A group is going to try and get the South Dakota Legislature to adopt a bill legalizing medical marijuana.  The following is from Bob Newland about that effort.

-----

South Dakotans for Safe Access will bring an item before the legislature in the 2009 session. We want sick, disabled and dying people to be able to use cannabis to alleviate their conditions. We want the legislature to remove law enforcement, as much as possible, from interfering with doctor/patient relationships, except in cases of real criminality.

Denying effective medication to people who need it is unspeakably cruel. Yet, that is exactly what South Dakota law does. A government acting in this manner can not call itself civilized.

The therapeutic benefits of cannabis are undeniable. The question is: How can South Dakota lawmakers recognize this fact in law while not creating a legal mess worse than the current situation?

The voters want sick, disabled, and dying people to have access to medicine that works for them, even if it is cannabis. Yet federal and South Dakota law proclaim there is “no medical use” for cannabis.

Here are some scientific facts about cannabis:

1. There is no record in medical history of a person dying from ingestion (by any method) of cannabis.

2. There is no record in medical history of a cannabis-only (no tobacco) smoker contracting lung cancer.
The implications of this are enormous. Several studies have shown that THC (tetrahydrocannabinol) shrinks tumors in mice, or averts their incidence. The fact that cannabis-only smokers have a lower lung cancer rate than the general population suggests something. Perhaps further studies are necessary?

3. Four major US government studies have concluded that, at the very least, therapeutic benefit appears to accrue to some people for some afflictions. They recommend further study. Dozens, maybe hundreds, of “minor” medical studies have confirmed the benefits of cannabis for several specific afflictions.

4. The Drug Enforcement Administration (DEA), at the direction of the White House, will not allow scientific study into cannabis therapy, because Congress says cannabis has “no medical value”.

5. For over 20 years, the FDA has sent 300 rolled cannabis cigarettes per month to each of six patients in the United States.  The George H. W. Bush administration instituted the Compassionate
Investigational New Drug Studies, program which administered govt.-grown cannabis to people who applied and were accepted. 22 people were accepted for cannabis studies. Of those, 6 are still alive (Remember, these were nearly all seriously ill people; most lived far beyond their prognoses because of cannabis, their doctors say.)

Clearly, the federal government is of two minds about therapeutic use of cannabis.

South Dakotans pride themselves on their good common sense. Its existence was demonstrated in the 2006 election, when 48% of the voters agreed with us that sick, disabled, and dying people should not be prosecuted for trying to feel better with medicine that works for them.

The quandary, we believe, lies in what some perceive as a conflict between federal and state law if, say, South Dakota were to statutorily allow patients to possess cannabis if their doctor thinks it might help
them (the same standard as for the opiates oxycodone or percocet).
 
Our position is that South Dakota law enforcement is under no obligation to enforce federal laws. If the DEA wants to go to Chamberlain and drag a wheelchair-bound paraplegic to jail for using cannabis to extend his life, there’s probably not much we can do, but we don’t have to assist them. It is cruel to do so. We’d like to make it illegal to do so, thus removing any question from the minds of law enforcement agents.

13 states have now passed legislation allowing patients to possess and use cannabis, if they have a doctor’s recommendation. In fact, the 48%-52% vote in South Dakota in 2006 was the only time medical cannabis has appeared on a ballot in the US without passing.

We propose that the South Dakota legislature discuss and pass a law:

Providing for patients to possess and use cannabis, if their doctor recommends it. The law also needs to provide for either the patient or a caretaker to grow cannabis for the patient. It also needs to provide for
an affirmative defense of medical use for people who use cannabis medically but have not yet acquired a doctor’s recommendation at the time they were accused.

You can see SDSA’s model law at http://www.sodaknorml.org/sdsa_files/081120ProposedBill.htm

This is the language we proposed in the initiative that got 48% of the vote in 2006. We’re willing to work on it.

The Tom Faltynowicz case (see accompanying sheet) illustrates graphically why this needs to be done. It is just wrong to place police officers, prosecutors and judges in the position of having to choose
whether to do the right thing or to treat sick people like the criminals the law says they are.

http://www.sodaknorml.org/Falt/falt.htm#sentence

A respected Rapid City physician said, under oath in a Sturgis courtroom, “Smoked marijuana is essential to Tom Faltynowicz’s therapy.”

The conflicts that arose during the Faltynowicz case are present, to a lesser degree, in many other prosecutions in South Dakota. This is not a good way to administer justice.

We are confident that a majority of South Dakota legislators will agree that it’s not a good way to administer justice, and will act to withdraw South Dakota’s support for the federal government’s war on
sick, disabled, and dying people.

If you support our position, or have any suggestions on how to make our proposed legislation better, please contact us right away.

Very best regards,

Bob Newland
South Dakotans for Safe Access

This is a blog that deals with the law (once in a while)—and entertainment (once in a while).

So…

Enjoy this sneak preview of a new lawyer show—Raising the Bar—on TNT.

As I noted yesterday, I was a little concerned about our (South Dakota's) good U.S. Senator, Tim Johnson, on the Wall Street Giveaway.

Afterall, he had received quite a bit of campaign money over the years because of his position on the Senate Banking Committee and he helped screw consumers to the benefit of credit card companies in 2004 and 2005 with his support of bankruptcy "reform."

But Tim came through like a champ in crunch time and voted against the revised bailout measure which passed the Senate.

I had no such hopes for Sen. John Thune as he's basically Bush's toady.  But I do note for the record that Kansas' two very Republican Senators, Pat Roberts and Sam "Every Sperm Is Sacred" Brownback also voted with Johnson against the Greedy Capitalists Socialism Act.  Nice to see that the Senators in my other home state have some ya-yas.

Thanks Tim (and Pat and Sam).  Now, Stephanie (Herseth Sandlin (D-SD), please hold the line like a good little Blue Doggie and vote against this version again in the House tomorrow.

I am quoted today in a Sioux Falls Argus Leader story about the expanding use of teleconferening in South Dakota's state courts.

Video a key player in SD courtrooms
Sioux Falls Argus Leader - Sioux Falls,SD,USA
Sioux Falls lawyer Todd Epp is among the more receptive to the technology, which he said is an improvement over phone conferences....

There's a Black Hills area murder trial featuring a defendant named Chari Miranda.

Of course everyone has heard of the Miranda case (also named after a defendant named Miranda) whereby the U.S. Supreme Court said police have to give criminal defendants certain warnings about waiving their rights against self-incrimination.  This is known as the Miranda Warning, or Miranda Rights or in police parlance, Mirandizing the defendant. 

It's also a staple of all TV cop shows.

So, wouldn't it be ironic if the cops didn't give Miranda rights to someone named Miranda?  (I don't think this is an issue in the case.  I am just postulating for humor's sake.)

Imagine the arrest:

"Hey, Miranda!  Here are your Miranda warnings.  But I don't have to tell you that as you're already Mirandized, right?  Born that way, huh?" 

I like being a lawyer. I get to do some interesting things. Plus, I get paid to argue. Which is a good thing as I like to argue. Might as well get paid for it.

But contrary to what a lot of lay people think, being a lawyer is not usually the most exciting job in the world. It can be one of the most stressful, busy, and frustrating jobs in the world, as well as a job where you do a lot of reading, sitting, and staring at a computer screen.

But today was one of the crazier days.

I was up early, preparing from home for two hearings. Just sitting in my underwear, drinking coffee, and reading pleadings and making notes. (Yes, me sitting in my underwear is a frightening thought.)

Then it was off to the Federal Courthouse—no time for breakfast, the most important meal of the day—for a three hour hearing we all thought might take an hour. Then it was off to Olivet, the county seat of Hutchinson County, with only time to go through the McDonald’s drive through for road food.

After a mad dash to Olivet (I’m running late, of course, for my hearing there in state Circuit Court), I nearly drive through town (which is about four blocks long) and almost pass the courthouse, which looks more like a church or an elementary school.

The prior hearing runs long so I get a chance to meet my clients for the very first time. We have the hearing then I talk to my clients about what happened outside by the flagpole.

Olivet is a quaint little town nestled in a valley by the James River. It really is a lovely little place. But they have the bitingest flies in South Dakota. While talking to my clients, flies try to bite every uncovered part of our bodies.

Then it is back across US 18, US 81, and SD 42 to Sioux Falls, just in time to check my voicemail and head off to ref a soccer game.

As a lawyer, I’ve also argued before the South Dakota Supreme Court, the U.S. Court of Appeals for the 8th Circuit, taken depositions in Dallas, appeared in Federal District Court in Detroit, and even visited a client in Syria. But most days aren’t like that. They’re more like today only with fewer flies.

With an insurance settlement in place and not much else in the press lately about NSU Prof. Morgan Lewis' murder, SD Watch received his comment today on an earlier story from an "APD Officer 264":

Let me tell you from actually working on the case that it leaves very little doubt that this was in fact a murder. even the Coroner ruled it a homicide. A suspect had a motive and knew facts of the case that were never relased to the public. I read the report. I worked on the case. I dealt with the suspect. I like many other officers still feel that it was murder, not suicide. But 2 murders on NSU would look bad in the press and enrollment would drop. A suicide and an accicental death look a lot better to prospective college students than 2 murders with no arrests.

I have no idea if this commenter is a real cop in Aberdeen or someone yanking our chains. But it does seem have a ring of truth to it.

Regardless, Prof. Morgan's death never seemed to add up fact-wise. It wouldn't be the first time a spin was put on tragic events in the name of commerce or institutional image.

Technorati Tags: Morgan Lewis, Aberdeen, South Dakota, Northern State University, NSU, murder, unsolved murders

From Protect Private Property:

Attached is the press release announcing the result of the South Dakota Secretary of State’s validation of SB 174 referral petitions. Unfortunately the Secretary of State determined that the 18,850 petitions submitted to refer SB 174 to the November ballot did not include a sufficient number of valid signatures to refer the law to a vote of the South Dakota people.

The efforts of Protect Private Property to refer SB 174, an act to revise certain provisions relating to the exercise of eminent domain by railroads, to the November 4 general election ballot were therefore unsuccessful.

Protect Private Property is a group of citizens concerned with property rights in South Dakota. The group worked to give South Dakotans the opportunity to vote on whether the state’s new eminent domain law should stand. The group believes that SB 174, passed by the 2008 South Dakota Legislature, is an assault on South Dakotans’ private property rights.

Existing law provides a balance between the rights of corporations and the rights of landowners in railroad eminent domain cases. SB 174 tilts the balance of law in favor of corporations and against South Dakota landowners.

We fought to keep the law in balance so that both sides would receive equitable treatment.

Technorati Tags: eminent domain, South Dakota, 2008 election, referred laws

I’ve been busy traveling, going to meetings, or seeing my Dad and one of my law professor friends while here in Topeka. But it has been an eventful day or two so far. Some highlights:

• Hung out with Rodney, my Dad, who lives in Augusta, Kansas.
• Hung out with Myrl Duncan, one of my law professors from Back In The Day at Washburn Law School.
• Shook hands with keynote speaker, Kinky Friedman, writer, satirist, singer, former Texas governor candidate.
  
• Saw Gov. Kathleen Sebelius, often mentioned as a possible running mate for Sen. Barack Obama.  She’s also quite babalicious.
  
• Had about the best tacos de carnitos ever at Pepe and Chelesea’s in Topeka.
• Saw the “Rev.” Fred Phelps and his band of anti-gay bigots protesting outside of Topeka High School, the site of the annual Bar Show. They have industrial strength metal protest signs that they can take on the road for their protests.
• Had a great seminar on closing statements and presenting a pie chart on damages in personal injury cases.
• The Bar Show features local dancing, singing, and acting lawyers.  It is a tradition that goes back to 1936.  It’s nice to see my colleagues step out of their sometimes stuffy roles as lawyers and judges.
  

More stuff today then back home to Harrisburg then back on the road to Chamberlain, SD tomorrow.

Technorati Tags: Fred Phelps, Topeka, Kansas, Kathleen Sebelius, Barack Obama, Kinky Friedman

Here’s some news to make my artist buddy Scott Ehrisman smile—the NEA says there are twice as many artists as lawyers in the U.S.

From the ABA Journal:

Ever dreamed of giving up your legal career to become an artist? If you did, you would find yourself in a more popular occupation, at least in terms of numbers (and perhaps in terms of public sentiment).

The National Endowment for the Arts has studied the U.S. census data and concluded that nearly 2 million people earn their living as artists, the Washington Post reports. That compares to 1 million people who work as lawyers.

I’m guessing the average Joe can name more famous artists than famous lawyers. Heck, I’m a lawyer and can probably name more famous artists than lawyers.

But on a serious note, both artists and lawyers serve important roles in our society. Though most people might like to hang a lawyer in their living room, they typically don’t and hang a painting instead. Which is good business for both groups.

Technorati Tags: lawyers, attorneys, artists, NEA, ABA, Scott Ehrisman

The U.S. Supreme Court issued a major intellectual property decision yesterday, essentially affirming the patent exhaustion rule, which is akin to the "first sale" doctrine in copyright law.

In other words, the patent or copyright monopoly doesn't extend past the first sale of the item. The rights owner can't perpetually control--or require royalties--from subsequent owners.

Here's a snippet from Legal Times via Law.com about the decision in Quanta Computer v. LG Electronics:

Supreme Court Limits Companies' Ability to Collect Multiple Royalties on Their Patents
Legal Times

The Supreme Court on Monday breathed new life into the doctrine of patent exhaustion -- thereby limiting the power of patent-holders over "downstream" transactions. In a unanimous ruling authored by Justice Clarence Thomas, the Court stood firm behind the 150-year-old doctrine, under which "the sale of a patented item terminates all patent rights to that item." In other words, the patent holder has little or no power to restrict what the purchaser does with the patented items after the first sale.

Technorati Tags: patents, copyright, intellectual property law, U.S. Supreme Court

Sorry for the late posting. The jury came back in my federal drug conspiracy criminal case late Thursday night. I was wiped out Friday and mostly slept.

Anyway, the jury convicted my client of the greater offense of conspiracy to distribute 50 grams of crack cocaine. Two of the other defendants were also similarly convicted but one of the defendants was acquitted on all charges. That’s good for him—he goes free—but makes my job on appeal to the 8th Circuit more difficult as the jury obviously considered the evidence separately as to the four defendants.

Even though the feds have a conviction rate of 97% or so, I really thought my client had a chance. Four eyewitnesses could not identify him in court. Countless others didn’t know his name. Still others never mentioned his name.

Frankly, I thought I gave a really good closing argument that wove the facts and my theme—that these cases are like Play-Doh where the Governments stretches things to make whatever they want. I thought I had an attentive jury.

But that’s not how 12 citizens thought it went. I have to respect the jury’s decision. That’s the basis of our system of justice.

However, that doesn’t mean I don’t think they’re right.

All the attorneys in the case did a great job—John Haak, the Assistant US Attorney, put on a well organized case. He was nothing but a professional and a gentleman. I can’t say enough about fellow defense attorneys Dave Pfeifle, Mike Hansen, and Tom Wilka. They all fought hard, fought fair, and with passion and intelligence. Dave actually got his guy off. It was a pleasure litigating with all of these attorneys. I also learned a lot from them that I have put in the back of my mind for my next trial.

So, I’ll be filing some post-conviction motions and a appeal. We’re not done yet!

Meanwhile, Monday, it’s also back to my other clients and their needs.

I probably enjoyed trying this case more than any other case I’ve had. When you are in the courtroom fighting for someone’s life, it is both serious and exhilarating. Even though I disagree with the result, it is a marvelous process and I am reminded that I work in a noble profession.

Technorati Tags: criminal law, federal district court, drugs, conspiracy, law, lawyers

Sphere: Related Content

Sorry for the lack of updates on my big federal drug conspiracy case. I’ve been working literally night and day in preparation and researching issues. Plus I’ve had other issues in my practice to deal with.

I’ll provide more of an update later. Suffice it to say the case is in the hands of the jury right now (5:50 p.m. CT). They’ve had it for about two hours. I’ve been instructed to stay in town in case the jury has questions or they come in.

I feel good about my client’s chances but we’ll see.

Technorati Tags: criminal law, drugs, federal district cout, law, lawyers, trials Sphere: Related Content

 

All the trial techniques literature and studies I read say that jury selection is the most important part of the trial. Frankly, however, it is often the most overlooked by attorneys. I’m probably no exception, though each time I pick a jury, I prepare more and more and try to devise a strategy going in.

But there is also a practical problem. How do you track all the comings and goings of jurors in the pool? In USA v. Ayodele, et al, Todd’s Big Case (I’ve changed the name from Anatomy of a Criminal Case), we had at least 30 prospective jurors prior to preemptory strikes. We also had a lot of prospective jurors coming and going because of challenges for cause before that.

So, how to track that?

I’ve used everything from boxes on a legal pad (not enough room and too messy) to using small Post-It notes on a legal pad (neater but still too small).

So, this time I used a 16” x 16” magnetic dry marker board and small Post-It notes. I used one color for the initial pool of jurors and a different color for jurors who were struck for cause. I could hold the board in my lap and carry it to the podium for my turn at voir dire. I also could make the names big enough so I could read them and address a prospective juror by name. I also had enough room for some key notes about the juror’s responses.

I still didn’t quite have enough room for all the juror names but it worked pretty well. I’ll probably use it again for my next jury trial but with a few tweaks.

The prosecution used a modified system that seemed to work pretty well too. They had a large sheet of heavy paper with boxes drawn on it. They would then use one color of Post-It notes for new jurors then another color for jurors who were struck in preemptory strikes.

Thank God for Post-It notes! They are so useful to attorneys for not just this but for marking passages in documents or key points on legal pads.

 

Technorati Tags: Post-It notes, voir dire, trial techniques, jury selection, dry marker boards, federal district court, criminal trials, jury trials

A pretty good first day for a trial.

My colleague Dan Fritz pulled a legal rabbit out of hat to start things. I found a major untruth in the grand jury transcripts we just received. Basically, his client was indicted based on false information. Dan made a great argument before trial and his client walked out the door a free man.

Let me tell you something. That doesn’t happen very often. The Government can still recharge his client but as far as great results go, that’s about as great as they get.

Dan did some marvelous lawyering. I’ve known Dan since 1997. It was fun to witness him get this incredible result.

As far as motions in limine went, well, we defense counsel lost most of them like we thought. Better to have moved and to have lost than to have never moved at all, I guess.

Jury selection took longer than expected. Judge Piersol did a very thorough job. I introduced my “theme”—that the Government’s conspiracy case is like Play-Doh—you can mold Play-Doh into just about anything, including a conspiracy case.

I enjoyed the voir dire process. It’s kind of a game to try and coax complete strangers to be brutally honest about their beliefs—but vitally important.

The jury is actually quite a bit younger than I thought we were going to get, considering how old many of the jury wheel members were.

We got through opening statements and the Government started putting on its case in chief. My client seemed to like both my voir dire and my opening statement. When I get time, I’ll post it.

Daughter Sarah, my temporary legal assistant, was a real trouper. Whenever the prosecutors objected during my voir dire or opening statement, she would get really mad. At the breaks she told me how much it ticked her off. I told her it’s all part of the gamesmanship of trial—I try to see how far I can go making argument and inserting personality into the process (and a few shots about the Government’s case) and the prosecutor tries to limit that to just the facts, ma’m.

I’m pretty philosophical about those things now; my daughter wants to roll up her sleeves and go belt someone. I like that fire. But I also have to think straight and be dignified as well. Can’t do that when you’re an angry attorney.

She was also a good sounding board about what seemed to be working and not working with my presentations and cross examinations. I told her this was a time she could be brutally honest with her old man. And she has been. And it has been helpful.

Driving to the federal courthouse, she asked me about the trial. She asked me about who would be witnesses against my client. I said, “A lot of crack cocaine addicts.” Her response was straight forward. “Dad, everyone knows crackheads lie.”

Might just save that one for closing argument.

More Government witnesses tomorrow. The government will probably call over 20 people. Don’t plan to be a lawyer, witness, judge, juror, federal marshall, defendant, or court staffer without a iron bottom to take all the sitting.

Off to bed!

Technorati Tags: federal court, criminal law, crack cocaine, lawyers