After nearly three years of legal limbo, Steven Ficano, a 65 year old medical marijuana patient, was finally set free by an act of jury nullification last month. On May 29, Ficano was found not guilty of two felony counts for possessing too much marijuana. He faced over ten years in prison if he had been convicted.
The case against Ficano, a long time local business man with no criminal history and a registered medical marijuana patient, revolved around the amount of marijuana in his possession at one time and prosecutors’ contention that this indicated he was selling it.
At the time of his arrest, Ficano was in possession of 68 plants and 24 pounds of finished marijuana. Nevada medical marijuana laws limit patients to 12 plants and 2.6 ounces of finished marijuana, but Ficano had a waiver from a doctor stating that he could possess more than that limit. Those limits are also based on a three month growth period and Ficano stated that he only harvested the plants in his possession once a year.
Defense attorneys maintained that the aspect of the rules regarding how much could be possessed were ambiguous, hadn’t been explained properly to Ficano, and that the lack of proper dispensaries are what led him to feel the need to store large quantities of cannabis. They also presented three of his neighbors, including a former policeman, as witnesses that testified they did not believe Ficano would ever sell marijuana.
Prosecutors attempted to use the large amount of marijuana in his possession, and the discovery of a digital scale, more than $51,000 in cash, and 26 guns, as well as the lack of “a single pot baked-good located in his home,” during the raid, as proof he was intending to sell it. However, the guns were antique lever-action rifles, collectible pistol sets, and historic muskets.
In addition, the money was Ficano’s life savings that he had removed from the bank during the recession, some of the marijuana had developed mold from having been stored so long, and most of the plants were either male plants or ones that had not matured enough to produce buds. Pretty much none of that was indicative of a drug sales operation.
Within an hour, jurors, some of whom cried along with Ficano after the verdict was read, voted to acquit him of all charges. Later, several jurors stated that their decision was based on sympathy for Ficano’s medical conditions, which included arthritis, scoliosis, and pain from a recent car accident, and not the “letter of the law.”
Outside the courtroom, jurors said they focused on the doctor’s waiver, and said they didn’t think the document clearly defined how much pot Ficano could have at his home.
The waiver allowed him to possess 29 plants and 2 to 4 pounds of finished marijuana per three-month growing cycle. But Ficano said he only harvested marijuana once a year and assumed that he would be allowed to have up to 84 plants and 16 pounds of finished medicine.
Another juror, Donna Florence, said that after reaching the verdict she thought of her mother, who died of cancer about two years ago.
“If I could have gotten something for her that would have spared her that pain, I would have done anything,” she said. “And I think this guy was just in similar pain and trying to help himself.”
So it’s pretty clear, even if they didn’t actually realize that they were doing it, that the jurors used jury nullification (AKA their conscience) to protect a good person from a very bad law. Although this is still a rarity and the courts actively work to hide this right from jurors, it’s great that people are becoming aware of this important option for those that sit on juries. This is especially important in cases like this where senseless and counterproductive prohibitions are used as a weapon against people who are clearly not a threat to society or the communities in which they live.
The War on (Some) Drugs is a source of more theft, violence, and other abuses (on both sides of the law) than any drug it purports to fight with very little success at actually preventing drug use along the way. People serving on a jury can and should separate true criminals from someone simply seeking relief from a chronic illness or medical condition. Especially, when that relief comes from something that has consistently been proven to be not just harmless, but actually beneficial in many ways. Fortunately, this jury had enough compassion and moral strength to do the right thing this time.