Wednesday, October 6, 2010

Green Thumbs Down on Dope Defense


In the summer of 2003, Defendant, whom the Court recognizes as a Master Gardner, began growing marijuanna to treat her son who was battling leukemia.  After the first son passed away in 2005, Defendant continued cultivating the crop to treat her younger son who was also experiencing significant health issues.

In 2007, Defendant was charged with knowingly and unlawfully cultivating marijuana in violation of 18 V.S.A. § 4230(a)(4).  She appealed the trial court’s denial of her motion for a jury instruction on necessity, asserting that she used the marijuana solely to treat her younger son’s terminal kidney failure. 

The trial court denied Defendant’s motion for a necessity instruction on the grounds that (1) she failed to establish a prima facie case on every element of necessity, and (2) a statute precluded the defense.  Defendant sought and was granted permission to file an interlocutory appeal.  The Vermont Supreme Court affirmed in a divided opinion,, holding that defendant’s evidence was insufficient for a reasonable juror to find that the third element of the necessity defense had been satisfied.  The Court did not address the remaining elements.  

Whether Defendant’s criminal act is justified by necessity ought, in almost all cases, to be a question of fact for the jury.  Defendant need only make a minimal, prima facie showing to be entitled to a necessity instruction.  The third, and dispositive element as far as the Court was concerned, is governed by Defendant’s reasonable belief that she had no opportunity to avoid the injury without doing the criminal act. 

The majority’s reasoning boils down to this:  Defendant could not have “reasonably believed that she had no opportunity to alleviate her son’s symptoms without committing the outlawed act . . . .”  The majority rested its conclusion in part on the fact that Vermont’s medical-marijuana law was passed in 2004, three years before the conduct at issue in this case, and yet Defendant had made no effort at all to comply with it and thereby avoid “committing the outlawed act” of growing marijuana outside its strictures.

This decision could mean further erosion of the necessity defense. Chief Justice Reiber’s dissent, in which Justice Johnson joins, is forceful on this point.  He notes that “[a]t the heart of the necessity defense is a difficult value judgment.”  That value judgment has traditionally been a question for the jury, which the dissent argues should be the case here where the Defendant has shown a compelling and sympathetic purpose for breaking the law.  Finally, the dissent notes the irony in the majority’s reasoning is that “a statute that aimed to decriminalize certain uses of medical marijuana has effectively criminalized defendant’s actions in this case.”

Jennifer McDonald

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