Despite defense arguments that marijuana should be legal in Massachusetts, an editor from a leading pro-cannabis magazine and a lawyer from Washington, D.C., have learned firsthand that some in Boston feel otherwise.
In a highly unusual Boston Municipal Court trial, six jurors spent less than 20 minutes recently deliberating over the fate of Rick Cusick and attorney Keith Stroup before finding the pair guilty of smoking marijuana during a pro-pot rally on the Boston Common.
Cusick, 54, associate publisher of High Times magazine, and Stroup, 64, a D.C. lawyer and founder of the National Organization for the Reform of Marijuana Laws, are considered two of the nation’s most prominent advocates on the subject.
The men, who were featured speakers at the 18th annual pro-pot Boston Freedom rally last September, were caught sharing a joint by an undercover police officer assigned to patrol the event.
Rather than take a plea or assert a traditional defense at trial, both defendants took the stand in the case, presided over by BMC Judge Raymond G. Dougan Jr., and confessed that they were indeed smoking a joint when they were apprehended.
“The goal is not to win the case,” Stroup said days before the trial. “Our first goal was to challenge the constitutionality of the statute.”
But after the defense team, headed by Harvard Law School Professor Charles R. Nesson, made its case, a jury came back with guilty verdicts.
The defense had argued that a juror has the legal right to refuse to convict a defendant, even if he or she admits to the elements of a crime.
“At the end of the day, I had the opportunity to speak to eight citizens — real people. I wish I could have persuaded them,” says Nesson. “I feel bad that I wasn’t able to put it across more powerfully and be backed up by instructions that would tell the jury that it is their substantive job to determine whether a crime against our society has been committed, and not just their job to say that a technical violation has occurred.”
Nesson, who represented Stroup pro bono, says his client plans to raise several issues on appeal.
“I took the case to represent the client because the issues it raises are tremendously important,” he says. “Our claim is that there is no demonstrated rational basis for the criminalization of marijuana.”
Dougan opted to sentence both men to one day in the House of Correction. Because Cusick and Stroup were temporarily detained on the day of the rally, the judge gave them credit for time served.
Jake Wark, spokesman for Suffolk County District Attorney Daniel F. Conley, declined comment other than to say, “We tried this case as we would any other first-time marijuana offense.”
