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Sec 8 Defense In A Pretrial Motion Only?


t-pain
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both msc opinions on king/kolanek and blysma state that sec 8 must be done in pre-trial motion.

 

Section 8(b) provides that a person “mayassert [this defense] in a

motion to dismiss, and the charges shall be dismissed following an

evidentiary hearing where the person shows the elements listed in

subsection (a).” [MCL 333.26428(b).] This schememakes clear that the

burden of proof rests with the defendant, that the defendant “may” move to

dismiss the charges by asserting the defense in a motion to dismiss, and that

dismissal “shall” follow an evidentiary hearing. This last requirement is

significant because it indicates that the § 8 defense cannot be asserted for

the first time at trial, but must be raised in a pretrial motion for an

evidentiary hearing.

 

does this mean you will be unable to assert sec8 defense after a trial has begun?

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It translates to this:

 

A section 8 defense may only be presented to a jury only IF a section 8 hearing has taken place before a trial.

 

Matters of quantity, for instance, are able to be determined by a jury. Was the amount a reasonable amount under the circumstances?

 

Anything where a judgement call about something being good enough should then be able to be presented to the jury.

 

BUTTTTTTT .. to do so requires the section 8 process to begin BEFORE the time of the trial.

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It translates to this:

 

A section 8 defense may only be presented to a jury only IF a section 8 hearing has taken place before a trial. Yes I agree

 

Matters of quantity, for instance, are able to be determined by a jury. Was the amount a reasonable amount under the circumstances? No it's still up to a judge

 

Anything where a judgement call about something being good enough should then be able to be presented to the jury. Not yet soon we hope

 

BUTTTTTTT .. to do so requires the section 8 process to begin BEFORE the time of the trial. Yes I agree

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PB got it mostly right- and probably exactly right in the amazingly special case of medical marijuana. :bong7bp::dodgyrun:

 

In the real world of court and trials you rarely do full blown evidentiary hearings before trial- and then only if it looks like the judge might be able to rule in order to avoid the trial (or more likely to sit on it and use the potential ruling as a bargaining chip to get rid of the case :geek: ). Instead you simply make an "offer of proof" which is about the same thing as walking into chambers and throwing down your entire hand on the table. They are doing the evidentiary hearings before the trial because they are intending to screw the defendant and avoid a trial.

 

However, in the real world, the standard for the judge to take it away from the jury is ridiculousluy high- the judge has to be able to say there is no genuine issue of material fact and no reasonable juror could decide otherwise. For OC judges to be deciding "medical need" as a matter of law goes beyond judicial malpractice. This is what we call 'actual malice." I want to know which of these judges are issuing these rulings and which ones are up for re-election. These rulings have no legal basis- they are totally political creatures. :growl:

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For OC judges to be deciding "medical need" as a matter of law goes beyond judicial malpractice. This is what we call 'actual malice."

You mean abuse of discretion.

 

Actual malice is a term of art used in civil libel cases. You've probably heard the reference, "New York Times actual malice," which came out of the USSC case NY Times v. Sullivan.

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You mean abuse of discretion.

 

Actual malice is a term of art used in civil libel cases. You've probably heard the reference, "New York Times actual malice," which came out of the USSC case NY Times v. Sullivan.

 

A systematic abuse. Where a class of defendants are abused.

 

Not an individual, but an entire class.

 

Where the same pattern of abuse is applied across an entire segment of the population. That segment having the designation of disabled, the majority of the time. That is, 60% of registered patients qualify for the reduced fees by virtue of being on disability.

 

The abuse is of the degree that these courts systematically nullify law.

 

Sick, disabled and elderly citizens are having the law blatantly violated against them by this abuse. Systematically.

 

Are those kind of things not the basis for class action lawsuits?

 

No marijuana case should be able to be tried in Oakland county at all.

Edited by peanutbutter
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A systematic abuse. Where a class of defendants are abused.

 

Not an individual, but an entire class.

 

Where the same pattern of abuse is applied across an entire segment of the population. That segment having the designation of disabled, the majority of the time. That is, 60% of registered patients qualify for the reduced fees by virtue of being on disability.

 

The abuse is of the degree that these courts systematically nullify law.

 

Sick, disabled and elderly citizens are having the law blatantly violated against them by this abuse. Systematically.

 

Are those kind of things not the basis for class action lawsuits?

 

No marijuana case should be able to be tried in Oakland county at all.

 

And suffering a "debilitating medical condition" 100% of the time.

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All the judges and the prosecutor and assistant prosecutor should be grieved.

The reality of the situation is that a judge is not going to be disciplined for interpreting the law. If they were then there would be a chilling effect. Judges would go overboard in the other direction. That's why we have judicial, prosecutorial, and legislative immunity, etc.

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I am not talking about interpreting the law, I am talking about consistently covering up or correcting for illegal or marginal activities of the prosecutor leading to a violation of the defendant's right to a fair trial.

If illegal activities are deliberately being covered up then I would gather evidence and not only grieve the judge but also present it to the state police and FBI

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both msc opinions on king/kolanek and blysma state that sec 8 must be done in pre-trial motion.

 

 

 

does this mean you will be unable to assert sec8 defense after a trial has begun?

 

No you get arraigned and then you get a pretrial, most court appt attnys will wave your pretrial and take ya right over to circuit court, once your out of district court yer screwed! there is never a need to wave your pretrial unless they offered you a deal you cant refuse!

 

Peace

Jim

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No you get arraigned and then you get a pretrial, most court appt attnys will wave your pretrial and take ya right over to circuit court, once your out of district court yer screwed! there is never a need to wave your pretrial unless they offered you a deal you cant refuse!

 

Peace

Jim

You mean preliminary exam. And there are many reasons you may want to waive your prelim. Realize that a prelim. is creating a record. That record could be used against you during trial in circuit court if a particular witness testified during the prelim but was unavailable for trial. That is but one reason. There are many others that involve strategy and tactical reasons. Another reason may be that a plea offer by the prosecutor will expire if you choose to hold your prelim. Many prosecutors will condition a plea offer on not having to hold a prelim. There are a lot of reason not to hold one but each case is different and your attorney should balance the benefits and risks and inform you of her opinion and let YOU make the decision.

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You mean abuse of discretion.

 

Actual malice is a term of art used in civil libel cases. You've probably heard the reference, "New York Times actual malice," which came out of the USSC case NY Times v. Sullivan.

 

Nope! I says what I say and I mean what I says. :yahoo-wave:

 

Malice in civil libel cases is a high standard requiring actual intent to harm the party by publishing your bullcrap KNOWING it to be false. I say this is "actual malice." These cases are issued with the actual intent of harming the defendants and they must KNOW the reasoning on these are incredibly deficient. The legal interpretation in these cases is beyond poor. These are not just examples of "abuse of discretion." These are cases where judges are CLEARLY letting their personal views get in the way of interpreting the law. There is a story to tell here, I just know it....

 

On the question of what can be done? Not much! An organized campaign to file Judicial Tenure Commission grievances against these judges might help to pressure them. Personal, typed, professional letters of protest and Amicus Briefs would also help. Packing the court rooms, campaigning against these losers. Not much else. Federal courts- where we usually go when State courts are violating substantive rights- are not going to help at all in this case. I certainly would NOT grow or attempt to open up any kind of marijuana business in Oakland County.

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I just had a law school flashback. :fpc:

 

 

Matt Abel and Michael Kormone could get together and file an extraordinary writ of Superintending Control alleging the Supreme Court should assume "superintending control" over all Oakland County marijuana cases and appoint an independent judicial panel to hear them. THAT would get there attention- and would make all the newspapers. Cockroaches don't like the light. :crazysmile:

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