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"we should scrupulously honor our Constitution's admonition that our traditional right to trial by jury is sacred"

Judge Lynch concurring in Lavelle v. MCAD, 426 Mass. 332; 688 N.E.2d 1331 (1997)

jurors have "not only have a right, but a duty....to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court."

John Adams


schedule

motion to dismiss and motion for jury instructions due march 10, 2008
hearing on these motions march 20, 2008 in rm. 10.

opening jury instruction

The People of the Commonwealth of Massachusetts, in forming a government of laws to better ensure their common protection and well- being, sought to preserve their liberty by reserving to the people the authority – in the form of the jury – to decide whether a fellow citizen should be publicly punished. This authority vests within the jury the right the right and power to return a verdict of ‘guilty’ or ‘not guilty’ in the case before them. This verdict encompasses a finding of facts proving beyond reasonable doubt each and every element of the offense as defined by statute with which the defendant is charged, but also your determination of criminal guilt based on those facts.

The People of this Commonwealth, in order to protect their freedoms, gave the legislature the power to create laws, the executive the power to enforce them, and the courts the power to interpret and apply them. But it remains the right of the People, entrusted to a jury of free citizens, to stand between the government’s law and an individual accused of its violation.

Today you are the people, a jury of peers. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, we the agents of the law are your substitutes and agents, and are at all times accountable to you. On this day in this court for this case you are the mind and heart of the people.

The massachusetts constition declares that no person be deprived of property, immunities, or privileges, or deprived of life, liberty, or estate, but by the judgment of his peers or the law of the land. So important is this right, that the legislature may make no law abridging the right to trial by jury for any one subject to infamous punishment. So great is this right it is not only recognized by the People of The Commonwealth of Massachusetts but by our nation as a whole, and as such in cases of common law no fact tried by a jury may be examined in any court of the United States. So important is this right that our founders our commonwealth's declaration of rights declared it sacred.


The reservation of this sacred right finds its most vital expression in your commission and responsibility to decide, in the light of the law as written by the legislature, enforced by the executive and interpreted by the judiciary, whether a particular application of the law warrants your verdict of criminal guilt. Yours is the power to pass judgment upon the question of whether a fellow citizen has committed a criminal act meriting public condemnation.

Your duties as jurors begin with a recognition of the accumulated wisdom embodied in my instructions regarding the law. They end with performance of your sacred role as the ultimate force for the protection and preservation of justice and liberty in our commonwealth.

Due process which i as judge will oversee shapes the case as it will be presented to you.

closing instruction

If you believe, that the prosecution has proved beyond reasonable doubt each and every element of the statutory offense as enacted by our legislature and as interpreted to you by me, and if you believe to a moral certainty, that the defendant’s proven conduct constituted a criminal act that deserves public condemnation and punishment, then you should enter a verdict of guilty.

If, on the other hand, you believe that the defendant’s conduct violated the letter of the law as i have given it to you but was not criminal – that it did not constitute a breach of the peace, threaten the public’s welfare or public order, or prejudice any of the rights of others – and that it does not therefore merit public condemnation and punishment, then you may enter a verdict of not guilty.


two areas need development; explaining the distinction betweein guilty on the facts and guilty at law the other is whether the law itself is a just law as it is being applied in the case before you

MOTION TO DISMISS OR IN THE ALTERNATIVE PERMIT DEFENDANTS TO INFORM



Now come the defendants and move this Honorable Court dismiss the charges against them on the grounds that G.L. c. 94C’s prohibition on the possession of marihuana violates their rights and liberties secured by the Constitution of the Commonwealth of Massachusetts, defendants move they be permitted without sanction to argue to the jury that in fulfilling their oath to, “well and truly try the issue between the commonwealth and the defendant, according to your evidence; so help you God” G.L. 278, § 4 is “the power of a juror to vote his or her conscience” even if at odds with all other jurors and the judges view of the facts and law, Commonwealth v. Hebert, 379 Mass. 752, 755-756 (1980)

MASSACHUSETTS CONSTITUTIONAL PROVISIONS

Preamble.

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

Declaration of Rights

Article 1. as replaced by Amendment Article CVI.

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

Article 2. It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

Article 4. The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America in Congress assembled.

Article 5. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.

Article 7. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

Article 10. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the commonwealth, or by a county, city or town, of more land and property than are needed for the actual construction of such highway or street: provided, however, that the land and property authorized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions.

Article 11. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

Article 12. No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.

Article 13. In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.

Article 14. Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

Article 15. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.

memorandum in support

Boston Globe 11/24/07: Marijuana Referendum Advances

Advocates of decriminalizing marijuana, banning greyhound racing, repealing the state income tax, and stripping out major portions of a major state development law appear to have cleared a major hurdle in their effort to hold statewide referendums on their issues next year.

The proponents had to gather at least 66,593 certified signatures by Nov. 21, equal to 3 percent of the total ballots cast in the 2006 gubernatorial election; each of the four groups appears to have done so, said Brian McNiff, a spokesman for the secretary of state's office.

The state's town and city clerks have until Monday to certify the signatures, and Secretary of State William F. Galvin has until Wednesday to count them.

But the burden for the advocates doesn't end there. If Galvin determines an initiative to have the requisite number of signatures, the Legislature has until the first Wednesday in May to make the proposals law. If lawmakers do not act, proponents have to gather another 11,099 signatures - half of 1 percent of the ballots cast in the 2006 gubernatorial election - by June 18.

Despite the difficult road ahead, supporters of the petitions that seemed likely to advance were jubilant.

"I think this was the real reason why the ballot process was created; this is a common-sense policy that is going to save $24.3 million a year in arrests and booking charges by creating a civil penalty system," said Whitney A. Taylor, chairwoman of the Committee for a Sensible Marijuana Policy, who said her group had collected more than 105,000 signatures in 349 of the state's 351 cities and towns.

The marijuana initiative would replace criminal penalties with civil penalties for people caught with an ounce or less of marijuana. She said 11 other states, including New York and Maine, have enacted similar laws.

Lester Grinspoon, Creating a sensible marijuana law

ALMOST HALF of American adults have tried marijuana, and the number of people who use it regularly has increased to about 15 million. This expanding use of marijuana can no longer be dismissed as simply a youthful fad that can be eliminated through the war on drugs.

Still, marijuana arrests account for nearly 44 percent of all drug arrests in the United States. According to the Uniform Crime Report, nearly 830,000 people were arrested in 2006 on marijuana charges, nearly a 15 percent increase over 2005. Nine out of 10 were arrested for mere possession.

Despite the increasing threat of arrest, the growing demands of employers for urine tests, and the ubiquity of the misinformation purveyed by the US government and the Partnership for a Drug-Free America, the number of Americans who experiment with or regularly use this substance continues to grow. So many people have discovered its remarkably limited toxicity and its versatility as a medicine that 12 states have now adopted legislation or initiatives that allow for its medicinal use and 12 states have decriminalized it by reducing penalties for possession of small quantities to a fine, with no arrest or jail penalty.

Massachusetts is considering decriminalizing minor marijuana offenses, with both proposed legislation and a proposed voter initiative.

research notes

from the concluding paragraph of porter

On the other point in the exceptions, the right of counsel to argue to the jury the points of law involved in the issue of a criminal trial, it necessarily follows as a consequence from the right of the jury to pass upon the law as well as the fact, in rendering their verdict. If, on the other hand, it be wrong for the jury to determine the law governing the case, against the judge, then the counsel ought not to be allowed to persuade them to do wrong; so that, if the jury are bound to take the law implicitly from the court, then neither argument of counsel nor explanation by the court, other than to lay down the law, would be fitting or necessary. And if there is no distinction in this respect, between civil and criminal issues, the counsel should argue the points of law to the court, and the court give the law to the jury, to be taken by them without deliberating thereon. But the uniform practice of counsel to argue the law to the jury, which was never before questioned or denied in our judicial history, clearly affirms the right of the jury to pass upon and determine, by their verdict, the law that is to govern the issue which they are sworn well and truly to try.


St. 1807, c. 140, § 15, provides that in a criminal case "The jury shall try … all criminal causes committed to them, and, after having received the instructions of the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in [**553] the issue, or they may, at their election, find a special verdict."


COMMONWEALTH v. LOWDER

SUPREME JUDICIAL COURT OF MASSACHUSETTS

432 Mass. 92; 731 N.E.2d 510; 2000 Mass. LEXIS 378

May 4, 2000

The text of former G. L. c. 278, § 11, offers us more guidance. Between 1855 and 1979, G. L. c. 278, § 11, provided in relevant part that the jury, "after receiving the instructions of [*96] the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in the issue, or they may, at their election, find a special verdict." 3 The court, by contrast, was to "superintend the course of the trials, decide upon the admission and rejection of evidence, upon all questions of law raised during the trials and upon all collateral and incidental proceedings, and . . . charge the jury." 4 It would be an understatement to say that the enactment of this language in 1855 was controversial. The language had originally been proposed [***9] as an amendment to the Massachusetts Constitution that failed in a close vote to win popular approval in 1853. The amendment was at least in significant part a response to the decision of this court in Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (1845), which held that juries are obliged to obey the instructions of judges on questions of law. See Comment, The Changing Role of the Jury in The Nineteenth Century, 74 Yale L.J. 170, 177-183 (1964); M.D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 608-610 (1939). In Commonwealth v. Anthes, 5 Gray 185 (1855), four of the six members of the court held that to the extent the statute conferred on the jury the power to determine questions of law against the directions of the court, the statute violated the State Constitution. See id. at 220, 222, 236 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined); id. at 251 (Bigelow, J.); Commonwealth v. Rock, 10 Gray 4, 5 (1857). Anthes made clear "that the jury in criminal trials have no rightful power to determine questions of law against the instructions of the court." Commonwealth v. Davis, 271 Mass. 99, 100, 170 N.E. 924 (1930) See Commonwealth v. Marzynski, 149 Mass. 68, 73, 21 N.E. 228 (1889).

FOOTNOTES

3 The special verdict was eliminated in criminal cases when the Rules of Criminal Procedure were promulgated. See Reporters' Notes to Mass. R. Crim. P. 27, Mass. Ann. Laws, Rules of Criminal Procedure at 254 (Lexis 1997).

4 We quote from R. L. 1902, c. 219, § 13, the version of the statute that was in force at the time of the codification of the General Laws. The differences between this version of the statute and older versions are not relevant to the decision of this case. There were no changes in the quoted portion between 1902 and 1979.


Chief Justice Shaw's opinion in Anthes distinguished sharply between questions of law and questions of fact: the former were for the judge to decide, the latter for the jury. See id. at 193-194, 198-199 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined). If there was any doubt after Anthes whether the sufficiency [*97] of the evidence to support a conviction was a question [***11] of law for the court to decide, that doubt was dispelled five years later in Commonwealth v. Merrill, 14 Gray 415 (1860), which made clear that judges have the power and the duty to direct verdicts in favor of criminal defendants when the evidence is insufficient to convict them. See id. at 418, citing Commonwealth v. Packard, 71 Mass. (5 Gray) 101, 103 (1855). Unlike its modern equivalent, the directed verdict at common law was not always a command that jurors were obliged to obey. 5 The decision in Merrill was perceived by some as a departure from this more modest understanding of the directed verdict. The decision was cited within a dozen years of its issuance as sole authority for the statement that, "although as a general proposition the sufficiency of the evidence is for the jury, yet, if it is found not to cover every part of the case, the court will, as matter of law, order the prisoner's discharge." [**516] 1 J.P. Bishop, Commentaries on the Law of Criminal Procedure § 128, at 76-77 (2d ed. 1872). See id. at § 977, at 600 & n.2, citing Packard, supra, and Merrill, supra. See also Comment, The Motion for Acquittal: [***12] A Neglected Safeguard, 70 Yale L.J. 1151, 1152 & n.8 (1961). By that time requests for directed verdicts in criminal cases were quite routine in Massachusetts. See, e.g., Commonwealth v. Certain Intoxicating Liquors, 105 Mass. 595, 598 (1870); Commonwealth v. Bakeman, 105 Mass. 53, 56-57, 60-61 (1870); Commonwealth v. Shepard, 83 Mass. (1 Allen) 575, 586-587 (1861). Cf. Oscanyan v. Arms Co., 103 U.S. 261, 263-264, 26 L. Ed. 539 (1880).

FOOTNOTES

5 In the words of one commentator, the early directed verdict "was either instruction on the law or advice on the facts, or a mixture of the two. It was not a device for taking a case from a jury . . . ." W.W. Blume, Origin and Development of the Directed Verdict, 48 Mich. L. Rev. 555, 561 (1950). See Quincy, Reports of Cases in Juries of Superior Court of Massachusetts Bay (1761-1772) 382 & n.1, 556, 558, 564-565, 566 (1865 ed.); 2 L. Wroth & H. Zobel eds., Legal Papers of John Adams 404-406 (1965).


[***13]  We said in a civil case that "[a] trial judge always has had power to direct a verdict provided the law required it." Bothwell v. Boston Elevated Ry., 215 Mass. 467, 477, 102 N.E. 665 (1917). This statement applies with equal force to criminal cases in light of the trial judge's historic power to determine questions of law for the protection of criminal defendants. Cf. Commonwealth v. Sheehy, 412 Mass. 235, 240, 588 N.E.2d 10 (1992). In other words, "the traditional understanding in our system" is "that the application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion." Jackson v. Virginia,  [*98]  443 U.S. 307, 317 n.10, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). See Commonwealth v. Anthes, 71 Mass. (5 Gray) 185 (1855); Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (1845). Cf. BMW of North Am., Inc. v. Gore, 517 U.S. 559, 573 n.17, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996).

It was only in 1963 that G. L. c. 278, § 11, was amended to provide that judges must enter verdicts for defendants in certain circumstances. See St. 1963, c. 569. [***14] The Commonwealth's argument accordingly fails to the extent it rests solely on the ground that judges do not have the power to direct a verdict apart from statute. Cf. Galloway v. United States, 319 U.S. 372, 389-395, 87 L. Ed. 1458, 63 S. Ct. 1077 (1943). The Commonwealth's argument fares no better to the extent that it rests on the notion that a judge's power to direct a verdict for the defendant manifests itself no earlier than the close of the Commonwealth's evidence. This notion lacks support in our case law as well as in reason. Cf. Oscanyan v. Arms Co., 103 U.S. 261, 265, 26 L. Ed. 539 (1880) ("Indeed, there can be, at this day, no serious doubt that the court may at any time direct a verdict when the facts are undisputed . . .").

In recent times we have repeatedly said without elaboration that a judge cannot be required to direct a verdict in a criminal case after the prosecutor's opening statement. See Rosenberg v. Commonwealth, 372 Mass. 59, 61, 360 N.E.2d 333 (1977); Commonwealth v. Sandler, 368 Mass. 729, 335 N.E.2d 903 (1975), and cases cited; Commonwealth v. Bader, 285 Mass. 574, 575, 189 N.E. 590 (1934). [***15] Compare Perry v. Carter, 332 Mass. 508, 509, 125 N.E.2d 780 (1955). If a judge lacked the power to direct a verdict after the opening, one might wonder why we did not say so in any of these cases. Cf. Commonwealth v. Dietrich, 381 Mass. 458, 460, 463, 409 N.E.2d 1288 (1980). This court had said decades earlier that a judge has the power to direct a verdict after an opening in a civil trial. See Hey v. Prime, 197 Mass. 474, 475, 84 N.E. 141 (1908); Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150 (1892); Howe v. Dickinson, 154 Mass. 494, 28 N.E. 910 (1891).

In Commonwealth v. Hare, 361 Mass. 263, 280 N.E.2d 138 (1972), we strongly suggested that a judge has the power to direct a verdict of acquittal after a prosecutor's opening. There we said that, "if the bill of particulars in the instant case in fact presents the total extent of the Commonwealth's proof, we think, without so deciding, that the allowance of a motion for a directed verdict might well be required at the conclusion of the Commonwealth's opening statement or at the close of the Commonwealth's case." Id. at 270. [***16] [**517] We made a like suggestion in Commonwealth v. Pope, 397 Mass. 275, 282 n.10, 491 N.E.2d 240 (1986), in which we said that a [*99] motion for a required finding of not guilty was "premature" when made at the close of the Commonwealth's opening statement. Accord Commonwealth v. Brusgulis, 398 Mass. 325, 333 n.15, 496 N.E.2d 652 (1986). We then said that "the judge need not have ruled on the motion until after the Commonwealth's evidence was closed" (emphasis added). Commonwealth v. Pope, supra at 282 n.10. 6


Counsel's right in criminal prosecution to argue law or to read lawbooks to the jury. 67 ALR2d 245.