SPEECH Given at
CANNABIS FESTIVA
September 26, 1998
 
by Julian Heicklen
 
 
        Hi. I wish to thank Penn State NORML for the opportunity to speak
to you. I could tell you all of the reasons why marijuana should be
legalized. However you know those already. Instead I will speak to you
about the Marijuana Smoke Outs and the subsequent court proceedings.
A. HISTORY
        First let me give you some history. About 3 years ago, I became
aware of the enormous prison population in the United States. We are now
the number one police state in the world with 645 persons per 100,000
population incarcerated. Russia is second with 590. Many Western European
countries run under 100 incarcerations per 100,000 people.
        I became involved with many prison groups. I led a class in Talmud
for the Jewish prisoners at the local state prison. I became active in the
Pennsylvania Prison Society, CentrePeace, The Justice Fellowship, and
Project Change of Centre County. None of these organizations were active
enough for me. In 1996, I founded a citizens lobby organization called
Smart on Crime. The purpose of this organization is to reduce the prison
population. We came to the conclusion that the largest group of people that
should not be in prison are non-violent drug users. They constitute fully
1/3 of all people being sentenced to prison at the preset time. I contacted
many federal and state representatives about decriminalizing drug use. This
was futile. Even those legislators that agreed with me in part or whole
said that they would not vote to soften drug laws, because they wanted to
be reelected.
        In 1997, I also organized the Libertarian Party of Centre County.
This organization and Smart on Crime decided that the next approach should
be to go to the courts and convince a jury to nullify the law. This is an
accepted legal defense. To get into the courts requires being arrested for
a crime and having a jury trial. At noon on January 15, 1998, I smoked a
marijuana joint in front of 100 people at the main university gate. Much to
my surprise, I was not arrested. I repeated this 3 times at weekly rallies
until an arrest was made. I then continued the weekly rallies, but did not
smoke. I said that my goal was accomplished, and that I would not smoke
again as long as I received a fair, impartial, speedy trial in front of a
jury of my peers. Very soon, it became apparent that this was not to be the
case. At the 7th rally, I resumed smoking marijuana joints. I have been
arrested 11 times, six for smoking marijuana. See a history of the Smoke
Outs on my home page at http://www.personal.psu.edu/jph13.
        The issue here is not marijuana. Marijuana is the messenger, not
the message. The issue is whether we will live in freedom or under tyranny.
The most basic of all human rights is the right to your own body. The
lighted marijuana weed is the torch of freedom.
B. TRIAL IRREGULARITIES
1. Speedy Trial
        In Pennsylvania, a speedy trial is considered to be 6 months if the
defendant is incarcerated or one year if the defendant is not incarcerated.
I doubt if anyone considers this to be a speedy trial. How would you like
to spend 6 months in prison and then be found not guilty? In California, a
speedy trial is considered to be 30 days. In 1963, I was arrested along
with 260 others who were sitting in at a racially segregated housing
development in Torrance CA. We demanded speedy trials. The state said that
it could not prepare the cases for trial in 30 days. The judge dismissed
the cases.
        In Centre County, PA, I was first arrested by summons on February
13, 1998, for possession of marijuana on February 12, 1998. The preliminary
hearing was set for March 25, a delay of 40 days. I filed a request for a
speedy trial and suggested several dates and times during the period of
February 25-March 5, 1998, for a preliminary hearing. The court
administrator would only move the preliminary hearing to March 18. At the
hearing, dates were set for arraignment, pre-trial conference, and jury
selection, respectively, of April 21, May 26, and June 8, 1998. Because I
was going to Florida, I requested a continuance of the May 26 conference to
June 2. It was moved to July 17 (actually held on July 28 at my request),
and the jury selection was moved to August 3, 1998. At jury selection, the
trial date was set at August 20, 1998 (actually to be held on October 7,
1998, at my request). Thus the time set by the court for a speedy trial was
from February 13 to August 20, 1998; a delay of 6 months and 7 days. None
of this delay was caused by my requests for alternate dates.
2. Failure to Meet on Time
        My first preliminary hearing was called for 1:00 PM on March 18,
1998. In the morning I delivered "Meals on Wheels" to people shut in their
homes. I finished at 12:30 PM, and traveled from State College to the
courthouse in Bellefonte, a trip of 25 minutes. I was at the hearing
promptly at 1:00 PM. I had no lunch. Magistrate Alan Sinclair appeared at
1:20 PM and proceeded with another case. I left the courtroom to eat and go
home. I was informed that Magistrate Sinclair called my case at 3:00 PM.
When I was not there, a warrant for my arrest was issued. I was arrested
for failure to appear about 1 hour later and taken to Magistrate Carmine
Prestia. I explained to him that I had appeared, but that Magistrate
Sinclair did not appear, and that the wrong person was arrested. Magistrate
Prestia dropped the charges and rescheduled my hearing for March 25, 1998.
At that hearing, Magistrate Sinclair appeared at 1:25 PM and called my case
right away. At subsequent hearings, I was the first one called.
        The failure to meet on time is an indication of lack of
impartiality. The magistrates think that the defendants are beneath
consideration. All other professionals meet their clients on time. The
doctors are the worst, but even they do not keep someone waiting 2 or more
hours. And doctors, unlike judges, have real emergencies.
3. Failure to Indict by Grand Jury
        Pennsylvania courts do not use grand juries for indictment.
Amendment V of the U. S. Constitution states that no one can be held for
trial for an infamous crime without presentment of an indictment by a grand
jury. I am aware that the U. S. Supreme Court said that this provision of
the U. S. Constitution applies only to federal crimes and not to state
crimes. It is a mystery to me that this conclusion was reached.
Nevertheless, we can assume that it is the law of the land.
        My case is somewhat special in that the act that I committed is
deemed to be crime by both state and federal law. My contention is that it
makes no sense that the criterion for a fair trial depends on who happened
to make the arrest. If I had been arrested by federal law enforcement
agents, a grand jury would have been convened. Therefore I demanded a grand
jury hearing.
        Whether or not you accept my argument for a grand jury hearing, I
am entitled to ask for it at my preliminary hearing. At two preliminary
hearings Magistrate Bradley Lunsford found me in contempt of court for
making the request. At my other two preliminary hearing, Magistrates
Sinclair and Hoffman had no problem with me making the statement.
5. Manufactured Charges
        For all of my six arrests for smoking, the police officers filed
charges of possession of a small amount of marijuana for personal use. No
mention was made of possession of paraphernalia or intent to distribute.
For my first arrest Magistrate Prestia added the made-up charge of
possession of paraphernalia. At the preliminary hearing, Magistrate
Sinclair bound me over for trial for possession of both marijuana and
paraphernalia.
        District Attorney Ray Gricar added the charge of intent to
distribute for all six of my cases. I have no idea where he got this idea.
It came entirely from his imagination. Judge Brown informed the jury at my
jury selection of August 3, 1998, that I had been charged with possession
of a small amount of marijuana for personal use and with intent to
distribute. I objected, but he refused to withdraw the charge. The minds of
the jury members now have been poisoned with a false charge.
6. Denial of Defense
        Judge Brown has issued an order prohibiting me from using the
defenses of jury nullification or justification. Both are recognized legal
defenses. The 1790 Constitution of Pennsylvania explicitly states that the
jury has the right to nullify the law, and the U. S. Supreme Court
repeatedly has upheld this opinion.
        Several state constitutions, including the Georgia Constitution of
1777 and the Pennsylvania Constitution of 1790 specifically provided that
"the jury shall be judges of law, as well as fact." But Judge Brown says
that Jury nullification is not a permissible defense.
        In Pennsylvania, Supreme Court Justice James Wilson noted, in his
Philadelphia law lectures of 1790, that when "a difference in sentiment
takes place between the judges and jury, with regard to a point of
law,...The jury must do their duty, and their whole duty; They must decide
the law as well as the fact." But Judge Brown says that Jury nullification
is not a permissible defense.
        In 1879, the Pennsylvania Supreme Court noted that "the power of
the jury to be judge of the law in criminal cases is one of the most
valuable securities guaranteed by the Bill of Rights." But Judge Brown says
that Jury nullification is not a permissible defense.
        John Jay, the first Chief Justice of the U. S. Supreme Court stated
in 1789: "The jury has the right to judge both the law as well as the fact
in controversy." But Judge Brown says that Jury nullification is not a
permissible defense.
        Samuel Chase, U. S. Supreme Court Justice and signer of the
Declaration of Independence, said in 1796: "The jury has the right to
determine both the law and the facts." But Judge Brown says that Jury
nullification is not a permissible defense.
        U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902:
"The jury has the power to bring a verdict in the teeth of both law and
fact." But Judge Brown says that Jury nullification is not a permissible
defense.
        Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court,
stated in 1941: "The law itself is on trial quite as much as the cause
which is to be decided." But Judge Brown says that Jury nullification is
not a permissible defense.
        In a 1952 decision (Morissette v United States), the U. S. Supreme
Court recognized the powers of juries to engage in nullification. The court
stated:
        "Had the jury convicted on proper instructions it would be the end
of the matter. But juries are not bound by what seems inescapable logic to
judges....They might have refused to brand Morissette as a thief. Had they
done so, that too would have been the end of the matter."
But Judge Brown says that Jury nullification is not a permissible defense.
        In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the
Court said: "The pages of history shine on instances of the jury's exercise
of its prerogative to disregard instructions of the judge." But Judge Brown
says that Jury nullification is not a permissible defense.
        Likewise, the U. S. Supreme Court in Duncan v Louisiana implicitly
endorsed the policies behind nullification when it stated: "If the
defendant preferred the common-sense judgment of the jury to the more
tutored but less sympathetic reaction of the single judge, he was to have
it." But Judge Brown says that Jury nullification is not a permissible
defense.
        In recent years, jury nullification has played a role in the trials
of Mayor Marion Barry of Washington, DC for drug use, Oliver North for his
role in the Iran-Contra Affair, and Bernhard Goetz for his assault in a New
York City subway. But Judge Brown says that Jury nullification is not a
permissible defense.
        A detailed discussion of jury nullification is given on my home
page at http://www.personal.psu.edu/jph13. Go to my home page and click on
Drugs and Crime. On that page is a link to Jury Nullification. Incidentally
more detailed information about the Marijuana Smoke Outs and my trials is
given on the link to Smoke Outs.
        The Jury Nullification article was given to Judge Brown in a motion
that I filed. Joe Devecka, one of my attorneys, checked all of the cases
mentioned in my paper, and assured the judge that they were correct.
        Judge Brown also has prohibited me from presenting documents giving
information about marijuana. These documents include commission reports.
7. Denial of Video Recording
        I informed the court administrator that I would have my own camera
man taking video camera pictures of all court proceedings. The Court
Administrator, Maxine Ishler, advised me that it was against Pennsylvania
law to have cameras in the court room. I appealed to the Court in a motion
to ignore this law, because it conflicts with my right to both a public and
fair trial. I needed video pictures for appeal purposes, because part of
the testimony involves visual impressions and witness gestures.
8. Witnesses Denied
        I informed the court that I would have three expert witnesses
testify. These are:
a. Lester Grinspoon, Associate Professor of Psychiatry at Harvard Medical
School. Professor Grinspoon has written several books on Marijuana
b. John Morgan, Head of the Department of Pharmacology at CCNY Medical
School. Professor Morgan has made a career of studying the medical effects
of marijuana and has written and lectured extensively on the subject.
c. William Regelson, Professor of Oncology at the University of Virginia
Hospitals. Professor Regelson prescribes marijuana for his chemotherapy
patients, even though it is a crime to do so.
Resumes and bibliographies of all three expert witnesses were presented to
Judge Charles C. Brown, Jr. at the pre-trial conference of July 28, 1998.
He did not look at the submitted material. He ruled that I could not have
expert witnesses testify.
        I asked for immunity from prosecution for illegal users of medical
marijuana that would testify on my behalf. Immunity request denied by Judge
Brown.
        District Attorney Ray Gricar filed written accusations that I was
charged with "Intent to distribute" in all 6 cases. No police officer,
magistrate, or other court official filed such a claim. At the preliminary
hearings, I was not bound over for trial on those charges. At the
arraignments, I was not arraigned on those charges. However Judge Brown
repeated those charges to the Jury after it had been selected on August 3,
1998. I subpoenaed District Attorney to appear as a defense witness at my
trial of October 7, 1998. He had the subpoena quashed by Judge Brown. This
denies me my Amendment VI rights of the U. S. Constitution, which states in
part: "In all criminal prosecutions, the accused shall enjoy the rightŠto
be confronted with the witnesses against him; to have compulsory process
for obtaining Witnesses in his favorŠ"
9. Consolidation of Cases
        Judge Brown consolidated my first four trials over my oral and
written objections. The four incidents occurred on four different days in
different police jurisdictions. The evidence and arresting officers were
different in these incidents.
10. Jury Rigging
        The original jury pool for the August 3 jury selection consisted of
400 persons from Centre County. Only the names and addresses of the jury
pool were provided by the Court. Of the population of adults in Centre
County, 11.8% live in University Park. This means that the expected number
of jury pool members from University Park is 47. Any number below 35 would
be a statistically significant deviation (2s). The actual number of
University Park residents in the jury pool was 4.
        At jury selection on August 3, 1998, the venire had been reduced
from 400 to 147. Of these, 142 provided their ages. The expected number of
University Park Residents is 17. Any number below 8 would be a
statistically significant deviation (2s). The actual number of University
Park residents in the venire was 0.
        The age distribution of adults (over 18 years of age) is 24.1 %
within the ages of 18 and 21 and 55.1% within the ages of 18 and 34. For
the 142 people whose age was listed, the expected values between 18-21 and
18-34 years of age, respectively, are 34 and 78. Statistically significant
deviations (2s) occur for numbers below 21 and 62, respectively. The actual
number of individuals in the respective age groups was 4 and 29.
        I had asked for data about sex, race, and religion for each juror,
but this information was not provided
        Before jury selection on August 3, 1998, Judge Brown announced that
the trial date was set for September 21, which was Rosh Hashanah. I
objected. At the pre-trial conference, I had informed both the court
administrator and Judge Brown that date was unacceptable. The court
administrator said that was too bad; the date would be September 21, 1998.
Judge Brown asked all members of the venire to excuse themselves if this
date was inconvenient for them. Of course all the Jews were excused. Three
hours after the completion of jury selection, Judge Brown changed the trial
date to October 7, 1998.
        For jury selection, Judge Brown asked the questions from lists
provided by the prosecution and defense. Normal procedure in this court is
to allow the attorneys to ask their own questions. I provided 15 questions,
of which Judge Brown covered 10 in his questioning. Among the questions
that Judge Brown did not cover were questions regarding attitudes and
experiences with Jews as well as involvement with pro-drug prohibition
organizations.
        My jury of 14 members contains no residents of University Park, no
Jews, no persons of color, and no-one between the ages of 18-21. There are
only two members below the age of 35, even though the Centre County
population is 55.1% below this age. I do not know if there is an active
anti-Semite or active drug prohibitionist on the jury.
11. Trial Length
        At the pre-trial conference of July 28, Judge Brown set the length
of the trial at 1/2 day without consulting either the prosecution or
defense staffs. My opening statement is several hours. I have a 7-hour
videotape of the Marijuana Smoke Outs to present. I intend detailed
cross-examinations of the prosecution witnesses. I have 23 of my own
witnesses to question, and I have a closing statement to make. I will not
be allowed to present my case at all.
12. Denial of Evidence
        The evidence seized by the police was sent to the State Crime
Laboratory for testing. The complete reports given to me were: "The
contents of item 1.1 weighed (amount given) and contained marihuana
(Schedule I)."
        Repeatedly, I have asked for all supporting information,
documentation, laboratory reports, and data for both the test and control
samples. Specifically, I need to have the dates on which the tests were
run, descriptions of the tests with specific operating conditions, which
compounds were tested, and the results of the test (not the operator's
conclusion). Further I need the dates on which the reports were written,
the dates on which they were sent to the police, which police officers
received them with dates of receipt, the dates on which they were forwarded
to the District Attorney, and the dates on which they were received by the
District Attorney's office.
        I have received none of this information.
13. Denial of Transcripts
        At the pre-trial conference of July 28, 1998, I provided my own
court reporter, as I had done at the preliminary hearings. I was informed
that she would not be allowed to record the proceedings of either the
pre-trial conference or jury selection, because the Court had provided its
own court reporter. I was assured that I would be able to obtain
transcripts of the proceedings.
        On September 18, 1998, I contacted the court reporter about
obtaining transcripts of the pre-trial conference and jury selection. She
informed me that she was too busy to provide them until after the trial
date of October 7, 1998.
        I have filed a motion with the Judge requesting the transcripts,
but no action has been taken as of September 24, 1998.
        What can you do to rectify this situation? The price of justice is
eternal publicity. Write letters to every publication that you can. Please
attend my trial on October 7, 1998, at 9:00 AM at the Centre County
Courthouse in Bellefonte. Thank you.