[420 Girl]

Don Christen was convicted and sentenced to 14 months in jail with all but six months suspended, plus two years probation. He spent two months in jail and has been free on bail ever since. Now that he's lost his appeal to the Maine Supreme Court, Christen says he's been told to report to the Somerset County Jail on Friday night. "The system is screwed up. Simple as that. And everybody knows it, but nobody is really doing much of anything about it. I'm doing what I can and will continue to do what I can and this is not going to deter me. It's just going to set me back a little for a few months."

A decade ago, Maine voters passed a medical marijuana referendum that was amended by the Legislature three years later. The law allows designated caregivers to grow up to six marijuana plants for each eligible patient and to keep two ounces of pot on hand for each person. During a 2004 search of Christen's home, police found 13 plants, which Christen says he was growing for at least six patients who had permission from their doctors to use the drug. But during Christen's trial, the jury was never instructed that they could multiply the six plant limit by the number of Christen's patients.

"We don't think that the jury understood that they were supposed to decide how many eligible patients Don was providing medical marijuana for," says Christen's attorney Peter Bickerman. "And if it was more than one, if there was more than one eligible patient, the jury should be multiplying the useable amount of marijuana per patient."

In the Maine Supreme Court's opinion, Justice Ellen Gorman acknowledges that the lower court never specifically told jurors that a designated caregiver could possess a usable amount of marijuana for each eligible patient. "However," she writes, "the court provided the jury with written copies" of the applicable statute to review during their deliberations. Gorman also points out that Christen did not object to the instructions before, during or after they were given. Christen and his attorney Peter Bickerman, also argued that the lower court erred by instructing the jury that the medical marijuana statute provides an affirmative defense, not a regular defense, and that Christen had the burden to prove it.

Peter Bickerman explains the difference. "A regular defense in criminal law, a regular defense places the burden on the state to disprove beyond a reasonable doubt the conditions of the defense. An affirmative defense places the burden on the defendant to prove by a preponderance of the evidence that the conditions for the defense exist."

Bickerman says the wording of the statute is ambiguous about the use of the affirmative defense. But the Supreme Court disagreed. The assistant district attorney who argued the case for the state could not be reached by airtime.

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