they were acting in compliance with state medical marijuana laws."

The hope is to avoid any reruns of the Ed Rosenthal case, in which a man who was growing medicinal weed with the cooperation of local authorities was nonetheless brought up on federal charges. In the trial that followed, the judge refused to allow any testimony about why and under whose auspices Rosenthal was producing the pot. In an unusual move, several members of the jury subsequently apologized for finding him guilty and requested a new trial.

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  1. It would be nice for med mj defendants to actually be able to use the medical status of mj in their states as a positive defense in federal court. On the other hand, this is putting a band-aid over the gaping wound that is the Controlled Substances Act — helping to further legitimize the logically nonsensical.

    The Act does two contra-factual things, just because Congress apparently can:

    1. Arbitrarily “finds” and declares no medical value for any Schedule I substance, including marijuana.

    2. Arbitrarily defines traffic in drugs (especially Schedule I substances) as interstate commerce (or, more properly, as commerce that is subject to federal regulation under the interstate commerce clause), INCLUDING traffic that occurs completely within a state.

    Congress ought to be ashamed of those two aspects of the law right there, and seek to amend them out of existence, rather than putting bandaids on the problem as Farr and Rohrabacher propose to do. Congress ought to do the right thing and repeal the Controlled Substances Act, but if they will not (and after 30 years, what is the hope?) then the constitutionality of the arbitrary extension of the interstate commerce power to include obviously intrastate activities, not to mention the power to prohibit under the Interstate Commerce Clause, ought to be challenged in court. Furthermore, as the Constitiution does not give the federal government specific power over food and drugs, it seems like challenges based on 9th and 10th Amendment grounds could bear fruit.

    It needs to be done. When will it happen, and who will do it? With all due respect to the good intentions of Congressmen Farr and Rohrabacher, they don’t appear to be the guys with the brains or stones to do the right thing, only the “not so wrong as the other guys” thing. Controlled Substances Act delenda est.

  2. The constitution has been shredded by the war on drugs. I don’t see any hope of stitching it back together, and have grown skeptical of progress towards ending prohibition.

    Larger issues of constitutionality and federalism aside, it astonishes me how little contempt is generated by the drug war’s escalating outrages. Why for instance, aren’t more people disgusted that someone charged with murder has the fundamental right to testify as to his motivations and mitigating circumstances in his own defense, but no such rights to are permitted to those charged with growing pot.

  3. Like it or not, the authority of the federal government to regulate things has been established for generations, and isn’t going away. The drug war is going to have to be defeated the hard way – by convincing a majority of the public that we are right, and the prohibitionists wrong, on a policy level. Bogging the debate down in hopeless constitutional hobby horses is only going to prolong the agony.

  4. Warren:

    Because homocide is occasionally justified, but drug use is ALWAYS bad.

    If you’d come up through the DARE program, you’d understand that.

  5. I was going to read the last issue of Reason Magazine (printed edition) but I think my old lady used it to roll doobies. Oh well.

  6. Joe suggests the citing of the constitution with reference to the War on Drugs is riding a hobby horse. I suggest to Joe that he is not preserving, protecting, and defending the constitution when he says that; rather, he is contributing to the enfeeblement of the constitution. The people need to read and understand the constitution, and actively hold government officials to their oaths. The constitution won’t enforce itself. It was written in simple language so the average guy could make sense of it and decide for himself whether the government was behaving or not.

    When you talk of hobby horses, you imply that it isn’t worth someone’s time to consider constitutional arguments, much less to make them in the first place. If it isn’t worthwhile to make a constitutional argument, then it isn’t really worthwhile to study the constitution, is it? If people don’t study the constitution, they’ll never know what the limits of their government were supposed to be, so they won’t be able to spank their representatives, senators, and other elected officials for stepping over a line they can’t see; nothing will be true, everything will be permitted — as long as you are a government official, anyway.

    Either this government is based on constitutional rule of law — not the momentary whims of ruling officials or the passions of an inflamed mob — or it is not. If not, this country does not desesrve to be called the US, and I don’t want to hear ANY appeal to principle, except the obvious controlling principle of might makes right. But beware: the might you tolerate or even cheer today will be turned against you tomorrow. Tobacco smokers are learning that the hard way — perhaps they now have a bit more sympathy for the pot smokers that many of them used to scorn.

    Let me suggest that anyone who really cares about this country needs to take a good look at the constitution and understand the merits of constitutional arguments, especially those against the drug war. It is obvious that the elected officials do not take seriously their charge to preserve, protect, and defend the constitution. Who is left to do the job? The people. We have to step up. They did it in Russia. We can do it in America. Instead of dissolving the Soviet Union, however, we can make our own union stronger, and get back to the notion of liberty that inspired it. If it’s worth fighting for, isn’t it worth voting for — not only to vote libertarian-minded people INTO office, but to vote authoritarians OUT?

  7. Warren:

    Regardless of the crime charged, no defendant is permitted to testify to facts which will not support a legally recognized defense. Prop 215 provides a medical exception to state laws prohibiting marijuana, but it does not (and cannot) affect the applicable federal law. That can only be fixed by (1) a bill like the one being discussed here, or (2) courts rediscovering the Tenth Amendment, as it was generally understood at the time of National Prohibition.

  8. one of the Joes: Ha ha. Yeah, you’d think that, wouldn’t you? Unfortunately that is just another casualty of the Drug War. Last time I was called up for jury duty, I got voir dire’d for a case involving a heroin sale: the judge explicitly told us that we were to judge the case on the law and the facts alone, and that our feelings about the law were not to enter into it. When she asked us if we didn’t feel we could do this, I raised my hand and explained to her that I can’t set aside my moral feelings about the law itself; for my trouble, I got a snotty lecture about how we can disagree with the law without it being a moral issue, and got kicked out of the jury pool. (Along with a couple other people – one gentleman who didn’t feel he could trust a case where the police were the only witnesses for the prosecution, and one lady whose brother was a drug addict.) So, what’s the effect? Everyone who doesn’t think the law is a good idea gets kicked off the jury, and the jury is stacked with supporters.

  9. The jury’s job is to try the facts, not to rewrite the law. What is or isn’t legally relevant depends on what the law says, not on any issue that any given juror might care about. Thus, it’s up to the judge to decide which evidence is relevant, and only allow that evidence before the jury. Whether or not that evidence will ultimately be believed, of course, is up to the jury.

  10. Dana Rohrabacher? Isn’t that the guy who was hanging out with Osama back in the 80’s?

  11. But if the law says action xyz is legal in California, and the events in question took place entirely in California, and all parties involved resided in California, and no interstate commerce or foreign policy is involved…

    This is exactly what the founding fathers wanted to avoid, no?

  12. The federal law is either constitutional or unconstitutional. It’s not “constitutional except for the part that conflicts with applicable state law.” It just doesn’t work that way – unless, of course, the federal law itself is amended to provide for that.

  13. “no defendant is permitted to testify to facts which will not support a legally recognized defense”

    I’m not a lawyer or constitutional scholar, but isn’t/shouldn’t such a determination be up to the “jury of peers” and not a federal employee (judge acting as jury)? If the judge determines what a defendant can say on his own behalf, and tells the jury how it must decide based on the “facts”…why waste everyone’s time with a jury “trial”?

  14. James,

    But the politicians aren’t ignoring the Constitution; they’re interpreting it in a way you disagree with. Now you have an argument about “original intent” (what am I, a mind reader?) and “textualism” and other aspects of constitutional law which are mostly issues of style and preference, but which are primarily a sideshow.

    We have a hope of winning on the issues. We have no hope of reverting Constitutional jurisprudence to the mid 1800s, and I don’t want to see this important issues treated as a sidecar on some loopy crusade – especially since it is already so easy for the opposition to dismiss it as its own loopy crusade. I’m just being pragmatic here.

  15. Sir: I am not able to send a e-mail to Rep.Sam Farrs office. But can you please tell him to REMOVE THE UN Flag. We are living in the United States of America not in a third world UN country..

    -john fiorella

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