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The Vindication of Sgt. Northcutt

by FRED GARDNER

“There’s a lone soldier on the cross
smoke pourin’ out of a boxcar door
You didn’t know it, you didn’t think it could be done
In the final end he won the war
after losing every battle…”

–Bob Dylan

California’s Second Appellate Court will overturn Philip Northcutt’s conviction for marijuana cultivation in a written opinion due by August 3, according to attorney Benjamin Owens. That opinion might help define the necessary elements of a “collective cultivation” defense.

Northcutt, an Iraq vet, was still on active duty in the Marine Corps when he was busted for cultivation in Long Beach in March 2006.  He was tried, convicted, and imprisoned for 11 months, as reported here.

Oral arguments in People v. Northcutt were held May 19  in Los Angeles.  Owens, a young appeals specialist appointed by the court to represent Northcutt, says he was advised not to address the three-judge panel because a decision had already been made to find for his client (presumably on the basis of his written arguments).   It was  a whirlwind appearance and Owens cannot identify the judge who broke the welcome news.

Owens filed his first brief on Northcutt’s behalf in April 2008. He argued that the conviction should be overturned because of the judge’s “failure… to instruct the jury of the affirmative defense of collective cultivation.”

SB-420, enacted by the legislature in 2003 to help implement California’s voter-enacted medical marijuana law, created section 11362.775 of the Health and Safety Code, which states: “Qualified patients… and… designated primary caregivers… who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions.”

An appellate-court ruling in the case of People v. Urziceanu  established that  SB-420 had indeed “created a new affirmative defense to a charge of cultivation of marijuana.” Owens wrote that the court is obligated to instruct on a defense “when it is supported by substantial evidence and the defendant is relying on it or it is not inconsistent with his theory of the case.”

Owens cited several cases to define “substantial evidence” as “evidence sufficient to ‘deserve consideration by the jury.’” Northcutt testified that the grow was providing for at least 12 patients; William Eidelman, MD, testified that he authorized Northcutt and his girlfriend to exceed the quantity limits of SB-420; and Chris Conrad testified that the amount of marijuana found at the warehouse was a reasonable amount for four or five patients to grow for themselves.

It is up to the jury, not the judge, to weigh the credibility and significance of the evidence, Owens argued. “If the jury believed this evidence, it would have to have found that the defense of collective applied and acquitted appellant [Northcutt] of cultivation of marijuana.   Therefore, the court erred in not instructing the jury on the defense Health and Safety Code section 11362.775 provides.”

Owens argued that the error was  prejudicial as opposed to harmless –meaning it could have influenced the jury’s verdict. He wrote: “A defendant has a due process right to instruction on his theory of the case, violation of which demands application of the federal standard [of what constitutes prejudice]… Constitutional error is not harmless unless the prosecution can prove beyond a reasonable doubt that the error did not contribute to the verdict… Federal case law suggests that an even stricter test should be applied. Namely, failure to instruct on a defense that is supported by the evidence cannot be a harmless error…

“It is reasonably probable that appellant would have been acquitted had the jury been properly instructed. Indeed, the acquittal on the possession for sale charge indicates the jury likely believed the marijuana cultivation was for medical purposes, but that, under the flawed instructions, he simply had too much… Under the correct instructions, with the evidence adduced at trial, it is likely that this jury would have found the amount of marijuana permissible and acquitted him.”

If the appellate court panel bases its reversal of Northcutt’s conviction on Judge Pierce’s failure to instruct on “collective cultivation,” Owens thinks there is “a strong possibility” that  the decision will be published, i.e., become binding on Superior Courts statewide.  “There are no published cases on point there,” he observes.

Another Possible Basis for Reversal

Owens challenged Judge Pierce’s instructions to the jury on a separate basis in a supplemental brief filed in July ’08: “It was prejudicial error for the court to instruct the jury that it could convict appellant of cultivating marijuana solely because he had more than the amounts specified in the constitutionally invalid Health and Safety Code Section 11362.77.”

An appellate court had recently ruled, in a case called People v. Kelly, that the section of SB-420 imposing limits on the quantity of marijuana a patient can possess was unconstitutional (because the legislature cannot weaken a law passed by the voters, and Prop 215 did not limit allowable quantity).

Owens wrote, “Through the court’s instructions, the testimony of witnesses, and arguments of counsel, the jury was invited to convict appellant based on the legally incorrect theory that he grew more marijuana than allowed [under SB-420].”

The Kelly ruling is going to be reviewed by the state Supreme Court, and is no longer binding. If it turns out that the reversal of Phil Northcutt’s conviction was based on the allowable-quantity instruction, the decision will not be published.

Three little words

On Feb. 26, 2009, the Attorney General’s brief seeking to uphold Northcutt’s conviction was filed. The AG argued that the collective cultivation defense created by SB-420 only protects formally organized groups.

The AG cited Webster’s New World Dictionary to show that “collective” can denote a type of “communist farm.” And California’s Corporations Code and Food and Agriculture Code define “cooperative” as a specific type of agricultural nonprofit.

Owens then filed a reply brief arguing that the words “associate,” “collective,” and “cooperative”  are used in SB-420 in accordance with their “common sense, everyday, and non-technical meaning(s).”  The AG “makes a leap to conclude that because different forms of these words, which are not used in the statute, have technical and legalistic meanings, that must be the sense they convey in the statute.”

Owens pointed out that the AG’s own well-publicized “Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use,”  issued in August 2008, state  that “a collective is not a statutory entity.”  Having caught the AG in self-contradiction, the young appeals specialist waxed slightly sarcastic:

“These guidelines clearly indicate… that the term ‘collective’ imposes no requirement of a formal business organization. Now, however, because it sometimes means a type of organization used for farms in communist countries, [the AG claims that] the legislature intended that the collective cultivation defense only be available to those with ‘formalized relationships.’ This is a non sequitur.

“It is clear that the legislature did not mean that a collective cultivation defense would only be available to communist farms or formally incorporated agricultural non-profits. If the legislature intended to require a formal legal structure for those engaged in marijuana cultivation, it would have spelled it out in the statute.”

“Where did he go to medical school?”

Superior Court Judge James Pierce  imposed on Phil Northcutt as a term of probation that he “not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with a valid prescription.”  Northcutt subsequently requested that the court confirm his legal right to use medical marijuana while on probation. He testified that he was using it for back pain and PTSD. He submitted a letter from Dr. Eidelman stating that his symptoms were combat-related and included chronic back pain, insomnia, nightmares and severe anxiety.

In denying Northcutt’s request, Pierce commented, “he [Eidelman] is a biased individual. This guy, if I had an ingrown toenail, would give me marijuana because under the law he could do that.”

Pierce stated on the record that Northcutt should be “actively pursuing alternatives.” He said he would grant the request to use marijuana if a doctor he considered unbiased reported, “I’ve tried everything else. We’ve tried Vicodin. We’ve tried everything under the sun. Nothing works. And furthermore, he doesn’t have to smoke this. I can give this to him in a tablet, and here’s the tablet.”

Judge Pierce stated that he could respect a doctor who said, “you know, in some cases this will work, but we can do it by a tablet, and we can do it by other means. You don’t need to be in that lifestyle. And but [sic] they said in some cases it really does help.”

Pro-cannabis MDs who stand up for their patients in legal proceedings often encounter judges playing doctor.  The late Tod Mikuriya used to say of such judges, “I wonder ,where did he go to medical school?”

Judge Pierce’s comments in the Northcutt case reflect several common misunderstandings:

• Prop 215 only entitles patients with grave or terminal conditions to medicate with marijuana.

• Patients should have tried and failed to treat their medical problem with every conventional drug and procedure  before doctors can authorize marijuana use.

• Marijuana is available in pill form. Judges Pierce et al  assume that the herb has one active ingredient, THC, and that Marinol, which is synthetic THC, delivers it satisfactorily.

• Medical marijuana users have a “lifestyle” that they should be forced to abandon.

FRED GARDNER edits O’Shaughnessy’s, the journal of cannabis in clinical practice. Email fred@plebesite.com.

Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com

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