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Lit_Match

Medical Marijuana Defense
11.30.06|review journal|Editorial

California -- Shaun Eric Wright was arrested in Huntington Beach, Calif., in 2001, carrying an electronic scale and more than a pound of marijuana in his truck. He was charged with possessing marijuana with intent to sell -- a charge that does not require actual proof of any attempt to sell, but under which juries are generally instructed to infer "intent" from the quantity present.

Back in 1996, however, California voters had OK'd marijuana for medical use.

Wright argued he used the marijuana on a doctor's recommendation, and a physician testified that he had recommended Wright use the marijuana to alleviate pain, abdominal problems and emotional stress. The doctor said Wright preferred to eat the marijuana rather than smoke it, which required him to use larger quantities -- a pound every two to three months.

The trial judge overruled that medical defense on the grounds the quantity was too large and Wright was transporting the plant material. But the court did allow some medical testimony. The trial jury convicted, but the appeals court reversed on grounds the judge should have instructed the jury that the medical defense was valid.

In a puzzling decision Monday, the California state Supreme Court ruled 6-1 that Wright was indeed entitled to have his jury instructed that the medical marijuana defense was valid -- but then refused to overturn his conviction, holding the judge's error was "harmless" because the jury had the option of convicting Wright of simple possession, a misdemeanor.

The ruling is puzzling because all juries have an irreversible right and power to acquit in defiance of the judge's instructions. Will California's high court thus hold that improper instructions are always "harmless," because juries should know they have the right to ignore all such instructions, following the great historical precedents of the juries that acquitted William Penn and John Peter Zenger?

In his dissent, Justice Marvin Baxter held the medical marijuana defense was inadmissible because, "The overwhelming evidence that defendant possessed the marijuana with the intent of selling it precluded a reasonable doubt as to its personal medical purpose. This evidence prominently included the electronic scale, the presence of which the defendant never explained."

So: Not only can Californians now be jailed on the conceit that prosecutors and jurors can read their minds and judge their "intent" -- it also appears they can now go to jail for possessing unexplained electronic scales.

The ruling doesn't do Mr. Wright much good. But it does "expand the defenses that can be used for medical marijuana," says Maureen J. Shanahan, the defense attorney in the case.

Thus, Monday's ruling is a step in the right direction ... however small.