"You Do Realize Possession of Marijuana is Against the Law..."

First Point: when you decide to set your criminal case for jury trial instead of entering into a negotiated plea, your next setting will be the jury docket. And you won’t be the only one on it.

In Travis County there can be anywhere from 40 to 60 cases set for jury trial on the same day. Obviously, not every case goes – only one does – and the rest are reset for later. (Well, some are renegotiated and plead; some were just set on the docket for the client to finish some requirement to get a reduction; sometimes the lawyer was just stalling to get paid, etc.)

 

At any rate, there’s always a long docket for a judge to call on jury day.

 

Second Point: Misdemeanor Possession of Marijuana is one of the least commonly tried cases, at least in Austin. For the most part, first offenses can be reduced or dismissed outright if the accused agrees to take a drug class, do some community service, and/or prove they can stay out of trouble for a certain period of time. There’s generally not a reason to try them.

 

DWIs on the other hand are the most frequently tried case. The political pressure on the prosecutors to convict – from MADD and others – is intense; and the defendant isn’t as demonstrably guilty of the offense as they are in many types of cases, i.e. shoplifting, drug possession, etc. Those two competing forces make DWI the most likely case to go to trial.

 

With that as background, here’s what I overheard in County Court Number [Deliberately Withheld, or DW] while sitting around waiting for my case to be called. Judge [DW] was calling the jury docket, and for whatever unknown reason there were a substantial number of Marijuana cases on the docket. One after another.  And another.

 

Well this particular judge has a penchant for addressing the pews of defendants in a down to earth manner. And has a reputation for a good sense of humor. So after calling marijuana case after marijuana case on the jury docket, the judge suddenly stops and looks into the audience of the accused and says, somewhat exasperated and possibly half jokingly:

 

“You do realize possession of marijuana is against the law don’t you? Even if it’s a ‘just’ a small amount?”

 

After the lawyers - including me - and some of the defendants stopped giggling amongst themselves, I thought to myself: “I’m pretty sure they do now, Judge. If they didn’t before, I’m pretty sure they do now…”

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Comments (3) Read through and enter the discussion with the form at the end
G. Smith - October 15, 2008 10:16 PM

I do not doubt that mandatory sentences are unfair and take discretion from judges and juries. I also do not disagree that we need more drug treatment for drug users, but I disagree with eliminating punishment for drug possession. First of all, you need some strong incentives for a drug user to stay off drugs and keep getting treatment. Second, very few users seek treatment on their own. Most have to be made to go. The best solution would be for more first offenders to be sentenced to probation with mandatory drug treatment and counselling. If, after treatment, the users goes back to doing drugs then we can try some jail time to send the point home, followed by another stint at treatment. Any further drug use and the user will just be put on the bus to Huntsville.

Joseph Z. - October 20, 2008 2:10 PM

Perhaps there is a hope that the Juries in Austin will nullify and reach a verdict of not guilty because there is no victim and without a victim then there is no real crime that has been committed.

Marijuana Lawyer - November 8, 2008 11:27 AM

Many would agree that when it comes to marijuana use, there truly is no victim.

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