A Somerset County man won't be able to use multiple sclerosis as a defense for the 17 marijuana plants police found growing behind his house, a Superior Court judge ruled today.
A claim of personal use simply does not apply to the charges against Franklin Township resident John Ray Wilson, Judge Robert Reed said, following a hearing today in Somerville.
Wilson, 36, is accused of first-degree maintaining or operating a drug-production facility, second-degree manufacturing and third-degree drug possession. If convicted, he faces up to 20 years in prison.
A helicopter pilot spotted marijuana growing behind the house Wilson rented on Skillmans Lane last August and alerted State Police. Detectives found well-worn trails leading to the plants, some as tall as 6 feet. Authorities also found Miracle-Gro in a shed and psilocybin mushrooms and bags of processed marijuana in the dwelling, according to court papers.
Wilson said he uses marijuana to help alleviate the pain and other symptoms that have plagued him since 2002.
In March, Reed denied the defense's motion to dismiss the charges, saying there is no personal-use exemption for the cultivation of marijuana.
Deputy Attorney General Russell Curley filed a motion in April asking Reed to bar defense attorney James Wronko from asserting personal use as a defense and from referencing Wilson's medical condition at trial.
The criminal case is progressing as the state Legislature contemplates the New Jersey Compassionate Use Medical Marijuana Act. If it passes, New Jersey would become the 14th state to legalize medical marijuana.
During today's hearing, Reed cited the bill but said the establishment of medical marijuana for personal use as a state policy or as a defense to criminal liability is a matter for the Legislature to decide and not for a court to create.
In his brief, Curley echoed the argument he raised in March.
"A person who maintains or operates a controlled dangerous substance production facility for planting, propagating, cultivating, growing or harvesting marijuana is, in fact, guilty of maintaining or operating a controlled dangerous substance production facility, regardless of whether the marijuana is produced for distribution or personal use," he wrote.
During the hearing, Curley said allowing information about multiple sclerosis is merely a way to garner sympathy and could encourage jury nullification. Jurors might opt to acquit Wilson, believing he had a reason to break the law.
Wronko said the jury should be allowed to hear the circumstances surrounding the plants. If not, they "could readily speculate that he was operating an illegal commercial grow operation and must have done so for years to develop a market for the marijuana," he wrote in court papers.
Omitting Wilson's disease would keep him from addressing the issue of continuous use, one of the elements of operating a production facility. He would not be able to testify this was the first and only crop he has tried to grow, Wronko said.
Barring the medical-use argument, "is basically tying our hands unfairly," Wronko said in court.
Reed said the personal-use defense does not negate the elements of the production facility or manufacturing offenses. He also said introducing evidence of Wilson's disease "would create a powerful emotional argument in favor of jury nullification because it gives defendant a sympathetic reason for breaking the law."
Reed said he is mindful of the danger in becoming a "judicial legislator."
"When judges appropriate legislative pronouncements and executive prerogatives, they demean those branches of government, and diminish the stature of the courts," Reed wrote. "If medical marijuana use is to be recognized as an exemption to our criminal law, the legislative process must produce that result. This court will not do so."
A case such as Wilson's is precisely why the Legislature needs to pass a medical marijuana bill as soon as possible, said Rosanne Scotti, director of the Drug Policy Alliance of New Jersey, a major proponent of the bill. The fact that this case is coming up and the defendant faces such a harsh penalty "should light a fire under the Legislature to do something, because the ball really is in their court."
by Jennifer Golson
The Star Ledger
July 27, 2009
Judge won't let Franklin Township man cite medical need for marijuana