Jaybird Is Unclear On The Concept


Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

Related Post Roulette

119 Responses

  1. Kazzy says:

    Dude… if we let every defendant insist what he was doing was legal…Report

  2. Damon says:

    It’s pretty clear: “Because the federal government considers marijuana illegal, federal courts generally don’t allow evidence that the drug may have been used for medical purposes, even when medical marijuana is legal under a state’s law, as it is in Washington.” Straight from the article.

    I think this falls under the catagory: The Feds don’t give a damn what your piss ant little state thinks is legal. This is FEDERAL biatches and it’s still illegal there.Report

    • Burt Likko in reply to Damon says:

      @damon is on the money here.

      I’d add that judges are not big fans of jury nullification. They want the law, as written, to be applied by the jury because, well, it’s the law. So if the jury is informed that marijuana is legal under Washington state law, that creates either a risk of confusion (“Wait, so is it legal or not?”) or a temptation to nullify (“Screw the Feds, my state says it’s legal so it’s legal, damnit!”) and therefore the jury would not be instructed about the state law.

      Now, you’d have to be daft to think that the jury doesn’t know that it’s legal according to state law but not legal according to Federal law. But the law actually presumes a degree of daftness on the part of the jury in this respect.Report

      • Glyph in reply to Burt Likko says:

        Burt, I totally get what you and Damon are saying, but I think JB is asking a slightly different question.

        Assuming that a defendant swears an oath to tell the whole truth (etc. etc.), how can the defendant then be enjoined from telling that truth as he sees it? Even if it’s irrelevant (from the govt.’s POV) to the matter at hand? As a defendant I should be allowed to use The Chewbacca Defense, if it’s how I see “the truth”. Even if it’s confusing to the jury. Even if it will 100% get me put away.

        IOW, I can see the state instructing the jury that my argument is *irrelevant* once I make it, just as if I argued I smoked pot in Amsterdam where it was legal, so I should be A-OK here; but they shouldn’t tell me I can’t even *make* the (again, irrelevant) argument, if it’s what I, the defendant, consider part of “the truth” I have been put under oath to tell.

        JB can correct me if I am not illuminating the hair he’s presumably trying to split here.Report

      • Burt Likko in reply to Burt Likko says:

        I’m sorry, @glyph , but this turns out not to be the case. Federal Rule of Evidence 403:

        The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

        What you’re talking about is exactly the reason Rule 403 exists. Now, you’re free to bring a Constitutional challenge to Rule 403 claiming that it restricts your freedom of speech or your freedom to petition for redress of grievances or your due process rights. But I’m here to tell you, that’s going to wind up feeling like a big waste of time by the time you’re done and it won’t change the result of your case.Report

      • Jaybird in reply to Burt Likko says:

        So the argument is that the judge decides what is and what is not part of “the Whole Truth and Nothing But The Truth”?Report

      • Glyph in reply to Burt Likko says:

        Well isn’t THAT conVENient…;-)

        I’m sure it’s a real timesaver. But frankly it seems kind of conceptually suspect to me too. Again, if the judge wants to instruct the jury that certain facts proffered in defense are not relevant under fed law, or the prosecutor wants to object each and every time the defense tries to bring them up, that’s all kosher.

        But stopping someone ahead of time from offering up their version of “the whole truth” as part of their defense (while also making them swear to tell all of it) seems…kinda crappy.Report

      • Burt Likko in reply to Burt Likko says:

        @jaybird that’s not the argument. Evidence excluded under Rule 403 is both true and relevant, and the judge makes no findings to the contrary. It’s that the evidence is likely to confuse or prejudice the jury from the dispute that the jury must resolve.

        For instance: Don the Defendant stands accused of illegally possessing, consuming, and distributing marijuana. The prosecution seeks to introduce evidence that Don the Defendant is a member of the Ku Klux Klan, because Don has sold the marijuana to his fellow Klansmen. The defense ought to bring a motion to exclude evidence of Don’s membership in the Klan (and that of his customers) because it’s unduly prejudicial. The jury will be more likely to convict Don of the crime because they recoil in disgust at the Ku Klux Klan. It’s true that Don is a Klansman. It’s relevant, because he knows his customers through their common association in the Klan. But it’s prejudicial well beyond the probative value because membership in the Klan is so deeply offensive to a large number of people.Report

      • Kolohe in reply to Burt Likko says:

        Actually, given your hypothetical, wouldn’t the US attorney then try to bring a RICO case against the Klan and kill 2 birds with one stone?Report

      • Don Zeko in reply to Burt Likko says:

        If they did, the motions in lim for the ensuing case would be really, really eventful.Report

      • Burt Likko in reply to Burt Likko says:

        No doubt! (Particularly eventful for the unfortunate birds.)Report

    • Jaybird in reply to Damon says:

      I can understand having the judge explicitly tell the jury “you are not allowed to take Washington’s laws into account when you make your ruling”.

      I cannot understand having the judge explicitly tell the defendant “you are not allowed to mention the following facts into the record after you have been put under oath.”Report

      • Chris in reply to Jaybird says:

        Testifying witnesses don’t generally just blurt out stuff, right? They have to be asked questions. Presumably the ruling means that if a lawyer asked a question such that the state law would be brought up as the answer, there’d be an objection, and if the witness just decided to answer a random question with “because it’s legal here under state law,” the judge would tell the jury to disregard that.Report

      • Burt Likko in reply to Jaybird says:

        Testifying witnesses don’t generally just blurt out stuff, right?

        No, not often. Just when they open their mouths.Report

      • Chris in reply to Jaybird says:

        Burt, heh… as soon as I typed that, I remembered that Donald Sterling deposition.Report

      • Glyph in reply to Jaybird says:

        @chris -but why does the ruling need to happen first? Can’t it just be handled via judge and prosecutor instructions/objections/cross-examinations? “This case was brought under Federal Law, and Federal Law supersedes State Law. Any references to State Law are irrelevant in these proceedings.” Done and done, no?

        We’ve let the defendant tell “the whole truth”, as he was sworn to do, and we’ve explained why his version of “the whole truth” is irrelevant in this case. Doesn’t that seem more fair?Report

      • Glyph in reply to Jaybird says:

        Are you referring to the Sterling “is this your handwriting” question? I just saw that this AM. Hilarious.Report

      • Mad Rocket Scientist in reply to Jaybird says:

        I thought defendants were allowed to put forth all sorts of crap as a defense, which to me seems rather the way it should be.Report

      • Chris in reply to Jaybird says:

        Glyph, I’m not a lawyer, but I assume the ruling is the result of the motion put forth by the prosecution, and wouldn’t have been something the judge would have done independently, and I assume the prosecution filed the motion because they wanted to do everything possible to keep the state law from getting mentioned, because they know it will hurt their case.Report

      • Don Zeko in reply to Jaybird says:

        They work it out beforehand because the jury is in the room, so if a witness blurts something out and then the other side objects, it might be too late for the jury to still give the case a fair hearing. So in Burt’s example with the KKK, if you put an investigator on the stand and he says that so and so was a KKK member, it doesn’t matter if the defense lawyer then objects and the judge instructs the jury to ignore that fact. They heard it, and they aren’t going to be able to forget it or give the guy a fair trial. So instead, the judge hears the lawyers’ arguments about the evidence, they get a ruling beforehand, and the prosecutor carefully instructs the witness on what he is not allowed to say in front of the jury.Report

    • Burt Likko in reply to Damon says:

      @kolohe maybe, but maybe Don the Defendant’s defense lawyer brought a motion to sever the claims and require different trials on the different counts, because the crimes in question are substantively very different from one another. Or… whatever. Not important here.

      The point is to illustrate how true, relevant evidence might nevertheless be excluded from a trial.Report

    • Mike Schilling in reply to Damon says:

      The Feds don’t give a damn what your piss ant little state thinks is legal.

      This is not entirely a bad thing, since it’s also true about things like slavery and not letting dark-skinned people vote. ( Less so about the latter than this time last year, of course.)Report

  3. Kolohe says:

    Because the only people that are into (the misnamed theory of) ‘State’s Rights’ are racists.Report

  4. Gaelen says:

    It’s jurisdictional. What’s legal in jurisdiction A is immaterial when jurisdiction B is taking you to court.Report

    • Jaybird in reply to Gaelen says:

      I understand the concept that just because it’s legal in Colorado doesn’t make it legal on the Federal Level.

      I don’t understand the judge’s instructions.Report

      • Gaelen in reply to Jaybird says:

        Sorry for misunderstanding the question. I would bet it’s a rule 403 issue:

        “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

        So testimony from the D on state law or his compliance with it, or documentary evidence of Washington state law, submitted to the jury, would confuse the issue and mislead the jury (in the judge’s opinion). Also, many states don’t let defense counsel make explicit jury nullification arguments–which this would get dangerously close to.Report

      • Jaybird in reply to Jaybird says:

        I’m sure that any relevant evidence that the defendant is likely to give on behalf of his own innocence is likely to confuse the issue.Report

      • Gaelen in reply to Jaybird says:

        I would add that I think the judge could ground his ruling in rule 401 (relevance)

        Evidence is relevant if:

        (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

        (b) the fact is of consequence in determining the action.

        It’s hard to see how a state’s law, or the D’s compliance with it, is relevant to any fact of consequence.Report

      • Don Zeko in reply to Jaybird says:

        I agree Gaelen, I don’t think you even need 403 to exclude this. Whether or not the activity is against state law has no tendency to make it more or less likely that they satisfied the elements of the federal offense.Report

      • Griff in reply to Jaybird says:

        Yep, this is my take as well. It’s a pure relevance issue; state law is completely irrelevant to the question of whether the prosecution has proved the elements of the Federal crime.Report

      • Burt Likko in reply to Jaybird says:

        If I were the prosecutor and I could be certain that the jury would bear in mind that pot is illegal under Federal law, then I’d want the defendant to talk all about how it’s legal under state law — because the defendant’s reliance on its legality under state law would make it more likely that the defendant was growing, using, and distributing the Devil Weed than it would otherwise.

        Thing is, I couldn’t be certain that the jurors wouldn’t take pity on a person caught in this contradiction of laws and start nullifying. That’s why I say it’s a 403 rather than a 401. But either way, even though the author of the article liked in the OP points out a lot of injustices in the case and highlights the activist’s decidedly slanted take on the ruling, this was the right call legally speaking.

        It’s the Federal law what needs changing.Report

      • Jaybird in reply to Jaybird says:

        Burt, how should the defendant answer the “Truth, Whole Truth, Nothing But The Truth” question?

        I mean, assuming he’s stupid enough to take the stand.Report

      • Burt Likko in reply to Jaybird says:

        He should answer questions with the most truthful of the following array of responses:

        a) Yes
        b) No
        c) I don’t know
        d) I don’t remember
        e) I don’t understand your question

        And no words other than these should pass from his lips in the presence of jurors, ever.Report

      • Major Zed in reply to Jaybird says:

        @burt-likko no words other than these
        Awesome! Add to that “Never, never, never talk to the police without your attorney present” and you have a basic civics lesson every citizen should know.Report

  5. j r says:

    I can understand how a judge could rule certain evidence inadmissible, but how does it work for testimony. The judge can bar the defendants from mentioning that they were growing with the intent for medical purposes? If that’s the case, hasn’t the judge effectively stopped them from offering any defense?Report

    • Don Zeko in reply to j r says:

      What they’re offering isn’t a legally cognizable defense. They’re asking for an opportunity to try to get jury nullification.Report

  6. bearing says:

    Can the judge, then, legally exclude *all* the evidence that a defendant has and leave him with no defense at all?Report

    • Griff in reply to bearing says:

      The judge can’t exclude the defendant’s defense. But legality under state law isn’t a defense to a Federal crime; that’s the whole point.Report

  7. zic says:


    I expect you’ll see some of these cases in CO, particularly as visitors to Rocky Mountain National Park and National Forests get arrested for bringing marijuana onto federal land.

    Eventually, something will get to the SC, and hopefully, it will be over states rights.

    But I like this “whole truth” approach, too. The law shouldn’t be able to trap you into leaving out your truth about this specific thing you’ve done.

    That said, the linked article does not provide enough information about the activities of the family in question, too. I would remain skeptical until I understood their arrest in context of why the feds decided to go back. There is always the possibility that there was some veering one step over the line.Report

  8. Mad Rocket Scientist says:

    Wait a sec, I thought Obama told his DOJ to back off of WA & CO pot? Did this guy not get the memo?Report

    • zic in reply to Mad Rocket Scientist says:

      @mad-rocket-scientist that’s exactly why I think we need more info to understand what happened here, actually.

      If it’s continued judicial overreach, that’s one thing. If it’s there were some other serious violations of law (like distributing illegally), and the charges include all federal violations, that’s another.

      We just don’t know if this family *only* grew medical marijuana for their own personal use, and that’s a salient detail. I wish it weren’t, but it is.Report

      • Damon in reply to zic says:

        Pff. @mad-rocket-scientist
        You actually BELIEVED something a politician stated? Shame on you.Report

      • Mad Rocket Scientist in reply to zic says:


        Well, no, and certainly not Obama, who has maybe kept one campaign promise he’s made. But I’m always happy to remind people how dishonest our political caste is.Report

    • Mad Rocket Scientist in reply to Mad Rocket Scientist says:

      I read a different article that suggested the amounts were consistent with personal use.Report

    • Kolohe in reply to Mad Rocket Scientist says:

      I was thinking the same thing, but the problem with that ‘gotcha’ is that the family had already had run-ins with state officials over compliance with state laws.

      So other than the fact that the rights of privacy should mean that the Harveys should have as many plants for personal use as they want, regardless of either state or federal law, the Harveys have much less of the high ground in defending themselves on the basis of the laws as written. (and stated Obama administration policy)

      Plus, one other principle – that may or may not be valid* – is that US Attorneys should be substantially independent from the home office in the Justice Department. Though on the other hand, Holder and Obama – and Sen Murray – should have know what Ormsby’s heuristics for this sort of thing were before they hired him in 2010.

      *in that ‘politicization’ of the US Attorneys offices was considered a big sin in the Bush administration, but I’m not sure it is one. The whole point of elections is to hold the executive branch membership accountable, and that means the Prez’s people get put in or taken out of positions of authority, and its not like US Attorneys are a statutorily independent agency, deliberately insulated from the political process.Report

      • Mad Rocket Scientist in reply to Kolohe says:

        While I would expect some level of independence in the satellite offices, I also expect such entities to follow orders. Obama said to let it go, this should probably be let go.Report

  9. Patrick says:

    Regardless of the legal questions involved here, I’d just like to say that if someone tells me they are growing 74 pot plants for personal use, I’m probably going to guffaw. As a judge.Report

    • Glyph in reply to Patrick says:

      Eh, there are 5 defendants, so 15 plants a head? I have no idea how often they flower or what the yield is per harvest (and how long you can keep the yield fresh before it goes bad), but that doesn’t seem like a crazy number to me.

      If I have 15 tomato plants, is that excessive for personal use (I don’t garden, I really don’t know)?Report

      • Kim in reply to Glyph says:

        Or how long you need to grow a plant before it actually makes good leaves…
        (that’s probably one year, but not all crops work like that).Report

      • zic in reply to Glyph says:

        @kim you want flowers.

        Leaves and stems, you either cook in butter or treat with ice water or butane to make hash.Report

      • dragonfrog in reply to Glyph says:

        We put in 18 tomato plants for the two of us, and still buy easily twice as many as we harvest every year. So, we apparently eat something like 20 plants’ worth of tomatoes a year per person – and we’re not even of Mediterranean stock.

        Also possibly relevant – my understanding is that police reporting of pot plant seizures tend to include include seedlings and immature plants in their undifferentiated count of “plants”.

        How many of those plants were seedlings or immature plants? I’m just making up numbers, but supposing 3/4 of seedlings survive, and plants spend 1/3 of their lives bearing productive harvests, an operation with 74 plants, producing a harvest at a steady rate, might consist of 30 seedlings, 22 immature plants, and 22 mature plants at the flowering stage of their lives. @glyph, if as you say there were 5 members of the household all using medicinal cannabis, that would only be about 4 mature plants per person.Report

      • dragonfrog in reply to Glyph says:

        @zic – that’s if you even bother with stems and leaves. I think some growers just incinerate stems and leaves.

        You can extract a tiny bit of THC from stems and leaves, but real hash is still made from the resin on the flowers.Report

    • Mad Rocket Scientist in reply to Patrick says:

      As Glyph said, the plants were for 5 adults. 15 plants a pop isn’t much (mom & dad used to grow weed, I got something of an education of it).Report

      • Patrick in reply to Mad Rocket Scientist says:

        Somebody needs to work on their green thumb, is all I’m saying.

        I think. Not that I know anything about crop yields. Or… forget I said anything.Report

      • Glyph in reply to Mad Rocket Scientist says:

        Heh, I should introduce you to my buddy. Hippie parents, similar situation. He STOPPED smoking weed at 12. He got rewarded for fast/one-handed joint-rolling from the backseat for mom & dad (they had to drive, yanno).Report

      • Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        I actually never smoked weed. Never done anything other than alcohol, to be honest. Seeing as how I am a child of the 80s, my parents pot habits were a huge stressor for me, as I was always a bit afraid they’d get busted & I’d get put into the foster care system.Report

      • Glyph in reply to Mad Rocket Scientist says:

        Yep, that’s pretty much what happened to him. In fact for many, many years he had uncertain US citizenship status, because his parents crossed the borders so much for their “business” and he was actually born in Mexico, and had nothing to prove that he was a US citizen. I used to tell him he was going to get deported, and have to serve in the Mexican Army (ay caramba!). He finally got all that straightened out a few years ago. But he smoked as a kid (“roll one for mom & dad under X seconds, and you can have one for yourself!” – great parenting, guys) – like I said, he gave it up a few years before most kids start experimenting.Report

      • Kim in reply to Mad Rocket Scientist says:

        Even the smell of Pot makes me vaguely sick (so do cigarettes), so I never had the urge to smoke it.Report

      • Mad Rocket Scientist in reply to Mad Rocket Scientist says:


        Same here. Tobacco smoke makes me gag. Pot smoke is only slightly less annoying. If I had to consume pot, I’d eat it long before I smoked it.Report

  10. Jim Heffman says:

    I’m actually rather surprised that only one person so far has brought up states’ rights, because that’s what I thought Jaybird’s question was about.

    Unless Jan Brewer being a horrible racist outweighs marijuana legalization.Report

    • Griff in reply to Jim Heffman says:

      States’ rights don’t really have anything to do with this case, at least under settled Federal law. Now, you might argue that the particular Federal law in question (the case is Gonzales v. Raich) is wrong — and I might agree with you. But that doesn’t change anything in this Federal courtroom.Report

    • Jaybird in reply to Jim Heffman says:

      I’m sure that there are state’s rights issues buried in here. My question, however, is on the judge’s ability to tell the defense to not tell the whole truth.Report

      • Griff in reply to Jaybird says:

        “The whole truth” isn’t really a thing. If you were determined to have someone tell “the whole truth,” they would have to start with “In the beginning there was darkness” and work their way right up to the second they were sitting there testifying in Court, and they still might not get to everything. What gets admitted in court is what is relevant and admissible under the rules of evidence.Report

      • Jaybird in reply to Jaybird says:

        I don’t think that it’s *THAT* absurd to say that an example that involves starting at the creation of the universe is silly and an example that involves mentioning the whole “I did this in accordance with Warshington State Law” is not silly.Report

      • Griff in reply to Jaybird says:

        I agree with you. But that line has to be drawn somewhere. The way we draw it is with the Rules of Evidence. Rule 401 and Rule 403 have been quoted upthread, and they are the rules under which this decision was made.Report

      • Gaelen in reply to Jaybird says:

        I think you’re a little to hung up on this ‘whole truth thing.’ In countries using the inquisitorial system the witness really does just testify to everything they know about the case (that is likely oversimplified and wrong–corrections welcome). In our adversarial system, there are a limits on what a witness can say in court. Simply put, there a number of rules that allow a judge to limit the testimony of a witness (like hearsay), and thus limit the witness’s ability to tell the whole truth.Report

      • Jaybird in reply to Jaybird says:

        It is good to know those rules exist.

        I imagine that if someone wishes to get out of jury duty, they can just ask beforehand “Are we allowed to know whether the prosecution and judge have colluded to withhold evidence from us using Rule 401 or 403?”Report

      • Griff in reply to Jaybird says:

        The easier way to get out of jury duty is to say “I believe that if you’re arrested and charged with a crime, you most likely are guilty. Therefore I will not be able to be fair and impartial in this case.”

        Alternate version: “I believe that the cops are liars who frame people all the time, and that our criminal justice system is fundamentally corrupt and illegitimate. Therefore I will not be able to be fair and impartial in this case.”Report

    • scott the mediocre in reply to Jim Heffman says:

      Your get out of jury duty questions only apply if one has made it to voir dire in a criminal case. I’ve gotten to voir dire six or so times: every single one has been an auto accident where liability is acknowledged but the two sides are arguing damages over soft tissue injuries. The fact that I live in suburban LA may have something to do with that odd distribution (I always get dumped on a peremptory, usually the plaintiff’s; maybe if I told them I read Burt Likko err, religiously, that would get me a permanent exemption as unfit for jury duty).

      To threadjack a bit, I find it extremely annoying that whichever side in these cases is asking for the jury trial can externalize so damn much cost. IANAL and don’t think I know enough to opine intelligently on “loser pays” in general, but I would strongly support a system wherein if the party who asks for the jury trial doesn’t prevail, they get stung with significant extra court costs (which maybe go into some sort of fund to partially reimburse employers who pay for jury duty, etc.), based on some nominal estimate of the externalized extra cost of asking for a jury. N.b. and a milder version of the sting gets applied if the parties settle (happened to me once while the attorneys were going through voir dire but hadn’t gotten to me yet), and who pays it is part of the settlement negotiation.

      Presumably the attorney who asks for the jury trial (in litigation, not repeat not talking criminal here) does so because said attorney thinks that going to a jury increases the expected value of her client’s recovery (or reduced/no damages for the defendant) by an amount greater than the extra attorney’s fees engendered by the extra work of a jury trial.

      But it really, really pisses me off that professional ethics probably require attorneys to actively ignore the external costs. Is that correct? Do Real Lawyers (especially on either side of the PI field, where I suspect this comes up the most) talk about this? Is there a standard reform proposal out there? If so I haven’t heard about it and would like to contribute to the organization pushing it (maybe, depending on said organization’s other agendas).

  11. Herb says:

    I think there’s more to this story than is being reported. Just basing that off my experiences in CO, where it would be relatively easy to prove the plants were grown for medical purposes. “Here’s my red card. Here’s my grow closet. Yep, hit my limit. There’s not one plant more. Take a look.”

    This family seems to have thought the rules were more like suggestions.

    From the article:
    “State law enforcers found 74 plants growing near the home. Under the presumption that the family was growing this cannabis as a collective, rather than individually, officers seized 29 cannabis plants so that the family would be compliant with state law, which limits collective crops to no more than 45 plants. State authorities did not press charges or seize anything else.”

    So perhaps they have “forbidden by the judge from using the argument that their plants were legal under state law” because the plants were not, in fact, legal under state law.Report

    • Jaybird in reply to Herb says:

      You’d think that the Prosecution would *WANT* that entered into the evidence, wouldn’t you?Report

      • Griff in reply to Jaybird says:

        I certainly can imagine situations where they would. In which case the defense might very well be able to get it excluded. In fact, it’s much more often the defense trying to exclude things under these rules than the prosecution in my experience.Report

  12. Burt Likko says:

    @jaybird I think you have misplaced your outrage.

    The outrage here is that marijuana is legal under state law and the Department of Justice has been issued guidelines by the Attorney General to not allocate resources to aggressively enforcing the Federal law in jurisdictions were the state law permits its use.

    Another outrage is that the political branches of the Federal government adamantly refuse to even consider decriminalization, with the result that a perfectly nice family that sparks up for medicinal reasons is facing a draconian prison term.

    Yet another outrage is that neither the judge nor the prosecutors are apparently willing to entertain plea arrangements that are reasonable in light of the severity of the crime (like, say, probation), necessitating a trial and a consumption of half a dozen jurors’ time and tens of thousand of tax dollars, all of which could have been better spent prosecuting crimes that have actual victims.

    Still another outrage is that they’re also being prosecuted for firearms violations when there is no evidence that the legal weapons they owned were ever used for the purpose of facilitating the sale of illegal narcotics.

    Yet ANOTHER outrage is that this is a small bust even by the DEA’s standards, the amount of plants and stored product is entirely consistent with individual use which would have produced substantially diminished charges, and the raid that resulted in it no doubt destroyed a private residence and has forever besmirched the reputation of a peaceful family. All of which the authorities are doing apparently for the principal reason to prove that they can.

    And THEN, it’s good to be outraged that this prosecution will fulfill no legitimate purpose of the criminal justice system whatsoever — these people need the medicine and will therefore probably find a way to get it in prison, so specific deterrence is doomed to fail and they are incapable of being rehabilitated unless they are somehow cured of their diseases which sure as hell isn’t going to happen in prison; no one in Washington state is likely to change their pot growing or pot consumption habits because of this; no crime worthy of retribution or revenge has occurred. So there is literally no identifiable public benefit that will flow from this prosecution.

    Lots of things to be outraged about, before you get to being mad at the judge’s probably legally correct ruling on the application of a well-established rule of evidence.Report

    • Don Zeko in reply to Burt Likko says:

      Sure, but if we keep arguing about the federal rules of evidence, then I can be one of those commenters with actual expert knowledge about the subject matter. It’s not like people that aren’t me find this interesting with any frequency. Jaybird, don’t you want to hear about character evidence? How about the Daubert factors?Report

    • Jaybird in reply to Burt Likko says:

      I imagine that most folks (in our circle, anyway) see all of the former as well-trod ground where nothing new is likely to be said.

      I, personally, find the rule of evidence, as it’s being applied here, to have the possible outcome of the defendant telling the truth about what happened as he best understood it to do so and be found in contempt of court for doing so.

      And that strikes me as perverted in a new and interesting way.Report

      • Don Zeko in reply to Jaybird says:

        Try to get your head around it by imagining a less sympathetic defendant, or perhaps that the judge is telling the prosecution, not the defense, that they can’t mention evidence. So for example, what if the police find drugs in some guy’s house through an illegal search. Just as in this case, there’s a pretrial hearing, and in it the judge tells the prosecutor that there will be no mention of the illegally seized drugs. So the police officer gets up on the stand and swears to tell the whole truth and nothing but the truth, but in this case that doesn’t include him describing the drugs that he found in the guy’s house. Is this a problem? Or is it, as I find it, a necessary step to ensure that we have a fair trial?Report

      • Jaybird in reply to Jaybird says:

        I understand shackling the prosecution. An example where, say, the prosecution (in a car theft trial, say) is not allowed to bring up that the defendant was found guilty twice before (for car theft) makes sense to me.

        It makes less sense to me to similarly shackle the defense in that way. That seems to stack the deck against the defense… and telling the defense that they cannot tell the truth without being held in contempt? That boggles my mind.

        I can’t wrap my head around it.Report

      • Don Zeko in reply to Jaybird says:

        Ok, how about this. Let’s suppose that we have a defendant who is charged with embezzling and who wants to get up on the stand and testify that he used the money to pay for his cancer-stricken son’s crippling medical bills. This is true. But the fact is that the jury isn’t there to figure out what is a just sentence, they’re there to determine whether or not the guy is guilty. There’s no way for that information to help the jury determine whether or not he stole the money, but what that information might do is convince the jury to find him innocent even though they think that he stole the money.Report

      • Jaybird in reply to Jaybird says:

        Am I crazy to think that these things would be mitigating (or aggravating) factors when it comes to sentencing?

        Like Jean Valjean stealing bread is, in fact, materially different than Ken Lay stealing money for a fourth yacht?Report

      • Griff in reply to Jaybird says:

        You are not crazy to think that, but juries have nothing to do with sentencing. In fact, an indication that the jury considered what a possible sentence might be is grounds for reversal of a conviction.Report

      • Gabriel Conroy in reply to Jaybird says:


        To add to what @griff said, I understood that sentencing is a different phase of the trial and that one can offer evidence in the sentencing phase that is not offered in the actual trial phase. I don’t know how true that is, or when it’s true. Perhaps not for drug offenses.Report

    • Gaelen in reply to Burt Likko says:

      I couldn’t agree more with both of these comments.Report

  13. Mike Schilling says:

    Marijuana is legal is Washington the same way that selling military secrets to the Russians is legal in Washington: there’s no state law against either one. Next time you’re on trial for treason, try persuading the judge to let you make that argument.Report

    • Road Scholar in reply to Mike Schilling says:

      Yep. And exactly the way simple assault (absent unusual circumstances) is “legal” at the Federal level or double-parking is “legal” at both higher levels.Report

    • Damon in reply to Mike Schilling says:

      Highly unlikely you’ll be charged, much less convicted, of treason. Even most spies aren’t convicted of treason since the burden is so high. Below is the definition:

      “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”Report

  14. Wagon says:

    Pretty easy to answer: it’s irrelevant to the charges. Legality under state law has nothing to do with whether she broke federal law. Two sovereigns, two sets of law, two court systems. Introducing evidence that it’s legal under state law is essentially a jury nullification tactic.Report

  15. Mad Rocket Scientist says:


    So the judge said no to mentions of state law legality. Aside from a contempt charge, what exactly is stopping the defendant from taking the stand and extemporaneously talking about how the state law is thus, and the DOJ promised to stay out of it? Sure it’s a mistrial and all, but it’s contempt versus 60 years in federal prison.Report

    • Griff in reply to Mad Rocket Scientist says:

      He wouldn’t really get anything out of it. If a mistrial was declared, he would be held in jail until his next trial, at which point the same rulings would be in place. If he disobeyed the rulings and a mistrial was declared, he would be held again until his next trial. In other words, most likely all he would accomplish is being held in jail indefinitely.Report

    • dragonfrog in reply to Mad Rocket Scientist says:

      Alternately, when asked if he swears to tell the truth, the whole truth, and nothing but the truth, what would the outcome be, if the response were something like:

      “I would love to so swear, but I cannot, because the judge has made it clear to me that should I utter certain words of truth in my defence, I would be charged with contempt. So, I can honestly and in good conscience swear only to tell the truth, nothing but the truth, and only as much of the truth as the jury is allowed to hear.”Report

      • Don Zeko in reply to dragonfrog says:

        Probably a mistrial, so the same result.Report

      • Jaybird in reply to dragonfrog says:

        If a defendant telling the truth results in a mistrial, something has fundamentally been screwed up somewhere.Report

      • Don Zeko in reply to dragonfrog says:

        This is an argument against having any rules of evidence at all. All sorts of things are the truth, but have no place being heard by a jury. If I want to admit a rumor that my witness heard from a chain of four other people that weren’t there, that doesn’t come in, even if it’s absolutely true. If I want to read an incriminating affidavit of an absent witness in a criminal case, that’s barred by the confrontation clause and doesn’t come in, even if the information in it is absolutely true. If I want to have the whole town get up on the stand and say that the defendant is a violent lowlife that beats his wife in order to prove that he cheated on his taxes, that’s barred by the rules of evidence and doesn’t come in even if he is a violent lowlife that beats his wife. If I want to admit statements that you made in a settlement negotiation, your offer to pay for my medical bills after our car crash, or things you told your psychiatrist in confidence against you, that’s not coming in even if the statements are completely true.

        The only difference here is that you (and I) don’t think growing pot should be criminalized at all, not that there’s something wrong with the procedure.Report

      • Chris in reply to dragonfrog says:

        Can you think of any situation in which the defendant telling the truth might be problematic, legally? I mean, where it might be bad enough that the judge would want to rule certain facts inadmissible?Report

      • Don Zeko in reply to dragonfrog says:

        Sigh. I realize after posting that most of my examples are not showing how these rules would work against a criminal defendant, but many of them still function in that context. Several, however, forbid the prosecution or parties in a civil suit from bringing in evidence that a criminal defendant does get to bring in, for what it’s worth.Report

      • Jaybird in reply to dragonfrog says:

        Can you think of any situation in which the defendant telling the truth might be problematic, legally? I mean, where it might be bad enough that the judge would want to rule certain facts inadmissible?

        Everything that I can think of is stuff where the guy on the stand would say something like “it’s worse than what I’ve been accused of. I’ve been accused of carjacking but *I KILLED THE DRIVER OF THE CAR*.”

        So… yeah, I suppose that that would make things worse in the sense that it would have the guy himself be found guilty as hell… but it seems like something that would not harm the system itself. This is the system itself demonstrating how robust it is. Hurray! A guilty guy got found guilty! That “under oath” thing works wonders!Report

      • Jaybird in reply to dragonfrog says:

        Don, please understand, I understand that there are plenty of examples where the prosecution’s hands are tied. They aren’t allowed to mention previous convictions that any given guy at the table has had. I completely understand that *AND SUPPORT THAT SORT OF THING*.

        Ideally, our justice system ought to be set up so that the prosecution has a tough row to hoe and has to overcome such things as a presumption of innocence.

        Tying the hands of the prosecutor makes sense.Report

      • Don Zeko in reply to dragonfrog says:

        Sure, plenty:
        “John told me he did it.”
        “Dave (the victim) was a child molester.”
        etc. etc. etc.Report

      • Will Truman in reply to dragonfrog says:

        Can’t a defendant on the stand violate rape shield?Report

      • Don Zeko in reply to dragonfrog says:

        Jay, the thing is that, while there are reasons to be especially worried about people being wrongly convicted, letting people get away with it for illegitimate reasons is corrosive to justice and liberty too. That’s why we have bad memories of, for example, white men in the south getting acquitted by all-white juries when they’re accused of killing black men. So if I’m on trial for murdering a child molester, a Neo-Nazi, or whatever, I can’t get up and tell the jury that. If I do, the jury will have difficulty doing their job which is only to determine whether or not the prosecution has proven that I am guilty. They might decide that, even though I am a murderer, I am a murderer that they don’t want to punish, because they find my victim abhorrent. Allowing 12 ordinary citizens to determine who gets to get away with breaking the law is not what our jury system is there for.Report

      • Jaybird in reply to dragonfrog says:

        During the time of white juries finding white defendants not guilty for murdering black people, was the problem a problem of defendants telling the truth under oath?Report

      • Don Zeko in reply to dragonfrog says:

        @will-truman In some cases, yes It depends upon exactly what the evidence of the victim’s past sexual activity is being used to prove. You can use it to prove consent, or to prove that somebody else was the source of the physical evidence of the rape. If that’s the case, the Defendant doesn’t have to be on the stand to put this evidence forward.Report

      • Don Zeko in reply to dragonfrog says:

        @jaybird I’m sure that there were cases where it was part of the problem. “He was flirting with that white girl” may well have been the truth, but for the defendant to say those words in such a courtroom isn’t getting us anywhere closer to justice.Report

      • Jaybird in reply to dragonfrog says:

        It seems to me that the jury nullification argument is a separate one from the defendant’s truthful testimony.

        “We can’t allow the defendant to tell the truth because the jury might not find him guilty” seems to presume guilt to a degree that the system shouldn’t be doing.Report

      • Chris in reply to dragonfrog says:

        Jay, what about something like, “I knew that she has sex with everyone” for a sexual assault defendant? Because suggesting that the victim is promiscuous has long been one of the most common rape defences. Is that something that should be OK? If it’s true that the defendant really did think she was promiscuous? Is that likely to affect the jury in a way that it shouldn’t because it is ultimately irrelevant to the question of whether this guy is guilty of rape in this case?Report

      • dragonfrog in reply to dragonfrog says:

        All these examples seem like ones of guilty people actually admitting their guilt, and increasing the likelihood of their own convictions.

        If a rape defendant says of his victim “but she was promiscuous” then he’s pretty much admitting that he raped her.

        If a white murder defendant says of his black victim “but he was flirting with a white girl” then he’s pretty much admitting he murdered him.

        If the murder victim was a neoNazi, does the prosecution get to bring up that fact to establish motive because the defendant is known to hate neoNazis? Does the defence get to bring it up to establish self-defence? Or is the jury left wondering why on Earth these two people with no clear quarrel are supposed to have gotten into a fight that left one of them dead (and so, probably acquit)?Report

      • Griff in reply to dragonfrog says:

        @dragonfrog the “but she was promiscuous” line would be offered in support of a defense argument that the victim actually consented to the sexual activity but for whatever reason decided to falsely accuse him of rape. So in that case (unlike with the medicinal pot issue) there actually would be a theory of relevance to the question of whether the crime had been committed. Nevertheless, most jurisdictions have decided for policy reasons that this isn’t a line of defense they want people using when they’re charged with rape, and they’ve enacted “rape shield” laws that prohibit the defendant from going into the sexual history of the victim during the trial except in narrowly defined circumstances.

        The “but he was flirting with a white girl” line is more what you’re talking about; it’s essentially an admission of the charge, while offering a legally illegitimate reason to encourage the jury to acquit him notwithstanding his guilt. In that sense, from a legal standpoint, it’s much more like the medical marijuana example from this case.Report

      • Chris in reply to dragonfrog says:

        dragon, that’s not the way it works. Because rape is generally a crime with no witnesses, it’s a matter of he-said she-said. If the defense can convince the jury that the woman consented, by say convincing them that she wouldn’t have been likely to say no because she’s promiscuous (not valid logic, but the way a lot of people think), then the jury may believe that the sex was consensual.

        Recall that in many cases, the issue is not whether the accused had sex with the victim, but whether it was consensual.Report

      • zic in reply to dragonfrog says:


        If a rape defendant says of his victim “but she was promiscuous” then he’s pretty much admitting that he raped her.

        First, that’s like a total zic-bait comment, no?

        Second, if almost anybody but you had written it, I’d be all peeved; I get it’s an admission he raped her, but that’s not how it translates to in the real world most of the time. That awakening would be welcomed.Report

      • dragonfrog in reply to dragonfrog says:

        It might be the defence’s theory, on the assumption that the jury was as steeped in rape culture as the rapist, but I don’t know it would work…

        I mean, I get the idea, but it seems like letting the defendant bring it up would just give him enough rope to hang himself. If an accused mugger said “But he’s generous – downright philanthropic, regularly gives money to beggars. He freely gave me all the money in his wallet because I asked nicely, and now he’s turning around and accusing me of robbery” it wouldn’t fly any better.Report

      • dragonfrog in reply to dragonfrog says:

        @zic, @chris @griff – yeah, you’re right. I wish you weren’t, but you are.Report

      • Griff in reply to dragonfrog says:

        That is an admirably generous assumption about how a jury would view such an argument coming from a rape defendant. I will just say that the experience of prosecutors and rape victims doesn’t really bear it out.Report

  16. Griff says:

    @jaybird , if you’re looking to get truly outraged about unreasonable evidentiary rulings by a trial judge resulting in (what appears to be) an unjust conviction, I’ve got a doozy for you: http://blog.simplejustice.us/2014/05/10/latitude-and-longitude-the-conviction-of-cecily-mcmillan/Report