“We’ve seen a force that would shatter our nation rather than share it,Would destroy our country if it meant delaying democracy.And this effort very nearly succeeded.But while democracy can be periodically delayed,It can never be permanently defeated.The Hill We Climb.”
On the night before the end of his term, former U.S. President Donald Trump commuted the sentence of Noah Kleinman, in the course of granting overall clemency to 143 people caught in the federal criminal justice system. While many of these people were either celebrities or Trump’s close colleagues, a large percentage of those pardoned were non-violent drug offenders.
Mr. Kleinman is a 45-year old father of two children who has been serving 6 years of a 17.5 year sentence for a marijuana offense. way. Our office represented Mr. Kleinman in his federal district court case and trial; and gave information and insight to the appellate lawyers who worked on Noah’s case and filed his first pardon. They also gave assistance to the Aleph Institute who ultimately secured Noah’s release.
Earlier on the same day that President Trump commuted Kleinman’s sentence, the the US Department of Justice filed a lengthy motion opposing Noah’s separate pending motion for a compassionate release, which was to be heard by his trial court judge. Despite Mr. Kleinman’s tragic family circumstances, exemplary behavior in prison, serious and chronic health conditions, and nonviolent record, federal prosecutors argued in filings right before Presidential Trump commuted his sentence that Mr. Kleinman should stay locked up because he was a “danger to society” given his “irresponsible social habits,” that he couldn’t be trusted to avoid killing people by spreading his Covid-19 infection, and that he shouldn’t be released until he could prove how he would pay for his own healthcare upon release. Given federal prosecutors’ ruthless determination to keep Mr. Kleinman imprisoned, Trump’s decision to commute his sentence came as a gratifying surprise.
Noah Kleinman first submitted a request for compassionate release on April 10, 2020, which was ultimately rejected. Back in 2018, the Ninth Circuit Court of Appeals affirmed Mr. Kleinman’s conviction and sentence arising out of the operation of medical-marijuana collective storefronts in California, and denied a petition for an evidentiary hearing on his defense that he had largely complied with state marijuana laws – a defense he was not allowed to present in his trial. The Ninth Circuit also held that the district court did not err by declining to instruct the jury on defendant’s joint ownership defense, that the district court did not abuse its discretion by considering the government’s late-filed objections to the pre-sentence report, and defendant’s 211-month sentence was substantively and procedurally reasonable.
Notably, the Ninth Circuit also protected jurors’ power to nullify unjust laws in their verdicts in future cases throughout the Ninth Circuit, holding that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” The appeals court found that the erroneous instruction was “harmless” in Mr. Kleinman’s case, but made clear that, in the future, “a court should not state or imply that (1) jurors could be punished for jury nullification, or that (2) an acquittal resulting from jury nullification is invalid.” As the Ninth Circuit stated, courts may not divest juries of their “power to acquit an accused, even though the evidence of his guilt may be clear.” Jury nullification has been used throughout American and British history to protect citizens against unjust laws and prosecutions, including in the areas of fugitive slaves, free speech, and alcohol and drug prohibition. Jurors may exercise nullification when they believe an entire law is unjust, that it’s being applied in an unjust manner, or that the potential punishments are too severe. Jury nullification thus serves as a citizens’ check and last line of defense against a tyrannical or abusive government.
Attorney Raza Lawrence previously commented on the matter, stating “We believe the Department of Justice is on the wrong side of history. Time will tell whether federal prosecutors’ heavy-handed tactics in this and other marijuana cases are a true reflection of Americans’ moral compass. In the mean time, we mourn the lives and families destroyed by the federal war on marijuana. Our current federal policy lacks any rational basis where the Obama Administration is crafting regulations to facilitate and encourage large financial institutions’ involvement with commercial marijuana distribution, while at the same time asserting that marijuana is highly dangerous with no medical value and pursuing draconian criminal prosecutions.”
Pardon-granting is very political and after we were denied under Obama ( we filed a previous petition ) former AG Eric Holder offered to help in any way possible and was saddened that the case had not come to his attention when he could have acted. We are hoping to brainstorm ideas and lobby the Biden administration on substantive and procedural criminal justice reform.
Author: Allison Margolin Esq., Raza Lawrence Esq. (Margolin & Lawrence Attorney’s at Law)