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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 17              Covering Cases Published in the Advance Sheets through April 23, 2001

Highlights of this Issue:

Supreme Court Decisions:

Permitting the Prosecution to Use "Saved" Peremptory Challenges is Structural Error:

Apprendi Watch:

Waiver of Counsel in Gun Misdemeanor Cases:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section now contains summaries of more than 200 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 48 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Oakland Cannabis Buyers Cooperative, No. 00-151 (U.S. Sup. Ct. 5/14/2001) (Justice Thomas)

In this case the Supreme Court held, by a vote of 8-to-0, that the Federal Controlled Substances Act (CSA) (21 U.S.C. 801 et seq.) does not allow a "medical necessity" defense for violations of the prohibitions against the manufacturing and distribution of marijuana. The narrow ruling dealt a setback - but not a deathblow - to voter approved initiatives in eight states that have approved the use of marijuana for seriously ill patients. The Courts ruling did not overturn those state initiatives; rather it was limited to the proposition that large-scale distributors of marijuana do not have a medical necessity defense, even if their distribution of marijuana is limited to the seriously ill who have doctors prescriptions.

The background for this decision was the adoption by California voters in 1996 of Proposition 215 - a voter approved initiative made it legal for seriously ill patients and their primary caregivers to possess and cultivate marijuana if the patients physician recommends such treatment. In response to the passage of Proposition 215, several individuals, including the defendants in this case, organized "medical cannabis dispensaries" to meet the needs of seriously ill patients - with the blessing of the city government and the police department. The Federal Government then sought to enjoin a number of the cannabis dispensaries and certain individuals associated with them from distributing marijuana to the medically ill.

Those lawsuits did not involve criminal prosecutions. The Government was well aware that it would have been difficult to find a jury willing to convict someone for making marijuana available to the seriously ill patients who had a physicians recommendation for the use of marijuana. In fact, The New York Times article on this decision noted that a jury in a recent state court prosecution "acquitted a man who offered a medical necessity defense to a charge of cultivating 850 marijuana plants."

The lawsuits also did not challenge the constitutionality of Proposition 215 as a whole. And they did not address whether all conduct exempt from prosecution under the state drug laws by Proposition 215 violates federal law. For example, as stated by the district court in the early stages of this lawsuit, "the Court is not deciding whether a seriously ill person who possesses marijuana for personal use upon a physician's recommendation is in violation of federal law. Rather, the sole issue here is whether defendants' conduct, which may be lawful under state law, may nevertheless violate federal law and can thus be enjoined." (U.S. v. Cannabis Cultivators Club, 5 F.Supp.2d 1086, 1091 (N.D.Cal. 1998) (Cannabis I)).

The district court decision in Cannabis I was written by District Judge Charles Breyer - the brother of Justice Stephen Breyer, who for that reason did not participate in the Supreme Courts ruling. Judge Breyer sided with the Federal Government, stating: "Finding that there is a strong likelihood that defendants' conduct violates the Controlled Substances Act, the Court concludes that the Supremacy Clause of the United States Constitution requires that the Court enjoin further violations of the Act."

The Ninth Circuit reversed, holding that the medical necessity defense appeared to be a good one; and it remanded the case back to the district court with instructions to consider "the criteria for a medical necessity exemption." (See, U.S. v. Oakland Cannabis Buyers Cooperative, 190 F.3d 1109 (9th Cir. 1999) (Cannabis II) (P&J, 8/30/99). The Supreme Court reversed the decision in Cannabis II.

Setting the tone for his decision, Justice Thomas stated (perhaps with a touch of overstatement) that the Supreme Court had granted certiorari in this case because it "raises significant questions as to the ability of the United States to enforce the Nations drug laws." Essentially the Court concluded that when Congress listed marijuana as a Schedule I drug in the CSA, it meant that marijuana "has no currently accepted medical use in treatment in the United States."

Justice Thomas also concluded that "it is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute. . . . We need not decide, however, whether necessity can ever be a defense when the federal statute does not expressly provide for it. In this case, to resolve the question presented, we need only recognize that a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act. The statute, to be sure, does not explicitly abrogate the defense. But its provisions leave no doubt that the defense is unavailable. . . . Under any conception of legal necessity, one principle is clear: The defense cannot succeed when the legislature itself has made a determination of values. . . . In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project)."

Three Justices (Stevens, Ginsburg and Souter) sharply criticized Justice Thomas for using "overbroad language" and for taking "unwarranted and unfortunate excursions that prevent [us] from joining [his] opinion." While they agreed that "a distributor of marijuana does not have a medical necessity defense" under the CSA, they disagreed with Justice Thomas suggestion that there could be no acceptable medical use of marijuana in any setting (other, of course, than for "Government-approved research projects").

Emphasizing that large-scale distribution of marijuana was the only issue before the Court, Justice Stevens pointedly stated: "Lest the Courts narrow holding be lost in its broad dicta, let me restate it here: [W]e hold that medical necessity is not a defense to manufacturing and distributing marijuana." (Emphasis in original). He continued "Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here."

United States v. Harbin, No. 99-3255 (7th Cir. 5/08/2001) (Judge Rovner)

This is an interesting decision in which the Court held that the district court (Judge Lozano) had violated the defendants Fifth Amendment rights to a fair trial and the intelligent exercise of their peremptory challenges by permitting the prosecution to use a peremptory challenge, "saved" from the jury selection process, to eliminate a juror on the sixth day of an eight day trial.

The three defendants in this case were charged in a multi-count indictment with conspiracy to distribute crack cocaine. They went to trial and, on the sixth day, the district court received a note from one of the jurors stating that he knew the mother of one of the Governments witnesses. With the approval of all attorneys, the court then questioned the juror and learned that the juror had not only worked with the witness mother, but had participated in a Narcotics Anonymous program with her.

The juror, however, contended that, despite those circumstances, he could remain impartial and faithfully discharge his duties as a juror. Based on those responses, Judge Lozano declined to dismiss the juror for cause. However, over the defendants objections, he did allow the prosecution to exercise one of its peremptory challenges "left over" from the jury selection to discharge the juror, based on "newly discovered information."

As a matter of interest, Judge Lozanos misuse of the peremptory challenge process was not limited to his grant of a special peremptory challenge to the prosecution towards the end of the trial. For example, after telling the parties that no more peremptory challenges would be permitted, he allowed the Government to remove two additional jurors with peremptory challenges. Although the defendants objected to the late dismissal of those jurors, the matter was not pursued on appeal. The Court, however, criticized Judge Lozano for "set[ting] forth rules of jury selection and then without notice disregard[ing] them, thus preventing the defendants from intelligently exercising their peremptory challenges and yielding exclusive control over the jury to the prosecution at the trial stage." The Courts blunt assessment of Judge Lozanos actions was that the jury selection process in this case was not only "exceptionally confused," it also was "completely subverted with the extension of peremptory challenges to the trial itself."

The defendants were ultimately convicted of a number of conspiracy and drug possession counts. On their direct appeal, they argued that the jury selection process was constitutionally deficient and, as a result, they were denied the right to a fair and impartial trial. While the Government refused to concede that any error had occurred, its principal argument that any error that had occurred was harmless, within the meaning of Fed.R.Crim.P. 52(a), which instructs that errors "which do[ ] not affect substantial rights shall be disregarded."

In a decision noteworthy for its insightful and exceptionally clear analysis of what types of errors impact a defendants "substantial rights", Judge Rovner concluded that the error in this case affected "the fundamental fairness of the trial," and therefore required "automatic reversal" of the convictions that had been obtained.

She started by stressing that, even though they are "not constitutionally required, the Supreme Court has long recognized that the right of peremptory challenges is one of the most important of the rights secured to the accused . . . [because they] weed out the extremes of partiality on both sides." Thus, "a system of peremptory challenges skewed toward the prosecution would impair the right to impartial and a fair trial." In fact, she continued, "the ability to remove jurors with peremptory challenges mid-trial is a significant weapon. At that time, the parties have had the opportunity to observe the demeanor of the jurors and to employ that knowledge in their decision. It would fundamentally alter the peremptory challenge to allow its use in this manner."

While she acknowledged that the case law is still evolving in terms of defining what types of errors impact "substantial rights," and that "the subset of errors that mandate automatic reversal is a small one," Judge Rovner noted that the Supreme Court had clarified, in Neder v. U.S., 527 U.S. 1 (1999), that Rule 52(a) "requires reversal of errors that are not harmless beyond a reasonable doubt or that fall within that class of fundamental constitutional rights that require automatic reversal without regard to harmlessness."

She then concluded that the mid-trial use of a peremptory challenge that was permitted in this case was "unprecedented" and one which "crippled the device of peremptory challenges." That error affected "the fundamental fairness of the trial" because "one party was allowed exclusive, discretionary control over the composition of the jury mid trial . . . . [Such an] error is a structural defect affecting the framework within which the trial proceeds. . . . We cannot tolerate a system in which control over the jury rests in the exclusive domain of one party during a particular stage of the proceedings."

News from the Internet

Legal Dockets Online is a developing into one of the leading sources of extensive court case information organized by state, with federal, state, and local jurisdictions consolidated onto a single user friendly page. The site, accessible at, offers listings of free and inexpensive Web sites where one can access federal and state court case docket sheets, basic case information and judicial decisions. The site also contains an up-to-date listing of the growing number of commercial vendors that provide electronic case filing and retrieval resources.

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