Update on Commonwealth v. Cusick and Stroup

Friday, May 16, 2008

My Mother’s Day 2008 was largely devoted to getting back to Boston where I had a 3:00pm meeting scheduled at my hotel, the Omni Parker House Hotel, with my co-defendant, Rick Cusick, my lead counsel, Professor Charles Nesson, Cusick’s attorney Steven Epstein, Nesson’s 3rd year law student intern Brendan Hickey, and our jury selection expert from Bangor, Maine, attorney Lynne Williams.

We met for over two hours, primarily discussing the anticipated testimony that Rick and I were scheduled to provide the following day, including what likely cross-examination we could expect from the prosecutors, and whether we were better advised to file a motion in limine to avoid any questions by the prosecutors about my misdemeanor marijuana arrest in Canada nearly 30 years ago, or simply be prepared to object should they attempt such a line of questioning. Massachusetts law is clear that any misdemeanor older than 5 years cannot be introduced or otherwise used in a current trial.

Photo by Brittany Somerset

It was a useful, necessary session that allowed us to discuss with the attorneys how we should present ourselves on the stand (serious minded and respectful of the court, but unapologetic about our marijuana smoking), what we could do that might subtly encourage a juror to support a not guilty, nullification verdict (mostly the closing argument of Professor Nesson), and what we should avoid (no excessive rhetoric; no preaching; and no jokes). Both Rick and I felt the time was well spent.

That evening attorney Lynne Williams joined Rick and me for a quiet dinner at the hotel. Lynne was initially trained as a psychologist and became a jury consultant prior to attending law school herself in mid-career. She is currently active with the Lawyers Guild and on the NORML Legal Committee, and had graciously volunteered to help with our case.

I was pleased to be in my room and ready for bed at an early hour. I knew the next day would be stressful and I wanted to be rested and ready to put on our best case.

Several of us met at our hotel at 8:30am on Monday and walked the few blocks to the Edward M. Brooke Municipal Courthouse. When we entered the building, most individuals are required to go through an electronic search device, similar to that which we have become accustomed at airports. But this time there was an alternate line for those with a bar card, and I was delighted to walk right through, show them my DC bar card, and never be searched in any manner, despite the fact that I was there as a criminal defendant! Some might see that as a breach in their security procedures, but I saw it as convenient and ironic.

Initially we had to report to Courtroom 10, the assignment courtroom to which all defendants were required to report. As the cases were called, one by one and generally alphabetically by the last name of the defendant, a determination was made by the presiding judge whether the parties were ready to proceed and all witnesses were present, and if so, the case was assigned out to a second courtroom where the actual hearing or trial would take place. Most were not ready to proceed when initially called, and were simply held over for a second reading once the court had gone through the first call of cases for the day.

When our case was initially called, the police officer, who would constitute the state’s only witness, had not yet arrived, so our case was passed over until the second reading. Eventually the case was recalled, the assignment judge, Judge Paul K. Leary, took a look at the case file, and said to the prosecutor, “Neither of these defendants has any prior criminal records. How much marijuana was involved?”

“Just one cigarette,” said the prosecutor.

“Then this is a waste of the court’s time, and I am inclined to just dismiss this case altogether if the defendants are willing to pay a processing fee,” said the judge.

Professor Charles Nesson, sensing that our legal challenge to Massachusetts' marijuana laws just might be disappearing in front of our eyes, then stood up and asked the court if he could be heard.

“Your honor, we would very much like to move forward to trial,” Nesson began. “These two defendants have traveled to Boston to challenge these charges, and they wish to proceed.”

“Well, then let’s just dismiss the charges and I’ll waive the fees,” offered the presiding judge.

“Your honor,” said Nesson, “My client, Keith Stroup, is the founder and legal counsel to NORML, the National Organization for the Reform of Marijuana Laws. His co-defendant, Richard Cusick, is the publisher of High Times Magazine. They have spent their entire lives fighting these laws, and they have a right to have these charges heard by a jury of their peers, and they very much wish to exercise this right.”

With that a light bulb seemed to go off in Judge Leary’s head, and, with a big smile on his face, he said, “I see. It’s time to try for jury nullification. Courtroom 19.”

And with that the pending dismissal was avoided, based on the objection of the defendants, not the prosecution. That must be somewhat unique in the annals of Massachusetts judicial history.

Professor Nesson’s aggressive, insistent argument had saved our ass, when the judge had wanted to dismiss the charges against us, and deprive us of the legal challenge to the laws. Or, as the story would subsequently unfold, perhaps it was the assignment judge who was trying to save our ass, and our commitment to challenging the laws that would put us in some jeopardy.

Regardless we all regrouped in courtroom 19, where Judge Raymond G. Dougan, Jr. was presiding. We were advised by one of our co-counsel, Matt Feinberg, that this judge was a friend of his, a former public defender, and one of the best draws we could hope for. And, in fact, once our case was called, Judge Duggan held a bench conference with the attorneys to advise them that he and Feinberg were friends, and to offer to recuse himself if the prosecutor wanted, and the case would be referred to a different judge. Surprisingly, the prosecutor, Patrick Devlin, indicated he felt the judge would be fair, and we moved forward.

Initially we asked the judge to rule on our pending motion to reconsider an earlier decision by a different judge, who refused to grant us a pretrial hearing for the purpose of bringing in expert witnesses to support our motion to declare the marijuana laws unconstitutional. Judge Dougan indicated he felt the affidavits we had managed to include in the record from a variety of experts would suffice to permit the appeals court to adequately review our constitutional arguments, and he denied our motion.

Then we began the jury selection, and it became clear that Judge Dougan did in fact understand what our challenge was about, and that he was going to try to give us a fair chance to make our case. As he began to address the first group of potential jurors, I was delighted to hear him refer to our arrest as having been at the Boston Freedom Rally, an event which he described as an annual political protest on Boston Common against the marijuana laws. That was totally accurate, but it also would have been legally accurate if he had said we were arrested for smoking a joint on the Boston Common, and avoided any rhetoric suggesting this might have had some legitimate political purpose. We knew at this point that the judge understood what we were about politically, and that he was likely sympathetic, even as he had an obligation to conduct a fair and even-handed trial.

The voir dire process, commonly known as jury selection, involved the court bringing in about 25 potential jurors in a group, and then asking a number of questions to them as a group. Did they have any law enforcement professionals in their immediate or extended family? Had they ever been arrested or convicted on a drug charge or had any of their immediate or extended family members? Did they have any other reason why they might not be able to render a fair and unbiased verdict based only on the evidence?

Those who answered affirmatively to those and a few similar questions were then called up to the bench individually, where the judge asked specific questions about whether they could honestly set aside any biases and render a fair verdict in a marijuana case, and gave the defense lawyers and prosecutors an opportunity to suggest additional questions designed to get and idea of whether they could be a fair juror in this case.

Unfortunately, out of the initial half a dozen individual jurors who were questioned, four of them were disqualified by the judge because they indicated they might not be willing to convict someone for possessing a little marijuana. One potential juror actually told the judge, “I don’t care if the defendants put a joint in their mouth while on the stand, I would never vote to convict them.”

While this was entertaining, it also cost us some of our potentially most friendly jurors. One could not help but wonder why they did not keep their partisan views a bit more private, and try to get on the jury where they could vote to acquit us both. But for most of these individuals it was their first time serving on a jury, and they were just trying to be honest and forthright. And their honesty caused them to be recused. As we were to learn later, those left on the jury apparently did not have such misgivings.

The court was recessed around 5:00pm on Monday, with everyone ordered to reassemble at the same courtroom at 9:00pm the following morning. The lawyers all went their separate ways, with Lynne Williams leaving to return to Bangor, Maine, where she had a court hearing scheduled the following morning.

Rick Cusick and I, along with a friend of his who had traveled to Boston on Sunday evening to provide some moral support, had an early dinner just down the street from the hotel, and I was once again in bed in my hotel by 10:00pm. This experience of being put to trial was a truly exhilarating one, but because of the possible loss of personal freedom at the end of the day, it was also emotionally very tiring. I was flat-out exhausted.

The following morning when we arrived at court the prosecutors (there were two this time) approached us with an unexpected offer: they proposed that we submit a summary of the facts to the court that we could all agree on; that we forgo a jury trial and try the case on the stipulated facts before the judge; and that we therefore move this case on to the appellate stage, where the issues we were wanting to raise would be resolved by the appeals court in a somewhat timely fashion.

I presume the prosecutors had become a bit worried by the statement made during voir dire by some of the potential jurors, and they wanted to remove the possibility of a jury nullification verdict. In other words, just as the possibility of jury nullification had become more important to our strategy, it had become a worry for the government. Of course they phrased their proposal in terms that tended to make it sound as if it would simply be less work for all parties, especially the lawyers, and would permit us to arrive at that ultimate appellate ruling that we all now apparently wanted.

But of course that was bullshit. They were concerned that a jury might just refuse to convict two old men on such a minor charge, and they wanted to find an excuse to take it out of the hands of the jury altogether.

My co-defendant and his two attorneys were inclined to accept their offer, but I immediately balked. We had spent months developing our legal strategy in the case, and I could not understand why we would want to drastically change that strategy at this late stage in the process. As far as we could determine, our efforts to select a jury that might refuse to convict was moving forward, and I felt absolutely no incentive to give up the possibility of winning an acquittal, despite our plans to take the stand and acknowledge that we were indeed smoking a joint that day on the Boston Common.

Professor Nesson initially said he too could accept the prosecutors’ offer for how we might proceed, as he does value the opportunity to get the appeals court to take a second look at the constitutional challenge, and their offer might expedite that appellate review process. However, once I indicated I was not prepared to give up my one opportunity to see if we could convince a jury to acquit, Nesson said it was totally my choice and he would be happy to proceed on the path to trial.

We offered the prosecutor the right to bifurcate the trial, to deal with my co-defendant byway of stipulated findings tried before the judge, while proceeding to trial with my charges. The prosecutors said either we both had to agree to the stipulated trial before a judge, or we would both go to trial before the jury. So on to trial it was.

We completed our jury selection process with eight jurors in the group, but instead of excusing two, to get us to the usual number of six jurors on a misdemeanor trial in Massachusetts, Mr. Nesson made a motion that we just go with all eight, and the government agreed, so the jury was sworn.

The government’s only witness was one of the Boston cops who had seen us smoking the joint on the Boston Common last September 15th, and his testimony was simple and straightforward. He saw us passing what he believed to be a marijuana cigarette; he arrested us; and then released us with a citation to appear in court at a later date. He testified that the sample had come back from the lab indicating it was indeed marijuana. Our attorneys asked him a couple of simple questions, bringing out that we had been cooperative and courteous when arrested and had otherwise not misbehaved. Then the government rested its case.

Rick Cusick was our first witness who was sworn in and testified that we had in fact shared a joint behind the NORML/High Times booth at the Boston Freedom Rally, where we had been arrested and released. By this time it was nearly noon, and the judge called a recess until 1:00pm.

The defense team, as we had done the previous day, walked across the street and gather for lunch at a popular courthouse hangout. By this time we were developing a friendly (or sort of friendly) relationship with the two prosecutors, and we invited them, along with the undercover nark, to join us for lunch. They were amused, but declined. It was mostly a gesture on our part to say, “Don’t take this personally. We can disagree on legal principals, and even on the wisdom of smoking marijuana, but that does not necessarily mean we have to be enemies. We are all lawyers, and we can relate in a professional manner.”

When we returned after lunch, it was my turn to testify. I confirmed Cusick’s testimony that we shared a joint behind the booth where we were subsequently arrested by the Boston policeman who earlier testified. I made a point to say the police were courteous to us and we had no complaint about how we were treated once arrested, and to make the point that they authorized us to reenter the Common so we could speak at the Boston Freedom Rally, as scheduled.

Based on our preparatory discussions, Nesson asked me questions that permitted me to say for the record there is nothing wrong with the responsible use of marijuana and that I have been a responsible smoker for 42 years; and that it is none of the government’s business what books I read, how I conduct myself in the privacy of the bedroom, or whether I smoke marijuana or drink alcohol when I relax in the evening.

Those points may not have any legal significance, but I felt it was important that the record indicate we were taking a principled stand, and that we were not denying either our use of marijuana or that there was anything wrong with that use. We were making a political statement when we smoked that joint at the Freedom Rally, and that should be protected First Amendment speech.

Photo by Brittany Somerset

The only cross-examination was an attempt by the prosecutor to see if I could identify the 1/3 joint that was in evidence. He handed me the plastic baggie and asked if this was the joint they had confiscated from us, and I honestly answered that there was no way I could possibly authenticate it, since it looked just like any other partially smoked joint. But I reiterated that I had previously testified that we had been sharing a joint when we were arrested, so that fact was not at issue.

With that the defense rested and both the government and the defense did their closing. Professor Nesson gave a brief but impassioned closing, saying that we did indeed smoke a joint on the Boston Common that day in September, that it was part of a political protest, but that the jury had to decide whether they felt this should be treated as a crime.

In other words, whether we committed the elements of the crime was the question the jury first had to determine (and, of course, both defendants had testified that we did share a joint), but equally as important was whether they felt it would create an injustice to convict us under these circumstances. It was an indirect way to argue for the jury to nullify the verdict, without using those forbidden words. The prosecutor objected five or six time to points that Nesson was making, but the judge noted his objection, and permitted Nesson to continue.

Then the prosecutor did his closing, arguing that the evidence was uncontradicted that the two defendants had shared a marijuana cigarette on the Boston Common, and pointing out that this was hardly a private setting, suggesting misleadingly that our theory of the defense was that our conduct was protected by the right to privacy. In fact we claimed our conduct was protected by the First Amendment, as political speech, but we made no claim to privacy for smoking on the Boston Common.

And the case was submitted to the jury around 3:45pm and they were excused to deliberate. Once they left the room, the judge indicated he would give them until 5:00pm to reach a verdict, and if they had not finished their work by then, he would excuse them for the night and they would resume their consideration the following morning.

It was at this point that all of the players – the defense attorneys, the prosecutors, and the defendants -- all sat around for a few minutes and shot the bull, as we used to say in the Midwest, just killing some time and trying to relax the tension a bit while we waited for the jury to return the verdict.

Photo by Brittany Somerset

We did not have to wait long. After less than 30 minutes, the jury sent the judge a message that they had reached a verdict, and court was called back into session. I leaned over to my co-defendant, Rick Cusick, and said I feared any verdict arrived at this quickly would not be good news for us. And I was right. The jury reported two unanimous guilty verdicts. The judge thanked the jury for their work and dismissed them.

The judge immediately said he would like to proceed directly into the sentencing phase, which I thought was probably a good indication of what was to come. Generally following a guilty verdict the judge imposes conditions of bond on the newly found guilty defendants and schedules a sentencing date some 30 or 60 or even 90 days in the future, permitting the probation department to interview the defendants and recommend an appropriate sentence. One fear that both Rick and I shared was that we might be subject to drug testing during that period, and might find ourselves facing jail, not for the underlying offense of smoking a joint on the Common, but for the repeated failure of a court ordered drug test.

But Judge Dougan avoided that possible point of conflict by moving directly into the sentencing phase, and first asking the government for their recommendation. Prosecutor Patrick Devlin, the younger of the two, whom we had just been visiting with a few minutes earlier, said they would recommend no jail, but rather 6 months probation, and a ban on our attending the upcoming Boston Freedom Rally in 2008. While they did not include the specifics, one presumes they would have demanded drug testing during the six months of probation.

Before we could even answer, the judge said he was giving the two defendants each a sentence of one day in jail, and credit for time served (the day we were initially arrested), and he declared the case over.

Just that quickly we were freed of any control from the Massachusetts court system and free to go on with our lives as if this has never occurred. While we were naturally disappointed that we had not convinced the jury to nullify and acquit us of the charges, we had nonetheless been spared the possibility of being punished for taking this matter to trial. The judge understood that this was indeed an intellectual exercise by two defendants with a life-long record of working to legalize marijuana, and he clearly respected our right to do that. After all else was said and done, that was the most important point. We had been convicted of smoking a joint at the Boston Freedom Rally, but with no real penalty beyond the trouble and expense of taking the matter to trial.

Documents Filed with the Court

Memo in Support of Requested Preliminary and Closing Jury Instructions
Requested Preliminary and Closing Jury Instructions
Motion for Reconsideration
Affidavit of Jeffrey Miron, Ph.D.
Supplemental Affidavit of Lester Grinspoon, MD
Affidavit of Professor Richard J. Bonnie
Motion to Dismiss
Affidavit of Lester Grinspoon, MD