Mens Rea: Independence Day should bring us back to the basics-- Did we forget who is in charge here?

This nation just recognized the 235th anniversary of the date that we divorced an arbitrary and control-crazed ruler. The Declaration of Independence was signed July 4, 1776 after the 2nd Continental Congress voted to secede from the British Empire and the rule of King George III. The question for the members of the Congress that sweltering summer was whether to tear off the chains of the tyrannical rule of King George III or muddle through as an oppressed colony because of the stability and the cloak of protection from the King. The motion passed without opposition on July 2. A committee led by Thomas Jefferson completed drafting the declaration in 3 weeks. The final version made clear the national dilemma: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed" (Declaration of Independence, July 4, 1776). The Congress struggled with the competing voices: one for divorce from oppressive rule and the other for continuing to try to effectuate change from within. Ultimately, they chose the rule of law over the rule of man. The phrase: "[t]hat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed," has stood long as one of the bedrock principles of our democratic experiment. In other words, the people have the power in this country. That concept is what made our nation great. There is an example in Michigan of the will of the people being subverted to the will of men. Voters used the citizen initiative clause of the state constitution to approve the Medical Marijuana Act in 2008. A 2/3rds majority approved the MMMA. However, since it was enacted the MMMA has sparked litigation, mainly arising from citizens who wish to avail themselves of the protections of the act for their use of marijuana for medicinal purposes only to get denied by judges. Judges are prohibiting accused citizens from arguing to a jury that he or she is a qualifying patient, who uses marijuana medicinally under the Act. The judges are deciding that the person's defense is specious because it is not a qualifying medical condition or because the doctor-patient relationship is not bona fide or for a variety of other reasons The MMMA contains 2 primary components in the criminal prosecution context: Section 4 bars prosecution or arrest of any person who holds a medical marijuana card. Section 8 allows a person who does not have a card but otherwise was certified as a qualifying patient, to assert an affirmative defense from prosecution for possession or use of marijuana. I can certainly see a judge holding as a matter of law that the accused is not entitled to a dismissal under the MMMA, but to prevent the person from making an argument to a jury? Judges are not the law. Judges are lawyers with the authority to impose the law - not make it. In a jury trial, the jurors are the law. The people decide. To take the MMMA out of the hands of the trier of fact denies a citizen access to trial by jury. The Michigan legislature is also considering HB 4851. The bill creates new restrictions for doctors who prescribe marijuana to their patients. For example, the bill defines a "bona fide" doctor- patient relationship as one in which the doctor has a reasonable expectation of follow-up care with the patient, among other things. The idea appears to be to cure a perceived abuse by doctors who are "giving away" marijuana cards by certifying anyone who says he or she needs it. Those who hold elected positions of authority should be careful not to insert their own personal opinion into applying the law. Maybe that dynamic is what is happening with legislators who are inserting their own definitions of what a doctor-patient relationship has to look like in order for a suffering person to receive medical marijuana. I am not pretending to know what is in the hearts of those who are putting themselves in the shoes of the people who voted for the law. I do know that the founders who voted for independence committed treason when they signed that sacred document. Those who risked all that they were, all that they had and all that they hoped to be on the earth did so for the rest of us to try to perfect their democratic ideal. Those charged with enforcing and implementing the law, who insert their own personal opinion into their task fail to acquit themselves in a manner worthy of those sacrifices. Mike Nichols is author of the Michigan OWI Handbook for Thomson Reuters West Publishing, an adjunct professor of DUI Law and Practice at Thomas M. Cooley Law School, and a lawyer specializing in OWI/OWID cases and complex litigation in East Lansing, Michigan. Mr. Nichols attended and assisted with the policy statement from the criminal law section of the State Bar of Michigan at the bi-ennial policy conference on June 19, 2011. mnichols@nicholslawyers.net. Published: Thu, Jul 21, 2011