Wednesday, September 9, 2009

CMMNJ letter to NJ A.G. on behalf of MS patient facing 20 years in prison for medical marijuana

Edward R. Hannaman, Esq.
7 Bradway Ave.
Ewing, New Jersey 08618

September 3, 2009

Hon. Anne Milgram
Attorney General
P.O. Box 080
Trenton, New Jersey 08625-0080

Re: John Wilson

Dear Attorney General Milgram:

I feel compelled to write to you on behalf of John Wilson, but also in the interests of justice, the conservation of State resources and to preserve the clarity of your conscience. As an attorney I believe this prosecution to be not only ill conceived under the circumstances and excessive in its object, but pursued in a manner that will lead to a grave injustice.

Following the death of a friend’s young son from cancer that was staved off solely by the use of marijuana as recommended by his oncologists, I accepted a position as a Board member of the Coalition for Medical Marijuana New Jersey. In that role, I have seen and spoken with many patients, family members, caregivers and medical professionals who attest to the palliative effects of marijuana on a host of serious illnesses. In many cases it has proven to be the only salvation for patients.

Others with expertise in this area have written to you previously documenting the grave nature of Mr. Wilson’s medical condition and supplying you with considerable evidence that marijuana has been found to be a palliative for it. It is a well -established and undeniable fact that marijuana is a benefit to those with multiple sclerosis. This was confirmed again by a recent independent study conducted by the National Multiple Sclerosis Society.

The facts in this matter are simple. John Wilson lacks medical insurance and suffers from multiple sclerosis, a terrible and incurable illness. Because other medications as well as bee sting therapy had failed him, he turned in desperation to the use of marijuana which he grew himself on his own property. For this act of self-preservation he has been charged with manufacturing and producing marijuana. He is being subjected to a prison sentence of twenty years. Sadly, the failure to properly apply current law or allow our system of justice to work as intended has forced John Wilson to face a far harsher and crueler punishment than anyone in his situation deserves.

Notably, there is no charge of nor is there any evidence that John Wilson supplied or intended to supply marijuana to anyone other than himself. The police did not find any caches of weapons, bundles of money, client lists or the quantities of marijuana expected and necessary if distribution were a motive. His condition and the proven medical efficacy of marijuana for it document the motive for growing was medical use. The very manner in which it was grown speaks to the naiveté of John Wilson. Anyone sophisticated would be expected to have grown the plants indoors or if outside at least camouflaged them or, typically not on one’s own property. Because most of the plants seized lacked buds, he may very well have been growing plants incapable of therapeutic yields.

As you are no doubt aware, there have been cases in this state in which those supplying cocaine and heroin to others have caused death and been subjected to less incarceration than John Wilson is facing. In Mercer County, at least one individual who grew far more plants than were grown here and who had no relevant medical condition was allowed to participate in pre-trial intervention. Mr. Wilson has no criminal record, was not supplying a substance to anyone but himself, did not seek it on the illegal market and, most significantly, harmed no one. As you are well aware, if John Wilson were to have killed another person to protect his own life, he would have a defense. How can it be that growing a plant to save his life is deserving of no less?

The statute under which John Wilson is charged (N.J.S.A. 2C:35-1.1 et seq.) counsels consideration of the seriousness and degree of dangerousness of the offense. It also looks to the harm suffered by the victim and states that it is aimed at aiding in the battle against drug distribution chains and those posing the greatest danger to society. It logically focuses on “the role of the actor in the overall drug distribution network” (1.1c). The entire statutory intent is clearly and understandably designed to deter “the most culpable and dangerous drug offenders” as well as affording special protection to children. NONE of these serious concerns are even remotely applicable to John Wilson.

In defining the “manufacture” that Mr. Wilson is charged with, Section 2 of the statute states; “…except that this term does not include the preparation or compounding of a controlled dangerous substance or controlled dangerous substance analog by an individual for his own use…” (Emphasis added). By the very definition of “manufacture” in the statute, it is wrong to charge John Wilson under N.J.S.A. 2C:35-4 with manufacturing!

Moreover, by its very terms, the statute places his use at issue, thereby making it a material matter required to be submitted to the court. Although mere “planting” is defined as “production”, the situation in John Wilson’s case is demonstrably outside of the clearly articulated legislative intent in enacting this law for society’s protection. Notably, Mr. Wilson would not be subject to the enhanced punishment for the mere number of plants he was growing. To impose the harshest punishment possible, the prosecutor claims that each day a plant grew constituted a separate production offense. In that way the actual plants were multiplied into a sufficient number to constitute a first -degree crime. Would that your prosecutors could demonstrate such creativity in going after those committing securities fraud, political corruption or serious offenses against the public peace.

In this case the prosecution has taken a law designed to punish those actually manufacturing drugs in large quantities for the illegal drug trade, ignored its purpose and tortured its language to imprison for decades a patient treating himself for multiple sclerosis. The prosecution proceeds heedless of the law’s expressed intent and with an inhumane disdain for the affect on a human being suffering an incurable disease. This cannot remotely be characterized as part of a war on drugs. In reality it is nothing less than a reprehensible persecution of a sick person using a medicine.

Justice demands that this case be considered not only on all of its facts but also within the context of the medical marijuana movement. At present, thirteen states in this country, representing over twenty five percent of the population of the United States, have legalized the use of marijuana for a number of conditions, including multiple sclerosis. As evidenced by the Bills introduced in other states, this is an ever-growing movement. On February 23 of this year, New Jersey’s Senate voted to approve S119 (appropriately termed the Compassionate Use Act), which allows patients to use marijuana for a number of conditions, including multiple sclerosis. It is for good reason that it is referred to as the “Compassionate Use” Act. In June, the Assembly Health Committee voted to release the companion Bill, A 804, for a full Assembly vote. Although it made some changes, it maintained the right of patients suffering from multiple sclerosis to use marijuana. You are well aware of these Bills since your own office pronounced the use of medical marijuana “workable”. Governor Corzine has stated openly that he would sign a Bill authorizing the use of medical marijuana.

What is easily most disturbing in light of the manner in which our system of justice is intended to function is that your prosecutor pushed to deny the jury the following facts: that John Wilson’s suffers from multiple sclerosis, that marijuana is recognized as legitimate treatment for that condition and that he was growing the marijuana solely for that purpose. These are all crucial facts, material to his individual use and all spurned by your prosecutor as irrelevant to a jury’s evaluation. Incredibly, the prosecutor characterized as “prejudicial” expert testimony from a physician about the medical benefits of marijuana use by John Wilson. In the absence of the relevant medical facts how is the jury to determine whether John Wilson’s situation and conduct were the focus of the legislature’s intent?

Our system, which is grounded on the presumption of innocence, protects the accused from prejudicial facts being used against him or from the jury misusing facts adverse to the defendant. Fairness demands that material facts be submitted to the jury. The prosecution’s aversion to the facts and characterization of them as prejudicial rests on nothing more than the fear that they undermine the prospects of an easy conviction. Convictions, however, are not the means by which we measure justice. We measure justice by whether there was a truly fair trial. Withholding medical marijuana use is a perversion of the evidence rule shielding the jury from adverse facts about the defendant that could serve to prejudice the jury against him. Thus, the court will instruct a jury exposed to the fact that the defendant committed a prior illegal, that it is not to assume thereby that he has likely done so again. In this case, considering the statutory language, the true prejudice lies in denying the jury access to all the facts, in effect forcing them to render a verdict based on a one-sided presentation. This trial begins with a rejection of a belief that constitutes the very heart of our jury system, a trust in the common citizen to do what is right.

Trial by a jury of ones’ peers is intended in a democratic society to stand as a bulwark against the tyranny of the state, unjust prosecutions and oppressive laws violative of the community’s conscience. Our justice system has evolved as a result of a tumultuous past replete with examples of such threats to freedom. As a result, western democracy extols the fact that the jury can stand up to any sovereign. It was for good reason that the denial of this sacred protection of individual liberty was specifically noted as a grievance against the King in our Declaration of Independence. Thus, our founding fathers recognized and the soldiers of our revolution fought specifically for, the fundamental and inviolate right for every citizen to be afforded the protection of a trial by jury in criminal cases.

We revere the principle that our government is founded upon the consent of the governed and it is reflected in the jury’s power to do justice. No less an authority than Justice Oliver Wendell Holmes observed that it is the province of the jury to keep the administration of the law in accordance with the wishes and feelings of the community. As he stated in the Horning case in 1920: “The jury has the power to bring in a verdict in the teeth of both the law and facts.” Justice Holmes certainly understood and advocated that the jury is ultimately the conscience of the community; not the legislator, not the prosecutor and not even the court. Thus it is a fundamental tenet of our law that a court in a criminal case, despite overwhelming and uncontroverted evidence of guilt, cannot direct a verdict of guilt contrary to a jury’s verdict of acquittal.

Our system allows the jury to decide whether the defendant is justly or unjustly accused. It is to the independence of the jury that we look to prevent the wrongful infliction of punishment through an opprobrious law and to stay the hand of a vengeful prosecutor. Its power stems from its role as the judicial manifestation of the right of a free people to self-determination. It is no less than the embodiment of our principle that ultimate power rests with “we the people.” The jury’s authority is as essential aspect of a government formed to be one that is “of the people.” It is not an overstatement to acknowledge that juries are the most critical element in a judicial system guaranteeing justice for every citizen. In a system where the people are sovereign both the language and application of a statute are subject to the moral scrutiny of the jury acting as the conscience of the community. Denying the jury essential knowledge serves to undermine the crucial role entrusted to it by our democracy.

A fair trial requires that the jury be kept free from improper influence, not that it be kept ignorant of the facts as is being done in the case of John Wilson. It is for good reason that we have the maxim: suppressio veri, expression falsi. One cannot expect a jury denied the facts to do true justice as our system intends. To have John Wilson convicted by a jury deprived of all relevant facts about his condition and marijuana use, is no more a challenge than convicting someone of overtime parking. Except, tragically, in this case the conviction sends a multiple sclerosis sufferer to prison for decades. It is pathetic that a prosecutor would be given any credit for a conviction under these circumstances no less laud it as a “victory”. It is certainly a loss for justice.

The public record documents the anger felt by jurors when they learn of the true facts only after the trial. This was the case in 2003 when a federal jury in California convicted Ed Rosenthal for growing marijuana. After rendering the verdict, jury members were informed that Mr. Rosenthal was not only growing it for medical patients, but that he was doing so pursuant to California law and in fact was doing so as an agent of the city of Oakland. Naturally the court and prosecution considered those inconvenient facts “prejudicial” to the jury’s impartiality.

Consider the infamous case of Richard Paey, a paraplegic sentenced to serve a twenty-five year prison sentence in Florida for “drug distribution” merely for his use of prescription drugs to alleviate his extreme and constant pain. In Florida, the law allows possession of over a certain quantity of even prescription drugs to be alleged to constitute distribution. The prosecutors knew this tormented individual never attempted to nor did he ever have the intention or means to sell. Still they made sure that the jury was unaware of its innate power to do justice for this pathetic victim. Those jurors were publicly and understandably upset with the law and the verdict they believed they had to deliver. Their upset led to a campaign to free him, culminating in a pardon from the Governor. Still, Mr. Paey suffered three excruciating years in prison. Florida taxpayers pointlessly absorbed the costs of not only another prisoner but the considerable costs of maintaining him on a morphine drip. Must we make every jury so cynical that its members are forced to assume they are being deprived of compelling facts benefiting the defendant in these types of cases and automatically acquit to avoid tragic injustice?

Prosecutions carried out without regard to concerns about society’s legitimate protection, legislative intent or a sense of compassion for patients deserving mercy become tools of tyranny. Moreover, such prosecutions violate the fundamental tenets of our democracy and do a disservice to the very people they professes to benefit. The case at hand is as good an example as one can find of the very sort of tyranny that our jury system was designed to thwart and will, if given a fair chance. Just as in the cases noted above, a prosecution “victory” here sending John Wilson to prison works a disgraceful injustice on the system as well as the individual. To maintain the integrity we expect of our system of justice, we need to give the jury a fair opportunity to do justice. Thus far we are doing no more than repeating the tragic mistakes of others.

While the denial of facts to this jury may result in a conviction, it is a shortsighted strategy that has the potential to work harm to society in the future. Jurors should not believe they will be compelled to act solely on instinct if they are to abort a severely misguided prosecution-such as the one in this case. Should they vote to convict, we can expect jurors to publicly express misgivings once they learn of the actual facts, and especially when they put the facts in context of the legalization movement. We can rest assured future jury members will be cognizant of the fact that they may also be denied compelling exculpatory evidence that would change their view of the charges.

The applicable law in this matter is not inherently defective, but it has been unconscionably distorted and misused to punish a multiple sclerosis patient hurting no one while simply treating himself. A jury knowing the law’s full intent and all the facts has good reason to refuse to convict John Wilson. It could justifiably conclude that treating one’s multiple sclerosis with a substance widely recognized by the medical community as a palliative is not a crime and the legislature did not intend it to be prosecuted as one. Moreover, such a conclusion would be in accord with the views of the Senate of this State, the Assembly Health Committee, the office of Attorney General and our Governor as well as the laws of thirteen other states. Is unbridled prosecutorial zealousness in pursuit of the pointless and unjust conviction of a multiple sclerosis patient to be allowed to trump these compelling contrary views-embodying as they do the actual will of the people?

As the legislature moves inexorably to end the cruel criminal stigma for suffering persons using marijuana as medicine, your Gangs/Organized Crime Unit unleashes its full wrath on exactly such a person. What, one must ask, fuels the rush to do this clear injustice of branding a patient as a criminal? Certainly not even the prosecutors can seriously believe it is to protect society. The actual and only victim here is John Wilson himself who was desperately growing marijuana to treat his own tormenting multiple sclerosis. He was NOT involved in the drug trade nor does he pose any other risk to society the legislature sought to prohibit.

In light of the recent legislative action aimed specifically at authorizing the use of medical marijuana by multiple sclerosis patients and the intent and wording of existing statutes, this prosecution is an affront to the legislative process, justice and humanity. One labors to imagine how this prosecution could be made any more absurd, illogical, inhumane and contrary to clear legislative intent.

A concern for justice notwithstanding, one would expect more humane treatment of John Wilson on purely practical grounds. How can this State, with deficits running into the billions of dollars- intentionally devote precious resources in an effort to imprison a multiple sclerosis patient? In addition to the considerable costs of housing an ordinary prisoner, the taxpayers will have to pay for constant, expensive medical treatment for John Wilson. This burden is compounded by the ultimate absurdity that this considerable expense results in absolutely no benefit whatsoever to public safety. With actions like this, it is no mystery why New Jersey serves as the brunt of jokes. This can be expected to generate more-and justly so.

Ms. Milgram, as the Attorney General and our chief prosecutor, you are the only government official who can rein in the over zealousness of this prosecution. As Justice Jackson observed while he was Attorney General of the United States: “The prosecutor has more control over life, liberty, and reputation that any other person in America. His discretion is tremendous.” If you will exercise your discretion in accordance with the true interests of justice and societal concerns, you can end this terribly misguided prosecution. If not, one legitimately may wonder why we need a human being as Attorney General. A prosecution computer would do as well. Input only facts favorable to the prosecution, set for maximum punishment and proceed to seek conviction regardless of the context, the consequences or humane concerns. It is for good reason we, as human beings, reject such mechanical justice. We expect our Attorney General to administer the laws fairly, acknowledging that the true interests of the state and society embrace our humanity. Thus it is that John Wilson’s case is exactly the type that cries out for your personal attention.

Neither true justice nor effective prosecution equate to seeking to convict every person of the highest degree crime possible, regardless of circumstances. Neither accepts that the law can be tortured to construe a meaning in violation of common sense and public safety. A just prosecution eliminates our need to rely for justice, as we do in this case, on the hope that one ordinary person called to jury duty and deprived of the facts will exhibit an instinct for the right and possess the considerable courage to act on it. Both justice and your duty exhort you, as our Attorney General, to exercise your prosecutorial discretion and save a harmless person afflicted with multiple sclerosis from prison.

Surely those in power realize that there are serious threats to public safety and welfare that must be addressed in New Jersey. Have we devoted adequate resources to combating the violent gangs openly roaming our cities and towns and literally shooting people in the streets? These are the criminals enriching themselves through the drug distribution chains and the ones at which the legislative proscriptions are aimed. The legislature took proper aim, yet your prosecutors manage to hit a multiple sclerosis patient! One would expect that actual drug gangs would be the focus for the Gangs/ Organized Crime Unit. Is it possible that it unable to discern the difference between gangs and patients?

Have we eradicated all political corruption? Have we begun indicting those responsible for the disappearance of hundreds of millions of dollars of taxpayer money from the School Board Construction Corporation? Have we held accountable all the illegal polluters that have propelled this state into the nation’s leadership in toxic superfund sites? Undoubtedly an opposing political candidate would want to continue. It is also likely that an opposing candidate may wish to suggest correcting the apparently inverted priorities of your Gangs/ Organized Crime unit, even if our resources were not strained.

The obvious and serious faults with this prosecution mandate that you step in to restore justice. If you will not, who else can we expect with influence in this administration to exhibit the rationality to accept that this prosecution is a waste of our resources and take the initiative to end it? Is there no one who possesses the ability to exercise simple good judgment, if not sound political instincts? A question our Governor himself may wish to ask of his Attorney General is: “What is the public good in rigorously prosecuting a multiple sclerosis patient at this juncture especially when he harmed no one and you have the discretion to recognize that his conduct is not violative of the statutory intent and does not merit any first degree charges?” A person suffering from multiple sclerosis who was merely trying to alleviate his own suffering through home -grown marijuana presents no danger to society. Thus, one can confidently assert that that no one in our State with an ounce of humanity or intelligence will breathe easier knowing that your office has worked to imprison John Wilson. Quite the opposite. Those with a sound moral compass will view this prosecution seeking to inflict greater punishment on a person like John Wilson as nothing less than a cruelly vengeful, pointless act unworthy of an enlightened people.

Finally, along with all the other considerations, we must consider what of you Ms. Milgram? Should this case proceed to conviction and a prison sentence under your authority, you can never assert with a clear conscience that you are a compassionate individual who prizes true justice. Your conscience will remind you of John Wilson. But you need not rely on your conscience alone. Thousands of individuals are already aware of John Wilson’s plight. Before this case is over, many hundreds of thousands of people nationwide will be aware of it. Many of them will be those suffering from conditions treatable with marijuana, as well as their family members, caregivers and the medical professionals treating them. Even more people will be outraged and even sickened by the injustice of this prosecution. Few will remember the judge’s name; even fewer will recall the prosecutor’s. Rest assured, however, virtually everyone who remembers this case will remember that you, Ms. Milgram, were the Attorney General with ultimate responsibility for this prosecution. Everyone will recall that you knew all the relevant and mitigating facts about John Wilson specifically that he was a suffering person and not a drug dealer or a danger to society. Moreover, you knew during the prosecution that the law was on the verge of being rewritten to protect him-and in fact you agreed with that protection. And yet, for no reason that an enlightened society would support, you allowed this terrible injustice to be inflicted on John Wilson although it was easily within your power and arguably within your duty, to stop it.

The fact that this travesty of justice is occurring within months of passage of the law allowing use of marijuana by persons exactly like John Wilson is a tragically ironic. The timing alone exacerbates both the injustice and the cruelty of this prosecution. If you, Ms. Milgram, will not act for John Wilson, or justice, or New Jersey, will you at least preserve your own conscience by insisting that your agency show simple compassion for a suffering individual who harmed no one? The current course ensures you will bring on yourself the enmity of all those patients who are and who will be using marijuana as approved medicine, as well as all those who believe in enlightened justice.

Perhaps even worse than a troubled conscience, you will consign yourself to the ranks of those who cast themselves forever on the wrong side of history; those who persecuted women because they feared witches, who denied rights to minorities believing them to be inferior or who, similarly lacking basic knowledge or compassion, imprisoned persons guilty of nothing but poverty or mental affliction. On rare occasions, to the credit of our higher and better nature, society evolves to achieve greater enlightenment and humanity. We are irrevocably approaching that point regarding the use of marijuana to ameliorate the ravages of many heartbreaking diseases. Eventually, knowledge will join compassion in eradicating the cruel injustices of a war on patients masquerading as a war on drugs. Sadly, some will continue to cloak themselves in the darkness of ignorance long after the light dawns for most others. Those persons wielding power who do so and cling to the ways of a discredited past, decrying the advancement, are justifiably vilified by the verdict of history. You can act to ensure that you will not share the stigma of that fate.

At this juncture, when the overwhelming and ever-growing scientific evidence of the clear benefits of marijuana to help the sick are being slowly but inexorably recognized by governments, you, Ms. Milgram, can choose to lead along the path of enlightenment and humane justice. You can act right now to protect a harmless multiple sclerosis patient from the horror of imprisonment for an act that should never have been made illegal but, which, in any event, will be legal within months. The reputations of those, like you, who are entrusted with great authority is never justly measured by the plaudits from others similarly favored with power and influence. You are assured of getting those regardless of what you do. The true measure of a person’s worth is whether they exercised their authority so as to deserve the respect of those who have the least, who suffer the most and who desperately need our help. John Wilson is such a person.

Just as in every war, someone is tragically the last to die; in the strife of every social advancement, someone is the last sacrificed as a martyr to past injustice. Let that not be John Wilson’s fate.

It is unfathomable that anyone with the power to stop a clear injustice would not act to do so at any time. It is incredibly tragic that it would be permitted at this juncture when the legislature has finally recognized the benefits of marijuana as a medicine to many patients and is bringing a long overdue measure of humanity to the law. If John Wilson is knowingly allowed to be the last casualty of the current inane and inhumane policy, it will be an indelible stain on justice, New Jersey, and your conscience.

Very truly yours,
Edward R. Hannaman, Esq.
Board Member, CMMNJ

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