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Allegheny County court appeal aims to decriminalize marijuana

Tribune-Review
| Friday, September 7, 2018 5:30 p.m
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A Pittsburgh attorney is hoping to overturn his client’s drug conviction with an appeal that — if successful — would essentially decriminalize marijuana in Pennsylvania.

Lawyer Patrick Nightingale said he knows it’s a Hail Mary strategy, but he’s excited to give it a try. He’s been an advocate of legal marijuana for about a decade.

“I’ll take whatever shot I can get,” he said. “I’m in a unique situation.”

His client, Tony Jezzi, 33, of Pittsburgh was arrested in 2014 on four controlled substances charges when police found about 40 marijuana plants growing in his home.

He was found guilty on all counts in the Court of Common Pleas of Allegheny County last year.

Nightingale argues his client should be found not guilty, because possessing marijuana should not be a crime.

Pennsylvania, and the federal government, consider marijuana a Schedule 1 controlled substance. This is a category of the most strictly-controlled drugs, those with “a high potential for abuse” and “no currently accepted medical use,” according to the Pennsylvania code.

However, in 2016 the state established a medical marijuana program, touting the drug’s medicinal benefits.

Nightingale argues this new law contradicts the one naming marijuana a controlled substance — and the newer one should take precedence.

“That has got be addressed,” he said. “It’s an absolute redundancy, an absurdity.”

The issue has been argued in Pennsylvania court once before, in 2012.

Terrance Lamont Waddell, of Homestead, was arrested when police found about 10 pounds of marijuana in his home.

His lawyers argued the strict regulation of marijuana was invalid because of the drug’s health benefits.

The state Superior Court disagreed. Marijuana has been on the state’s list of Schedule 1 drugs since the list was created in 1972. The law’s criteria that Schedule 1 drugs have “no currently accepted medical use” is meant to evaluate substances that might be added to the list later, not those that have been there since the beginning, according to an opinion written by Judge John T. Bender.

Other Schedule 1 drugs have medical uses, including heroin, which “is incredibly effective in the treatment of severe pain,” Bender wrote.

Waddell’s sentence was eventually overturned because police entered his house without a warrant.

Nightingale said he believes the precedent set by the Waddell decision was misguided to begin with, and is no longer relevant now that there are state-sanctioned growers and sellers of medical marijuana.

Pennsylvania’s controlled substances regulations are modeled on federal law, but that should not matter, Nightingale said.

“Federal law does not control Pennsylvania state law,” he said.

In his appeal, Nightingale argues that the prohibition of marijuana has always been driven by politics, not science.

If the court agrees marijuana should no longer be a controlled substance, it would all but legalize the drug.

“You cannot possibly prosecute somebody under the controlled substances act for a substance that is no longer controlled,” Nightingale said.

It is unclear what this would mean for suspects facing marijuana charges, or those already convicted of marijuana-related offenses.

“It would certainly throw one hell of a monkey wrench into the system,” Nightingale said.

Allegheny County District Attorney Stephen Zappala could not be reached.

Other states that have legalized marijuana have done so through public referendums or legislative action, not court orders.

Once the paperwork is finalized, the case will go in front of a panel of the state Superior Court. From there it could be appealed to the Superior Court as a whole, then the State Supreme Court, a process that could take up to two years, according to Nightingale.

He hopes it might be made irrelevant before then.

“In the meantime we may have decriminalized marijuana in Pennsylvania, and that may render my entire argument moot,” he said. “I certainly hope so.”

Jacob Tierney is a Tribune-Review staff writer. You can contact Jacob at 724-836-6646, jtierney@tribweb.com or via Twitter @Soolseem.

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