Synthetic Marijuana Conviction Affirmed Despite Defendant’s Lack of Knowledge

The South Dakota Supreme Court issued an opinion late last week that highlights some of the problems and injustices that occur within the criminal justice system. It is truly sad when a person such as the defendant, Jason Toben, must sit in prison for years based on mistakes that no one really disputes. Toben worked in a bar in a small town in South Dakota. The bar sold synthetic marijuana products. In 2012, South Dakota passed emergency legislation that outlawed some, but not all, synthetic marijuana products. The bar where Toben worked had been under investigation before and after the law passed. Both before and after the legislation passed, Toben openly sold synthetic marijuana products to an undercover law enforcement agent. The synthetic marijuana product that Toben sold after the emergency legislation was passed stated on its packaging that it was “100% cannabinoid free” and that it was a “DEA compliant” product that was legal in all 50 states. The packaging expressly stated that it did not contain any banned substances. Also, Toben had received documentation from the company selling the synthetic marijuana that said laboratory tests confirmed that the materials contained no illegal substances. In fact, two of the State’s witnesses (a drug investigator and a forensic chemist) stated that there was nothing on the packaging to inform Toben that the products contained banned substances, and that “laypersons would not know the chemical structure of these substances: the determination requires a chemist, lab equipment, and expert knowledge.” Unfortunately for Toben, when the supposedly legal synthetic marijuana was tested by the State’s chemist, it showed that the material contained the banned substance AM 2201. The Supreme Court acknowledged that Toben should not be found guilty of possessing the material simply because it was “synthetic marijuana.” There are forms of synthetic marijuana that are still legal in South Dakota. Instead, the Court said that Toben could only be found guilty of the crime if he knew “the character and nature of the substances he was possessing and selling.” In essence, the Court held that Toben should not have been found guilty if he wasn’t directly or indirectly aware that the synthetic marijuana he was selling contained banned substances. This important principle of law, however, was not made clear to the jury. The jury was given a boilerplate definition of the word “knowing” that only tangentially addressed the issue. To make matters worse, in closing arguments the prosecutor misrepresented the law to the jury. The prosecutor claimed that Toben’s case was just like a speeding case: if you break the law, you are guilty, whether you know the speed limit or not. The Supreme Court noted that this analogy was “inapt” as speeding is a strict liability crime — it requires no knowledge — whereas drug possession requires proof of knowledge. Last, Toben’s attorney failed to provide any jury instructions of its own to help assist the jury in its review of the evidence, and the attorney did not object to the prosecutor’s incorrect statement of the law. The jury was clearly confused as to whether the State had to show that Toben knew the substances he sold contained banned chemicals. The jury sent three notes to the judge during deliberations, each time asking something related to the issue of whether the State had to prove that Toben was aware of the existence of banned substances within the products he was selling. Each time, the jury was told to consider the instructions that had been given to them. Ultimately, the jury returned guilty verdicts on all counts. The judge sentenced Toben to 9 years in prison. One of the most unfair aspects of Toben’s situation is not that he was sentenced to many years in prison for selling something he had good reason to believe was legal. The really unfair part of it is that everyone acknowledges that many mistakes were made in getting him to that point. The Supreme Court held that it would have been helpful for the jury to receive better instructions on the key issue in dispute: the definition of the term “knowingly” in regard to drug possession cases like this. And, the Court acknowledged that Toben’s trial counsel erred in not proposing a better instruction of his own. Last, the Court noted that the prosecutor’s comments “muddied” the situation, and that Toben’s counsel should have objected to the misstatement of the law by the prosecutor. In the final analysis, however, the Court found that these errors were just not big enough to warrant vacating the conviction on appeal. This case is a demonstration why persons suspected of criminal law should never assume that the system will take care of them, or that mistakes will be rectified by the court system. In our criminal justice system, you need to fight to obtain justice. You can’t hope for it.