05 February 2003

My Web Site

Personally, I am deeply suspicious of "medical marijuana." Just like I'm suspicious of all the other uses for "hemp" which I see put forth by people whom I suspect just might, maybe, perhaps have a motive that just isn't as beneficent as they'd wish us to believe.

NEVERTHELESS, when someone is growing the stuff under color of State law, in that State, for medical use in the same State I have problems with the feds stepping in at all. And I have real problems when the judge orders serious, pertinent evidence be hidden from the jury.

All I can hope is that this leads to serious reform in the amount of stuff that judges and prosecutors are allowed to hide from juries. My personal gripe is the hiding of mandatory sentences from jurors. In Virginia trials are bifurcated and the potential sentence is hidden from the jurors during the guilt phase. Don't believe me? Come watch my jury trial next monday and see 15 mandatory years not be mentioned unless my client is found guilty.

Why are mandatory sentences hidden from jurors? Because often the evidence is flimsy enough that were they to understand the actual gravity of the punishment they might not convict. They would at least put more serious consideration into the matter. I've seen the jurors look absolutely shocked when a judge tells them they must impose a mandatory sentence of 5 years. They might actually render a verdict of not guilty - even in the face of overwhelming evidence - should they believe the punishment unjust. For instance, I had a trial wherein my client was charged as a felon in possession of a firearm. In Virginia that carries a mandatory 2 or 5 year sentence (depending on the severity of the prior felony). He had the pistol in his hand for a minute (without ammunition) while he was considering whether to purchase it. The prosecution was set to go forward on that and a blissfully unaware jury might have convicted him and been forced to sentence him to 5 years. Luckily, I got a rational prosecutor and we had the record checked proving my client didn't actually have a felony record.

The excuse given is always that a jury is the decider of fact, not the interpretor of the law. On one level I agree with this: the jury should not be deciding what a technical term (such as "aggravated malicious wounding") means - it should follow the judge's instruction as to that matter. On another level I think this is purely rationalization of a power grab. Assuming a fair jury pool, the juror is the last true and most perfect visage of pure democracy - it is a guardian against the government whether the government presents itself as unfair laws passed by the sovereign, unfair enforcement of the laws by the sovereign's prosecutors or unfair decisions made by the sovereign's judiciary. As such, given all the facts, it will sometimes do things which favor the people over the sovereign - anyone who has read anything on juries realizes that this is one of its traditional purposes.

And how does the sovereign react to this? It limits this institution as much as possible. Laws are passed which lead to greater punishment if convicted by a jury rather than a judge, thus limiting access to juries. Jurors are not told the kinds of punishments they will be required to impose (even should they be unjust) if they convict. Jurors are only selected from "trustworthy" people; it is amazing the high percentage of property holders who are in the local jury pools (and being a rentor myself I know there are a lot of renters in this area). It's a disgrace.

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