Allison Margolin presents an argument for medical marijuana

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Allison Margolin presents a legal argument for medical marijuana

<span class="postbigbold">Innocent until proven guilty is not a mantra we hear mentioned often when it comes to marijuana. Its tough to get a fair hearing for a marijuana court case, as defence lawyers are all educated under the same system as the prosecution. But Harvard educated Allison Margolin looks beyond the US 'company line' to seek a level playing field for marijuana defendants like Charles Lynch.</span>



http://pr.cannazine.co.uk : Charles Lynch, a dispensary operator from Morro Bay, California, who was indicted and convicted in federal court for activities related to selling marijuana to medical patients, received a sentence last Thursday of a year and a day.

John Littrell, Lynch’s attorney, indicated that Lynch received what is known as the “safety valve.”

This is a federal statute that allows for a defendant who is otherwise subject to mandatory minimum sentences to have a reprieve and be sentenced outside of them. In order to qualify for the so-called ’safety valve,’ the defendant cannot be the “leader” of the organization. Littrell indicated the judge would issue a written order amidst objection by the U.S. Attorney to the safety valve in part on that basis.

He also indicated that Lynch was sentenced to 366 days in order to qualify for good time credits that would reduce Lynch’s sentence to around 10 months.

It is refreshing and fabulous that Judge Wu has liberally interpreted the safety valve to help reduce the prison exposure of a defendant who would have a medical defense in state court.

Although the attorneys were precluded from mentioning the medical defense during Lynch’s jury trial, it is clear that his medical defense, though not technically available, motivated the court to sentence the defendant far below the 10-year-mandatory minimum that would otherwise apply to his convictions.

I believe that defense attorneys should use this case as well as USA v. Landa, 281 F. Supp. 2d 1139 (2003), in which the district court contemplated compliance with state law as a basis for a downward departure in the guidelines (although that case lacked evidence of state law compliance), to argue that state law has a place in contemplating punishment when the state and federal law differ and the state gives more rights than the federal government.

I drafted a motion like this for Stephanie Landa on her appeal. For anyone interested, the argument is that the 10th Amendment is violated by the federal enforcement of marijuana’s Schedule I status in the medical states.

A few weeks ago, the New York Times Magazine published an article, “Obama’s Judicial Philosophy Analyzed,” by Charlie Savage, about what the author perceived to be Obama’s judicial philosophy and the one he believed Supreme Court justices appointed by Obama would follow.

The article suggested that Obama is interested in a court who articulates rights that many states (maybe a super-minority) have recognized, and pushes the other states along. That is why the recent legalization of medical marijuana in Rhode Island should be celebrated as a victory and replicated in more states.

Then we can use federal marijuana cases as a vehicle to go back to the U.S. Supreme Court and ask that the use of marijuana for medical purposes be recognized as a right that is held superior to the ban of the conduct by the Controlled Substances Act, the statute that regulates controlled substances and places marijuana in a category that has no medical use, Schedule I.

This article first appeared on CNN's AC360 with Anderson Cooper and is reproduced with the kind permission of Allison Margolin.

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