On August 20, the Vermont Supreme Court ruled in the case of State of Vermont v. Sue Thayer. Below is Chief Justice Reiber’s dissenting opinion with the citations omitted for clarity. His evaluation captures the necessity defense, and my mother’s arguments, perfectly.

¶ 14.         REIBER, C.J., dissenting. Defendant’s oldest son was diagnosed with leukemia in 2002, endured chemotherapy, radiation, and five bone-marrow transplants, and died in 2005.  During the course of his illness, he grew and used marijuana to ease the side effects of cancer treatments.  Meanwhile, defendant’s younger son had a medical emergency when he was an infant.  This left his kidneys scarred and led to chronic fatigue and severe nausea.  Despite following all medical advice, he remained extremely ill.  When he began using marijuana, however, he, like his older brother, experienced an increased appetite and, in turn, improved energy and vigor.  Although marijuana is not a cure, it has relieved his worst symptoms.  The State does not dispute that the son’s already declining kidneys “will fail completely,” and his chronic wasting disease will prove fatal.

¶ 15.         The issue before the Court is simply this: what must defendant proffer before being entitled to a jury instruction on the necessity defense?  In addressing this issue, the majority makes two related errors.  First, it errs by conflating the burden of production with the burden of persuasion: the majority erroneously requires defendant to bear a greater burden than required to present her necessity defense to a jury.  Although criminal defendants have the ultimate burden of persuasion in proving the necessity defense by a preponderance of the evidence, the necessity defense should be submitted to a jury whenever a criminal defendant carries her burden of production by “establishing a prima facie case on each of the elements of the affirmative defense.”  Where a criminal defendant offers proof supporting the elements of the defense, questions of reasonableness and credibility are for the jury to decide.  This brings us to the majority’s second error, which is to usurp the jury’s function by determining what course of action was reasonable for a mother whose son has a chronic illness.  It is the jury’s province to weigh the persuasiveness of the evidence and make determinations of credibility and reasonableness.  Because defendant has offered sufficient proof on each element of the necessity defense, I respectfully dissent.

¶ 16.         The necessity defense is one that typically should be heard by a jury and should not be excluded pretrial.  In my view, the State’s arguments did not meet the high threshold required to have the necessity defense excluded pretrial, and the trial court therefore erred in making such a ruling.

¶ 17.         The necessity defense may only be precluded pretrial where the facts in defendant’s offer of proof, taken as true, cannot sustain the defense. Here, defendant need only present sufficient evidence to “raise a question of fact for the jury” as to whether it was “reasonably conceived by her to have been a necessity” to grow marijuana plants. If a reasonable juror could conclude that each element of the necessity defense was present, the trial court’s decision must be overturned.  Although deficiencies in defendant’s evidence may appear at trial, defendant proffered sufficient proof on each element, and, as a result, the trial court’s foreclosure of such evidence constituted reversible error.

¶ 18.         The necessity defense has four prongs:

(1) there must be a situation of emergency arising without fault on the part of the actor concerned;

(2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;

(3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and

(4) the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.

¶ 19.         The issue of whether the trial court properly excluded the necessity defense is a pure question of law.  We review questions of law de novo.  Defendant made the following offer of proof regarding the required elements of the necessity defense.

¶ 20.         With respect to the first prong, requiring the situation to be an emergency, defendant asserted in her submission to the trial court that her son has a progressive disease with symptoms of wasting and that conventional medical approaches and dietary modifications have not worked.  Defendant offered her son’s physician to testify about the progression of his disease and its severe consequences, including the prognosis that he will eventually experience kidney failure.  The trial court held that this situation was not an “emergency,” but failed to explain why this was so.  If the serious illness of a child, which ultimately leads to death, is not an emergency, what is?  Because defendant offered reasonable proof that this was a critical health issue for her child, the jury should have had the opportunity to determine whether it reached the level of an emergency.

¶ 21.         Defendant also offered proof concerning her belief of the imminence of the harm, the second prong.  The trial court stated that because the harms sought to be avoided were long-term, the danger was not imminent enough to warrant defendant’s actions.  The court cited State v. Warshow for this proposition.  But our holding in Warshow depended upon facts that are not present here.  In Warshow, the defendants protested outside a nuclear power plant; when asked to leave, they refused and were arrested.  Before trial, they sought to present evidence regarding the dangerousness of the plant—witnesses to testify regarding the dangers of low-level radiation, nuclear waste, and nuclear accidents—which they argued would establish the necessity defense.  The trial court did not allow the defense, in part because the defendants did not sufficiently demonstrate imminent danger.  The defendants argued that they acted to foreclose the chance or possibility of accident.  On appeal, this Court held that such dangers were not imminent enough to justify criminal activity. There was no evidence of an impending accident and no evidence of past accidents from which to draw an inference that there may be an imminent danger.  We held that “[t]his defense cannot lightly be allowed to justify acts taken to foreclose speculative and uncertain dangers.  Its application must be limited to acts directed to the prevention of harm that is reasonably certain to occur.”

¶ 22.         Here, by contrast, defendant proffered ample proof that the outcome of her son’s chronic kidney disease, without treatment, was anything but speculative or uncertain.  Her son was already experiencing severe nausea, weight loss, and declining vigor.  He was increasingly less able to build his strength and resist the disease.  The emergency’s imminence need raise only a reasonable expectation of harm. Here, a juror could reasonably conclude that defendant had a reasonable belief that her son would die if she did not provide him with the only effective treatment she and her doctor had found—marijuana.

¶ 23.         Defendant also proffered sufficient proof regarding the third prong, which the majority latches onto as being dispositive of the issue.  The majority today holds that no reasonable juror could find that defendant reasonably believed that there were no other options in treating her son’s disease.  Ante, ¶ 11.  The problem with the majority’s conclusion is that it involves making a credibility assessment, one that properly lies with the jury.  The majority states that it is unreasonable to believe that defendant did not have time to create a compliant indoor growing facility in the three years that the medical-marijuana law was in place.  The Court, however, must “take as true” defendant’s offer of proof when making a determination regarding what a reasonable juror could find. The majority wrongly makes a determination as to the reasonableness of defendant’s justification and suggests that defendant “proffered nothing to actually demonstrate that indoor cultivation was impossible or impractical for her.”  Ante, ¶ 11.  This is a mischaracterization.  In fact, the trial court had a memorandum before it in which defendant stated that “[t]he limit on [the number of] plants . . . was particularly challenging from a technical standpoint.”  She elaborated that “essentially two separate grow spaces would have to be created in the house,” research was needed on both the equipment and techniques necessary to grow the plants indoors, the facility would need to be secure, and her son would need to have “continued access to a secure, safe supply of marijuana.”  The trial court had to take defendant’s statements about the difficulty of building the indoor facility as true when asking whether a reasonable juror could have found that defendant reasonably believed alternatives were not available.

¶ 24.         Further, the trial court’s suggestion that “there were not only legal means of medical treatment which could have reasonably been attempted, but there was also a legal means of cultivating marijuana” is faulty.  This is not the issue.  Defendant, by raising the necessity defense, concedes that she broke the law.  The bare fact that there are legal means of medical treatment and cultivation of marijuana is of no consequence.  The issue is whether she acted reasonably in determining that none of those legal means was of use in preventing her son’s further decline.  Here, taking defendant’s proffer as true, a reasonable juror could conclude that a mother with an ill child acted reasonably in deciding that all other avenues for saving the child’s life were foreclosed.  That question, therefore, should have gone to the jury.

¶ 25.         Finally, with respect to the fourth prong—that the injury resulting from the emergency must be of sufficient seriousness to outmeasure the crime—defendant’s proffer satisfied this requirement.  At the heart of the necessity defense is a difficult value judgment.  A violation of a criminal statute is no small matter, but neither is a child’s illness, particularly when, as here, that illness is life-threatening.  Defendant proffers that she was placed in the hapless position of having to choose between following the law and saving—or at least prolonging—the life of her child.  A reasonable juror could conclude that the life of a child outmeasured the seriousness of committing the crime of cultivation of marijuana.  For that reason, the question was for the jury.

¶ 26.         It is telling that many of our previous decisions denying the necessity defense are nothing like the present case.  Most involve driving under the influence (DUI), while many out-of-state decisions involve civil disobedience.  Where a defendant argued that it was necessary to trespass on a test-firing facility to prevent the testing of guns, in turn to prevent the deaths of civilians in El Salvador, we denied the defense because the defendant could not have believed that his actions would have a direct causal effect.   Where a defendant did not tag a deer because he was afraid the tag would become dislodged—in effect, committing the crime to avoid committing the crime—we held that each of the elements of the necessity defense was missing. Where a defendant claimed that it was necessary to take the wheel from his seventeen-year-old nephew who had stalled the vehicle in the middle of the road, we held that the defense was not available because the defendant’s own conduct—his self-induced intoxication requiring his nephew to drive—created the emergency.  Where a defendant claimed necessity for DUI because his child was missing earlier in the day, we held that no emergency existed at the time he was arrested because the defendant had already found his son.

¶ 27.         In each of these cases, we held that the proffering party failed to make out a prima facie case on at least one of the elements and was thus not entitled to an instruction on the necessity defense.  Courts, however, do not always deny a necessity defense jury instruction, even in DUI cases. In Shotton, the defendant was arrested for DUI, but claimed necessity because she was badly injured and was seeking medical assistance.  She said that she had been drinking and her husband assaulted her and pushed her down a flight of stairs.  She further testified that no one was home but her husband, her telephone was disconnected, and the neighbors’ homes were a short walk away, but she did not want to walk and risk finding no one home at those houses.  She stated that she was driving to the hospital when she was pulled over.  We explicitly noted that

the jury should have had the opportunity to weigh the reasonableness and credibility of all the evidence, and to decide if it was sufficient to establish the defense of necessity.  It was the function of the jury to determine first whether defendant was driving while under the influence of intoxicating liquor, and if she was, then to determine whether she was justified in doing so because of necessity.  By refusing to charge the jury on the second issue, the trial court committed reversible error.

¶ 28.         While it is true that the defendant in Shotton had other avenues available to her—for example, she could have walked to a neighbor’s house to use the phone, even if no one was home—we held that it is up to the jury to decide issues of reasonableness and credibility.  Id.  We recognized that, although the jury could have chosen to believe the State over the defendant, the trial court nevertheless committed reversible error by refusing to instruct the jury on the necessity defense.  The same principle applies in this case.  Defendant should have had the opportunity to present the necessity defense to the jury to determine issues of reasonableness and credibility.

¶ 29.         Although the necessity defense has often been used in cases where a defendant disagrees with government policies and trespasses, pickets, or otherwise displays disagreement in illegal ways, this is not a civil disobedience case.  The majority claims that defendant justified breaking the law “based on her disagreement or disapproval of the law’s provisions.”   Ante, ¶ 12.  The majority analogizes this case to a civil disobedience one, citing Planned Parenthood of Mid-Iowa v. Maki for the proposition that the defense cannot be used to “excuse criminal activity by those who disagree with the policies of the government.”  I agree that, typically, disagreement with government policy does not make criminal actions noncriminal.  Nevertheless, that is not the underlying tension of this case.

¶ 30.         Although defendant conceded in her memorandum to the trial court that she was “dismayed” by many of the statutory provisions in the medical-marijuana law, being dismayed with the law was not her motive for growing marijuana in illegal quantities.  Nowhere in the record does defendant state that her purpose in growing marijuana was to protest the provisions of Vermont’s medical-marijuana law.  Rather, it was her son’s illness that she felt necessitated breaking the law.  Defendant was not growing marijuana to achieve political ends—thus, the reasoning for barring civil disobedience defendants from using the necessity defense is inapplicable.

¶ 31.         The trial court also erred in concluding that the necessity defense was legislatively precluded here.  We have previously held that the necessity defense is not applicable if it has been precluded by the Legislature.  Nevertheless, here the Legislature did not preclude the necessity defense.

¶ 32.         The Legislature has made a determination of values in this arena.  It has determined that marijuana has therapeutic uses.  Specifically, the Legislature has recognized that marijuana can be used to “alleviate the symptoms or effects of a . . . debilitating medical condition.”  It has created a review board whose duties include “review[ing] studies, data, and any other information relevant to the use of marijuana for symptom relief.”  In enacting its therapeutic use of cannabis act, 2003, No. 135 (Adj. Sess.), the Legislature created a distinction between the medical and nonmedical use of marijuana.  While protecting registered patients and caregivers from a measure of criminal prosecution, it did nothing to alter existing criminal penalties for marijuana possession and specifically enumerated restrictions on even the legal use of the drug.  Thus, the Legislature recognized and permitted the limited medical use of marijuana for seriously ill people.

¶ 33.         The trial court incorrectly concluded that the Legislature must have intended to preclude the necessity defense because it “has twice made a deliberate choice as to the values at issue concerning the legal growth of marijuana and has decided not to include an exception for the defense of necessity.”  The trial court’s reasoning does not withstand analysis.  In Vermont, the necessity defense emanates from the common law.  We presume that the Legislature has not overruled common law doctrines unless it does so explicitly.  Here, as the trial court noted, the medical-marijuana statute says nothing about the necessity defense.  But, contrary to the trial court’s ruling, the legal significance of this omission is that the common-law defense has not been overruled and is therefore still available to defendant.

¶ 34.         The trial court further stated that, although it sympathized with defendant’s situation, it was “bound to apply the law as enacted . . . and not as it could have been enacted.”  This is, however, the precise purpose of the necessity defense.  The question, then, is whether the Legislature would formally make an exception for a mother like defendant who is trying to save her son’s life by growing medical marijuana.  Given the purpose underlying the law, as expressed by the Legislature, I cannot say that the Legislature intended to preclude the necessity defense here, and I would therefore send this issue to the jury.

¶ 35.         One of the many sad ironies of today’s decision stems from the fact that the majority’s analysis rests entirely on defendant’s failure to follow the precise contours of a relatively recent statute that aimed to decriminalize certain uses of medical marijuana.  Had defendant been arrested before Vermont’s medical-marijuana law went into effect, I imagine that the majority would reach a different decision today, as there would be no rationale for preventing defendant from presenting the necessity defense to the jury.  Now, after the Legislature has clearly shifted its position to allow some use of medical marijuana, the majority concludes that defendant cannot avail herself of the necessity defense since she has not followed the mandates of that law.  The irony is that a statute that aimed to decriminalize certain uses of medical marijuana has effectively criminalized defendant’s actions in this case.

¶ 36.         Ultimately, this is a case in which the necessity defense should be heard by a jury.  Indeed, it is a case where defendant’s actions cannot be explained in any way other than through a presentation of the necessity defense.  I worry that today’s ruling will lead to a trial where defendant’s actions will be viewed in a vacuum and where she will be treated as a run-of-the-mill drug possessor, when, in fact, according to defendant, she is a loving mother who simply wishes to provide her son with the best medical treatment available to avoid losing him like she lost her first son.  Ascertaining the “ultimate truth or falsity” of defendant’s necessity defense is “the principal mission of the jury,” and the trial court should have squarely presented the defense to the jury so that they could “confront it, consider it, and resolve its truth or falsity by their verdict.”  I therefore respectfully dissent.

¶ 37.         I am authorized to state that Justice Johnson joins this dissent.

The full version of the Vermont Supreme Court Decision can be found here.


One Response to Necessity

  1. Pingback: Finally, my chance to speak up | Centerville Extension

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