Final Arguments in Schedule I Hearing; Decision Expected in March

Final Arguments in Schedule I Hearing; Decision Expected in March

US Attorney Greg Broderick and defense attorney Zenia Gilg argue in front of Judge Kimberly Mueller. Drawing by Ron Mullins of Sacramento NORML.

Judge Kimberly Mueller subjected both prosecution and defense attorneys to pointed questioning in the final hour of a federal hearing to determine the constitutionality of the continued classification of cannabis under Schedule I. Judge Mueller, who declined to announce any ruling from the bench, indicated that she intends to release her ruling as a written opinion in about 30 days.

Much of Mueller’s questioning revolved around legal esotera which may nevertheless prove the hinge of the present case. Judge Mueller opened with what she called the “threshold question” of jurisdiction, noting that no court may rule on legal questions which are not properly before it. It was a principle which US Attorney Gregory Broderick returned to repeatedly, maintaining that the entire hearing is a waste of time when the question of cannabis’ legality is one properly for Congress and the President, not a federal judge. Yet despite Broderick’s protestations, Judge Mueller, who has already scheduled nearly a week of court time to the hearing, did not give any indication of sympathy to his position.

Mueller appeared to assign more credence to Broderick’s argument that even if she could properly hear the case, the ultimate outcome is irrelevant. About 20 minutes of the 1.5 hours of argument were devoted to the question of whether the debate was over cannabis’ status as a Schedule I controlled substance or just the drug’s status as a “controlled substance” in general. While the question may seem emblematic of the ability of attorneys to split hairs ad infinitum, its outcome may well prove the difference-maker in the fates of seven defendants: if the prosecution doesn’t have to prove that it is rational to hold cannabis in Schedule I specifically — arguing instead that it is rational to file it somewhere in the schedules of controlled substances in general — their case is much easier to make. It was a point that defense attorney Zenia Gilg pushed hard against, arguing that a ruling for her clients would not call for a de facto rescheduling but rather decriminalization — removing cannabis from the list of schedules entirely.

Even so, Judge Mueller’s questions from the bench did not appear to indicate a willingness to dispose of the matter on purely technical grounds. For example, she posed a scenario to Broderick which she called “hypothetical” but which seemed to betray a well thought-out plan: “Let’s assume,” she proposed to Broderick, “that I reach a decision on the merits, using either a rational basis test or what another judge has called ‘rational basis with bite'” — a reference to an intermediate level of equal protection scrutiny somewhere between the highly deferential “rational basis” test and the highly dubious “strict scrutiny” analysis. Under such a “rational basis with bite” analysis, the case’s seven defendants would fare much better than under the standard “rational basis” test, because instead of having to show that cannabis’ Schedule I status has no rational relationship to any legitimate government interest, they would merely have to demonstrate that its classification bears no “substantial” relationship to any “important” government interest — a significantly more favorable standard.

It was an analysis Broderick side-stepped entirely during his final argument, insisting instead that Judge Mueller apply a rational basis standard and arguing confidently from the lazy burden it places on his legal team. “It’s a low bar we have to clear,” the prosecutor continually reminded the judge, maintaining that if an idea were “imaginable” or even “debatable,” then that by itself meant that it was rational. In Broderick’s view, the Schedule I status of cannabis is not only debatable; it is in fact being debated — he pointed out that prosecution witness Dr. Bertha Madras and defense witness Dr. Carl Hart had held a debate on that very topic at a university campus in Florida mere days before the opening of the hearing. This prompted Judge Mueller to crack a round of questions regarding the credibility of the competing expert witnesses: “If I rule for you,” she asked Gilg, “do I need to find that Dr. Madras is not credible?”

“You don’t have to,” answered Gilg, “but you do have to look at the underlying basis of her decision,” noting Madras’ apparently contradictory positions of maintaining that the active ingredients in whole-plant cannabis had “tantalizing” promise of therapeutic benefit, but that the whole plant itself was categorically not medicine. “It’s like saying you can have the vitamins contained in a carrot,” Gilg analogized, “while saying you can’t eat the carrot.”

Such comparisons didn’t faze Broderick, who stuck to his message that even though the prosecution’s case wasn’t incredibly strong, they should still win on the basis of the low bar set before them. “If Congress heard all the testimony you have heard in this hearing,” he conceded to Judge Mueller, “they may very well decide not to put marijuana in Schedule I.” But because one could “conceive” or even “imagine” a basis for keeping a drug now legalized for medical use in 23 states in a schedule which declares it to have no medical use whatsoever, the prosecutor argued that it should stay there.

But Gilg retorted that just because one can conceive or imagine alternate explanations does not necessarily mean those explanations are rational, pointing out that members of the Flat Earth Society may just as easily convene to imagine reasons why the planet doesn’t look all that flat from space.

“The world is round,” Gilg concluded. “That’s a fact.”

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