[Tallahassee, FL] A public defender argued to the state Supreme Court on Tuesday that Florida’s drug possession law is unconstitutional in the way it is written and applied because it would require someone who didn’t know they were breaking the law to prove it.
That upends the general presumption of innocence defendants are supposed to enjoy. And, while typically the state must prove someone is guilty, with drug possession in cases where someone didn’t know they were in possession of illegal drugs, it’s the opposite, the Supreme Court heard in what could be one of the most far-reaching drug cases to reach the court in recent years.
“It forces defendants to put on evidence of their own innocence,” said Matthew Bernstein, arguing the unconstitutionality of the law in a case involving 46 separate possession cases that were thrown out by a lower court over the issue.
Since 2002, Florida law hasn’t required prosecutors to prove in a drug possession case that the defendant knew that the substance they possessed was an illegal drug.
That doesn’t mean there’s no hope for someone who happens to be arrested carrying some substance they may have been told was baby powder, but was in fact cocaine, as an example. But they have to prove to the jury that they didn’t know it, while the jury is told it can presume the person knew they had drugs on them.
Circuit Judge Scott Brownell, threw out the 46 convictions saying that’s unconstitutional. But the state has appealed, and the matter is now up to the Supreme Court.
The state argues that the Legislature determined that drugs are such a pervasive problem, that it warranted such strict enforcement. And, said the lawyer for the state, the truly innocent defendant still has the out of being able to argue to the jury that they didn’t know what they had.
“This is … a war on drugs and in that war every citizen has been called to duty,” Assistant Florida Attorney General Diana Bock told the court. If someone is given something to carry for another person, “it is their responsibility to find out,” if the substance is illegal.
And the state is merely carrying out the will of the Legislature in wanting to crack down on drug traffic, she said.
Photo: Nightlife Of Revelry
Set-up for chopping and snorting cocaine
“Have they gone too far? Have they reached the line of due process? I would argue they have not,” Bock said.
The justices had a lively discussion with the lawyers about the possibilities – from whether a U.S. Postal Service employee carrying a shipment of pot or illegal prescription drugs might be found guilty of possession, to what would happen if Justice Peggy Quince tried to buy some spices and instead of oregano, somehow ended up with marijuana.
“I come into court and I say, ‘I thought this was oregano,’” Quince posited. The jury will be told they’re allowed to presume that Quince knew better. “Who do you think a jury is going to believe?”
The case is one of the more closely-watched drug cases to move through the Florida court system in recent years because of its potential outcome – it could mean thousands of drug possession cases would be thrown out.
In addition to the dismissal of charges against 42 defendants in the 46 cases at issue in the case before the Supreme Court from Brownell’s Manatee County circuit, there have been other cases in other circuits. In fact a district appeals court in asking the state Supreme Court to decide the issue noted the question would “undoubtedly be raised in every felony division in all twenty circuits.”
Florida’s law, which defense attorneys say is the only drug possession law in the country that doesn’t require guilty knowledge of the illegality of the substance in possession, was changed in 2002 to remove that knowledge requirement.
The first major question about the new 2002 law actually came in federal court, in the case of a different defendant, a man who was sentenced under Florida law to 18 years in prison in a cocaine case. The defendant, Mackle Shelton, sued in federal court, arguing that Florida’s drug possession law, on its face, violates the U.S. Constitution, because of the lack of the requirement for knowledge.
The federal judge, U.S. District Judge Mary Scriven in Orlando, agreed, and declared the law unconstitutional, though there was widespread disagreement around the state over what the impact of her ruling was on individual drug convictions. Still, it caused a number of challenges in circuit court to those convictions, leading to the case argued Wednesday before the state’s high court.
The justices don’t have a timetable for ruling in the drug possession case, which is Luke Jarrod Adkins et al v. Florida.
By: David Royse/The News Service of Florida
Lead image: Justin Feterley. Model: XXXOLOGY