A Proper "Medical Marijuana" Defense

August 19, 2012
/ Author: Rick

I don’t often mention my cases online. I figure my clients deserve as much anonymity as I can give them, regardless of whether I win or lose. So you won’t find very many of my blog articles where I talk about the cases I’ve handled.

Today, though, I’m going to talk a little bit about one I won on Friday.

The reason I want to talk about it is because there have been a number of cases lately — including cases like this one (but not actually this one) — where my clients have tried to tell me how they wanted me to defend the case. For awhile, it was so bad that I actually inserted a clause into my contracts that says:

Certain decisions regarding the case are, by law, allocated to Client; however, decisions regarding pre-trial strategy; decisions regarding researching, writing, or filing of motions; and trial strategy are within the sole province of attorney.

In this post, I want to talk about why.

But a little bit about the case first.

This wasn’t the first case I’ve handled where someone was arrested for allegedly illegally possessing marijuana for sale. As in the other cases, my client was a medical marijuana patient. As in the other cases, he had a recommendation from his doctors, a so-called “medical marijuana card,” and an amount of medical marijuana which was not illegal for him to possess under the laws of the State of California.

That last point is an important one, even though it’s a little off-topic as to this post. The laws of the State of California have been deliberately written to prohibit the prosecution of patients whose only “crime” is possessing medicine that “law enforcement” does not want them to possess. But despite the best efforts of the People of the State of California — that is, the actual People; not the pretentious prosecutors who misappropriate that title — and the best efforts of the Legislature, “law enforcement” and District Attorneys in many areas of California continue to act as if our laws regarding marijuana have never changed. Patients who possess medicine of which such “law enforcement” and prosecutors disapprove (i.e., marijuana) are subject to arrest and prosecution despite the laws which discourage — and in some cases flat out forbid — such arrests and prosecutions.

In all the medical marijuana cases I’ve handled, I’ve won. One day, this will possibly (some would say “probably,” but I want to stay positive) change, but for now, on medical marijuana, I’m undefeated, unbeaten, “batting a thousand” — however you want to characterize it. With this record, why I haven’t gotten more medical marijuana cases is beyond me. But maybe people just don’t know since, as I mentioned, I don’t usually talk about my cases.

At any rate, I’m not here to complain that more medical marijuana patients should be hiring me. That’s up to them. I’m writing today because I want to point out to potential clients something about defending medical marijuana cases and about criminal defense in general.

And that’s this: as to medical marijuana cases, you don’t defend them any differently than you do other criminal cases. As to criminal defense in general, if you’ve hired a criminal defense attorney, you let them do their job. If you trusted us enough to hire us, trust us enough to quit trying to run your own defense. If you think your attorney isn’t doing his or her job somehow, replace them, but quit telling them how they should be handling the case. Unless you’ve gone to law school, and practiced criminal defense for awhile, you probably don’t know what you’re talking about anyway.

And quit listening to people in jail telling you how your lawyer should be doing this, or your lawyer should be doing that, or your lawyer doesn’t know what he’s doing because your lawyer isn’t doing what they think should be done, so you need to fire your lawyer, or you’re going down. Did you happen to notice those big legal brains telling you how to win your case are all telling you this from the inside of a jail?

To get back to my point about how to defend medical marijuana cases, there’s a funny thing about the medical marijuana cases I’ve won. Not one so far was won by relying on a medical marijuana defense. All were won by doing what criminal defense attorneys do: zealously and diligently defending clients by any legal and ethical means possible.

As one of my friends, who is also an attorney, put it on Facebook earlier today:

Kudos to my friend, attorney Rick Horowitz, again, for his awesome and righteous motion win Friday. One of the things I admire most about Rick is his ability to start at step 1, what I believe is the sign of an effective criminal attorney. Rick doesn’t jump to an argument with which he is more comfortable, but instead, begins fighting for his clients’ rights at the first stage of opportunity he sees as viable.

She later added:

I think a lot of people consider every criminal defense win as someone jumping through a “loophole,” rather than understanding the fact that law enforcement and prosecutors have rules, evidence and standards by which they MUST perform and operate. When they don’t, there often is not a Horowitz there to call them up on it. When there is, its nice to see it work the way it supposed to.

Yes, I’m using her words in my blog post because they make me look good. But I’m also posting them because they make the point I’m trying to make. To do a good job defending a medical marijuana case, you don’t necessarily look at it just as a medical marijuana case. It’s a criminal case first; a medical marijuana case, second.

A proper “medical marijuana” defense will include, but not be limited to, looking at the laws relating to the affirmative defense available to medical marijuana users. It will also involve looking at the basic rules of evidence, the rules relating to proper police procedure, the rules relating to what elements must be proved by the prosecution in order to obtain a conviction.

These are the things real lawyers — real good lawyers — go to law school to learn, and continue to develop and refine their knowledge about through continuing education and experience as they practice.

As I said, I haven’t won a single “medical marijuana” case yet based on California’s medical marijuana laws. The case I won Friday was won by showing that — even though the judge at the preliminary hearing felt there was enough evidence for my client to stand trial — the prosecution had no admissible evidence relating to the charge.

None. Nada. Zip.

The judge who decided the motion I wrote to set aside the holding order issued by the other judge told the prosecution,

If you’ve got something, tell me. Because I’ve gone through the [preliminary hearing] transcript with a fine-toothed comb, and I’m not seeing anything.

We never even got to my medical marijuana arguments.

In fact, while in this case I at least did have to talk about marijuana, in one medical marijuana case I handled I actually won without ever mentioning the word “marijuana” — medical or otherwise. In that case, I won a suppression motion prior to the preliminary hearing, because the officers who stopped my client and searched his car had no probable cause to do so. Ironically, my client had been angry at me all the way up until I won, because I wasn’t “doing a medical marijuana defense.” We had quite a few nasty arguments about it. He very nearly fired me because of it.

But I won. And he went home a free man. With no felony conviction.

Because a proper “medical marijuana” defense starts the same way as all other criminal defense cases: with a properly-trained criminal defense attorney applying all the tools at his disposal to put on a proper defense.

End of story.

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  1. Jennifer Taylor says:

    Hi, I would love to hire you as my criminal defense attorney but do you ever handle mendocino county cases….it is a medical marijuana case however I think u will find it should never make it that far as there are many legal outs hopefully….my cell is [number removed due to public nature of this comment]….

  2. Jennifer Taylor says:

    Hi, I would love to hire you as my criminal defense attorney but do you ever handle mendocino county cases….it is a medical marijuana case however I think u will find it should never make it that far as there are many legal outs hopefully….my cell is [number removed due to public nature of this comment]….

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