In the middle of August last year, just after midnight on a near-empty stretch of sand along the ocean, a Beach Haven police officer saw what appeared to be someone using a lighter. Smoking is illegal on the beach, so the officer investigated.
The cop found two young adults, a man and woman, and saw the man try to hide something. During questioning the man handed over 8.36 grams of marijuana and smoking implements. The suspects, both college kids, were charged with possessing less than 50 grams of marijuana and drug paraphernalia.
Such cases are heard in a town’s municipal court, but the suspects' lawyers filed an action to have the cases dismissed by a county’s chief judge, arguing among other things, it was a minor drug bust and would create harm to the college students, who had high grade point averages, and have bright educational and professional futures.
And they won, in January.
The Ocean County Prosecutor’s Office, however, appealed the January dismissal, arguing the judge, Ocean County Assignment Judge Marlene Lynch Ford, was wrong to dismiss the cases as “de minimis,” or minor, infractions and she’d abused her discretion.
This time, the prosecution won.
A three-judge appeals panel overturned Ford’s decision and picked it apart in the process, saying Ford stepped out of bounds, and took issue with her view of the “changing societal attitudes” about possessing small amounts of marijuana.
The appeals decision flabbergasted the young man’s attorney, who picked it apart himself, and the state’s American Civil Liberties Union. Both say it’s a travesty of justice, a waste of time and money, and wonder why exactly Ocean County prosecutors fought to reinstate a municipal court case that could be moot in a matter of months – as New Jersey inevitably hurtles toward legalized marijuana.
“None of this decision makes sense. The war on drugs is tremendous failure and waste of money,” Michael Schreiber, attorney for the young man, said. “And the decision certainly seems to be inconsistent with what the public desires,” he said.
“It’s outrageous,” Amol Sinha, executive director of the New Jersey ACLU, which is on the forefront to legalize marijuana in the Garden State, said of the decision.
“We have a governor who campaigned on [legalizing marijuana] and still local law enforcement is taking steps to make arrests and ruin people’s lives."
And both questioned the timing of the Oct. 21 decision, days before a state ballot question seeking marijuana legalization.
The Ocean County Prosecutor’s Office’s declined an NJ Advance Media request for comment, and to speak with the assistant prosecutor who argued the case, William Kyle Meighan.
The appeals decision details all of Ford’s reasoning, which the judge – a former Ocean County prosecutor herself - starts by noting that, yes, marijuana remains illegal.
And Ford said she was concerned the defendants would likely continue such behavior despite any break they might get in the case. She also noted the drug paraphernalia the cops found – a marijuana grinder, glass pipe and lighters, which the young man claimed - distinguished them from someone who is say, caught right after being handed a joint to try for the first time.
Ford noted, though, there is an “evolving notion of the use of marijuana” and she believed the pot they had was for personal use.
Meighan argued for a conditional discharge, a diversionary program, which if completed successfully, would leave the defendants without a criminal record, and not impact their futures. He argued that if the college students were so intelligent, they should have known marijuana was illegal, and “if caught, there are consequences.”
Ford rejected that argument, finding a conditional discharge would indeed be more harm than the law was intended.
In declaring her discretion to rule the charges “de minimis,” Ford sided on the teens' futures, saying the purpose of such a ruling was to afford two otherwise law-abiding students to be free of a criminal conviction, “that would stigmatize an otherwise unblemished record.”
Ford referenced the revised, 2018 Attorney General Guidelines on municipal marijuana prosecutions, and found that a conditional discharge would interfere with the students internships, honors programs and “would have a deleterious effect upon their future employment and career opportunities,” the appeals decision says.
The appellate judges roundly said Ford was totally mistaken in her discretion.
They found the marijuana the defendants had was not minor because the related paraphernalia suggests it was not a casual, isolated event.
The appeals judges acknowledge the defendants have no criminal records, have achieved considerable academic success at their respective colleges, and participated in charitable events in their communities. But Ford gave those achievements “undue weight," the decision says.
The defense attorneys, Curtis Dowell argued for the young woman, never showed exactly how a conviction would harm their education or future professional lives, the appeals judges found.
“It was therefore an error in judgment for the court to conclude effectively that defendants are uniquely situated when compared with countless other defendants who face similar possessory marijuana charges,” the appeal says.
And one more thing, the decision says, Ford abused discretion when relying on “evolving notion of the use of marijuana” and the purported “changing societal attitudes” of possessing small amounts of weed. It’s still illegal, the appeals decision says, which Ford also noted.
Both Schreiber and Sinha both said repeatedly the decision is still absurd because New Jersey is likely headed for a 2021 with legalized marijuana, for which New Jersey voters will cast ballots in just a few days.
The appeals court, however, mentioned that too.
The defendants were 18 or over, but not yet 21, when arrested. “Even the proposed constitutional amendment legalizing the personal use of marijuana that is set for consideration by voters on November 3, 2020 would not legalize marijuana use for those under (21) like defendants,” the decision says.
And the appeals judges also brought up those Attorney General Guidelines, saying their interpretation showed they, “specifically proscribe the state from categorically refusing to prosecute marijuana related offenses.”
Nevertheless, Sinha says the decision violates the spirit of the guidelines, which he worked on crafting.
“The intention of the AG’s guidelines was prosecutors not damaging people’s lives,” Sinha said. “Was this decision worth messing with these kids' lives, right now?”
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Kevin Shea may be reached at kshea@njadvancemedia.com.
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