On Nov. 29, a Mesa County jury found Brenda Maggio, 60, not guilty of all charges related to marijuana possession over the legal limit and intent to distribute 30 pounds of weed. Her son, Javier, took a plea bargain instead of chancing it with a jury.
In recent years, juries have become incredibly powerful agents against pot prohibition. Colorado juries are known for acquitting defendants charged with weed DUIs, especially if the defendant (1) is a medical patient and (2) didn't fail the roadside tests. In other states with reformed pot laws, juries have acquitted not only medical patients, but cultivators and distributors as well.
Even the New York Times jumped into the fray in 2011, with an op-ed piece urging all American juries to find weed defendants "not guilty" regardless of whether the defendants broke laws on the books. Juries can wield this power using a little-known constitutional right called "jury nullification."
Maggio's defense attorney, David Eisner, did not request jury nullification, although he did unsuccessfully request that the judge dismiss all charges in September. Instead, he argued his client never broke the law in the first place. In Colorado, neither medical nor recreational regulations for home grows cap how much cannabis a plant can produce. Only the number of plants is limited: 6 for recreational grows, and up to 99 for medical (with a doctor's signed recommendation).
Brenda and Javier were charged in 2013, after neighbors called in a report about a "suicidal woman," notes The Daily Sentinel. Once the cops arrived, they smelled weed, and declared the skunky aroma probable cause to search the home. (Ironically, had the cops shown up after the summer of 2017, the Maggios may have been entirely in the clear. In July, a Colorado appeals court declared that the smell of weed is no longer probable cause.) The subsequent search led to confiscating over 30 pounds of product. Maggio refutes the claim that the police showed up at her home due to calls regarding a "suicidal woman." She says the cops came to follow up on a "wellness check" after a dispute over a phone call concerning an IRS hold.
Thirty pounds of weed is a lot of weed. To put this in perspective, 30 pounds is about 480 ounces. If you split that 480-ounce bag into eighths, you'd have just over 3,800 eighth-baggies. In Colorado, medical patients can legally possess up to 12 ounces at a time. Recreational customers can only possess up to a single ounce.
But when it comes to weights and weed busts, the numbers aren't that clear cut. Twelve ounces of what, exactly? A dozen ounces of cannabis flower is one thing, but what about a concentrate, which can pack over three times as much THC into the same weight? How are medicated patches factored into this weight limit? Edibles?
The legal ambiguities regarding weights became the fulcrum for Eisner's case. As he argued in court, there are no weight limits in Colorado, so long as the cannabis comes from a "legal grow." That's because a grow will generate a lot of refuse and discarded parts. Although the remnants may contain trace amounts of THC, they're not exactly usable.
"If a patient has processed a portion of a plant to have two ounces of usable form of marijuana but still has two untouched mature plants, along with the remainder of the third mature plant, what should the patient do?" Eisner wrote to District Judge Gretchen Larson, according to The Daily Sentinel. "There is no guidance in the statutes or the amendment of how the remainder is to be used."
During a phone interview with MERRY JANE, Brenda explained that she grew such a high volume of cannabis because she requires ultra-potent ethanol-extracted oil — otherwise known as Phoenix Tears — to relieve debilitating pain, swelling, and inflammation on her spine caused by a devastating car accident several years ago. Brenda, a former Navy nurse who worked at the Walter Reed National Military Medical Center, is fearful of using conventional pharmaceuticals to treat her injuries, as she believes they would exacerbate liver damage caused by another medical condition she’s grappling with – acute intermittent porphyria. Without cannabis oil, she has issues simply sitting still. With weed, she can walk around, tend to her garden, and otherwise live a functional, fulfilling life.
"I can't grow anything small," she says. "That's what's kept me alive. It's a miracle I'm here."
Fortunately for Maggio, the jury understood many of the nuances regarding medical marijuana and home grows. That's not always the case, and many Americans, if not most, see jury duty as a burden. It's time-consuming, and it doesn't usually pay until after day three. The pay is pretty pitiful, too. Yet anyone called to jury duty could be the deciding factor as to whether an otherwise respectful, law-abiding citizen is guilty of breaking cannabis-related law.
"If you are ever on a jury in a marijuana case, I recommend that you vote 'not guilty' — even if you think the defendant actually smoked pot, or sold it to another consenting adult," writes Paul Butler in the New York Times piece. "As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer."
To drive the point home, Butler mentions the late Supreme Court Justice Antonin Scalia, a rabid right-winger who was no friend of pot, but believed every juror "'can ignore the law' if the law 'is producing a terrible result.'"
Despite Brenda's full acquittal, her life was upturned by the court battle. Her son is currently on probation as part of his plea deal. She claims the loss of medicine and the court costs took their toll on her, and without another miracle, she will remain financially insolvent.
"This is why people don't fight it," says Brenda, "because they fuck you. There's hell to pay."