One Of The Perplexed Makes A Request For Clarification (Weed Edition)


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52 Responses

  1. Ryan Noonan says:

    Nah, double jeopardy doesn’t apply to appeals. It only applies to separate trials at the same level.Report

    • Jaybird in reply to Ryan Noonan says:

      It seems vaguely improper that prosecutors can appeal in the same way that the defense can, for some reason.Report

      • Ryan Noonan in reply to Jaybird says:

        It would potentially lead to some really crazy patchwork laws if they couldn’t. With Washington and Colorado in different circuits, you could potentially have one of them say state law controls, and one of them say federal law controls, but with no ability for the Supreme Court to make sure the legal system is uniform across both districts.Report

      • KatherineMW in reply to Jaybird says:

        Well, if conviction is based on “guilty beyond a reasonable doubt”, appeals by the prosecution on the basis of the facts around guilty v. not guilty seem clearly inappropriate, since one court already doubted his guilt, which means reasonable doubt must exist.

        An appeal based on questions about what the law actually says – not “did he take this action?”, but “is this action illegal?” – may be different though.Report

  2. Burt Likko says:

    Ryan is correct. No double jeopardy implicated by an appeal.

    What’s more, Tenth Circuit seems substantively wrong unless I’m mistaken on the nature of the charges brought. Just because Δ has not violated Colorado law does not exonerate Δ from violating (at least some) Federal law. See the doctrine of dual sovereignty.Report

    • Jaybird in reply to Burt Likko says:

      Oh, bummer.

      Well, surely there is at least one conclusion they can reach that would be right and proper on its own merits that will get kicked up to the SCotUS… right?

      Or are there none?Report

      • Ryan Noonan in reply to Jaybird says:

        IANAL but I’m pretty sure Raich controls here, right?Report

        • Burt Likko in reply to Ryan Noonan says:

          Ayup. Jaybird’s hypothetical is very close to being on all four corners with Raich.Report

          • Jaybird in reply to Burt Likko says:

            Because, starting Thursday (or is it Friday?), we hit the point where the Colorado Constitution is changed.

            Soon thereafter, someone will sell something to someone.

            Soon thereafter that, someone will get busted.

            At which point it goes to the Feds and, quite honestly, I see the 9th finding for Warshington and the 10th finding for Colorado… and then I wonder “what next?”Report

            • Griff in reply to Jaybird says:

              There are no hard issues in the case you’re positing. An action can be legal under state law and illegal under federal law at the same time, or vice-versa. No federal district court in the country would acquit someone of a federal charge based on the fact that the conduct is not illegal under state law.Report

              • Jaybird in reply to Griff says:

                So the general consensus is that this makes it to the 9th/10th and the Federal District court will find for the Feds? Any appeal to the Supreme Court will be on behalf of the convicted, rather than the gummint?Report

              • Griff in reply to Jaybird says:

                I can’t even imagine what a potential issue could be for review by the Supreme Court in a federal distribution conviction. The only way I could see these things getting to the Court would be if the federal government sued the states to stop a tax/regulate scheme (or the state preemptively sued the feds over that same issue). And even then, probably not a hard case; Supremacy Clause means the feds win.Report

              • Jaybird in reply to Griff says:

                There are things that feel different, though.

                State Constitutional Amendment rather than Medicinal MJ law.

                The Feds initiating the case rather than Angel Raich initiating.

                Public opinion seems to have shifted.

                There were a number of justices sympathetic to Angel Raich (well, who wouldn’t be?) who regretted deciding the way they did back in 2005 (I know that Stephens came out and said that he was sorry and Scalia has received no end of crap from supporters on his decision).

                It *FEELS* different.Report

              • MikeSchilling in reply to Jaybird says:

                California’s MMJ law is also a state constitutional amendment.

                Dude, they found against a cancer patient, but they’re going to feel bad finding against some guy who wants to listen to Pink Floyd on his headphones?Report

              • Jaybird in reply to Jaybird says:

                Engaging in Hippie Punching is one thing.

                Punching an entrepreneur?

                I mean, I’ve no doubt that the Supreme Court will find in favor of the Feds. Don’t think that I’m thinking that we’ll end up overturning Wickard or anything.

                But I am thinking that the district courts will find *SOMETHING* that will allow them to find for the States. The 9th is the 9th, after all. Maybe the 10th has some resentment it’s been waiting to let out as well.Report

              • MikeSchilling in reply to Jaybird says:

                Honestly, I totally get it that there are people who are more sympathetic to entrepreneurs than to to cancer victims.Report

              • Griff in reply to Jaybird says:

                I think you’ve got it backwards — we’re much more likely to see a backtrack by SCOTUS than a district court thumbing its nose at the higher courts on what is frankly, under current law and precedent, a total non-question.Report

              • Jaybird in reply to Jaybird says:

                So it sounds like my hope rests in the 9th, rather than the 10th.Report

              • James Hanley in reply to Jaybird says:

                Honestly, I totally get it that there are people who are more sympathetic to entrepreneurs than to to cancer victims.

                Of course. The entrepreneurs are making a contribution to society, growing wealth and fulfilling needs by selling chemicals to others. Cancer victims are just leeches asking the rest of us to pay for their chemicals and radioisotopes.Report

              • Man Who Doesn't Understand Sarcasm in reply to Jaybird says:


              • MikeSchilling in reply to Jaybird says:

                You left out “creating jobs.”Report

          • Jaybird in reply to Burt Likko says:

            That case began with a lawsuit by Angel Raich against John Ashcroft, though.

            She wasn’t busted, she out and out *SUED* the AG.

            Does the Feds arresting someone change any dynamics at all?Report

              • Jaybird in reply to Mike Schilling says:

                He was convicted, and some of the jurors denounced their own verdict after they learned Rosenthal was acting as an agent of the City of Oakland, a fact that had been withheld from them during the trial.

                What is meant by “the truth, the whole truth, and nothing but the truth” if Rosenthal was not allowed to say “I was acting as an agent of the City of Oakland”?

                How is this not the judge and prosecutor colluding to withhold exculpatory evidence from the jury???

                But I say that every year…Report

              • MikeSchilling in reply to Jaybird says:

                How is this not the judge and prosecutor colluding to withhold exculpatory evidence from the jury???

                IANAL and this is pure speculation on my part. In fact, I’m posting it mostly so a real lawyer will get disgusted and say “You’re an idiot, here’s the real reason.” My guess is that while you and I might think it’s exculpatory that somebody’s acting as an agent of a duly constituted city government, fulfilling a humanitarian purpose that the citizens of the state (and quite likely many members of the jury) explicitly approved, to the court it was just a red herring that would distract from the application of the letter of the law. It’s like if he were accused of embezzling, it would be irrelevant that all the money went to charity.Report

            • Burt Likko in reply to Jaybird says:

              Oh, sure, there’s some paperwork differences down at the nuts-and-bolts level. But for our purposes here, there’s effectively no difference: it’s a legal question for the court to deal with.

              (“Deal with.” Not necessarily “answer,” since there are a variety of means by which a clever court might duck the issue if it chose to and could so gyrate without failing the exacting standard of judicial integrity known as the “giggle test.” I refer to techniques like standing, abstention, procedural arcana, and so on.)Report

              • Jaybird in reply to Burt Likko says:

                Because it seems to me that there are dynamics that exist in 2012 that did not in 2005 (let’s call one of them “a backlash to social conservativism”) and I wonder if the upcoming case, whatever it is, will be made hesitantly due to various tipping points happening around the country… I mean, KELO is still seen as a bad decision, rather than a decision that spurred legislation protecting citizens. Another Raich-esque case might result in a rescheduling of Marijuana, of course… but it’ll be seen as the legislature fixing something that the Supremes messed up.

                And I get the feeling that Roberts *HATES* the idea of popular narratives where the Supremes messed up.Report

          • Jaybird in reply to Burt Likko says:

            Gonzales v. Raich question:

            Why isn’t coitus Interstate Commerce?Report

      • Brandon Berg in reply to Jaybird says:

        Well, the conclusion that the commerce clause does not grant Congress the authority to regulate intrastate commerce would be right and proper on its own merits. However, it does violate (bullshit) precedent.Report

        • Right, the precedent is clearly horrible. But I’m not sure if the circuits are willing to just openly thumb their noses at a fairly clear rule. Whatever you think of stare decisis in general, the circuits are much more constrained in what they are professionally obligated to do.Report

  3. sidereal says:

    Asking for a friend?Report

    • Jaybird in reply to sidereal says:

      Nah. I have a job that has access to Federal Funds and, as such, must follow Federal Law including, of course, the references to “A Drug-Free Workplace”.

      I’m just trying to get myself prepared for the movie I’m about to watch.Report

      • sidereal in reply to Jaybird says:

        The Washington version of that film will be more interesting, I think. Not least because it’s focused on commercial distribution via a licensing scheme. Growing in your own home is still illegal. So you’re talking about Philip Morris or Costco whoever else wants to get on that train going up against the Federal government. I suspect it’ll start with Bob’s Ganja Emporium getting a license and the bigger brands will wait around to see what happens.Report

  4. Jaybird says:

    Mea Culpa. As it turns out, Colorado’s Constitutional Amendment does not go into effect until Governor Hickenlooper officially declares the results of the votes for Amendment 64.

    He is not required by Law/Constitution to do this until January 5th.Report