Law Office of Stephen Demik, LLC

On November 3, 2020 more than 225,000 South Dakotans voted for the legalization of both medical and recreational marijuana. Constitutional Amendment legalized the recreational use of marijuana for individuals 21 years old and older. Under the measure, individuals are allowed to possess or distribute up to one ounce of marijuana. The amendment requires the legislature to pass laws providing for a program for medical marijuana and the sale of hemp by April 1, 2022. Voters also passed Initiated Measure 26, which establishes a medical marijuana program in South Dakota for individuals who have a debilitating medical condition as certified by a physician. In passing both, South Dakota became the first state to pass recreational and medical marijuana on the same day.

Does this mean everyone can now possess and use marijuana? Hold your horses. The legislature has until April 1, 2022, which means that as long as the current marijuana laws are on the books, it’s illegal. Remember also, of course, that marijuana is still a federally controlled substance. That means that possession on federal lands, such as National Parks or VA grounds, is illegal.

This schism between state and federal law also creates myriad issues for people in the cannabis business. Federal taxes significantly affect marijuana sales, which results in a much larger revenue cost than many sellers might anticipate. Also, most marijuana, even in California (where I also practice), is a cash business because of the limitations of FDIC-insured banks and institutions.

Also, the measure provides that marijuana sales in the state will be taxed at 15%. That is also going to be a significant cost for would-be growers, distributors and retailers. The measure requires the Department of Revenue to create four licenses types for:

  • commercial cultivators;
  • testing facilities;
  • wholesalers to package, process, and distribute marijuana to retail sales outlets; and
  • retail stores to sell marijuana.

The Department is to issue “enough licenses to substantially reduce the illicit production and sale of marijuana throughout the state” and, if necessary, limit licenses “to prevent an undue concentration of licenses in any one municipality.” What that exactly means is still to be seen.

The legal landscape going forward is murky at best. However, we can easily look to other states such as Colorado and California and learn from their experiences with the cannabis industry. For now, I am closely following the law that the legislature will pass and keeping close contact with my counterparts in the cannabis industry for any immediate developments.

Jury Trials by Zoom?

Due to the COVID-19 pandemic, there has been a lot of talk about possibly resuming jury trials by zoom or some form of videoconferencing. While I have, like many people, participated in zoom meetings and video conferences since March of this year, I have to say I was open to the idea in principle. The reasons were that I knew many criminal defendants were waiting for their trials. And many civil defense attorneys were manipulating the delays to their advantage. Therefore, I thought, a zoom trial is better than no trial at all.

But I changed my mind after watching a misdemeanor traffic trial by zoom. It was the first one held (to my knowledge) in the United States. I watched most of the jury selection and some of the trial. Besides the technical glitches, a juror walked off the screen to take a phone call. The “virtual jurors” “deliberated” less than one hour. The virtual format made judging credibility far more difficult than in-person testimony.

Jury service is called “service” and jury duty called “duty” for a reason. It is not always an enjoyable experience. I have had jurors tell me that they never wanted to do it again. Some said it was an emotionally trying experience. Most see it as an unwanted disruption in their daily lives. And it’s a lot less entertaining than the trials they see on television. This is all true. And while I’m a firm believer in the need for attorneys to keep the attention of their juries, I know that there are certainly “boring” times for the jurors. There are side-bar conferences, breaks to address legal issues, and other matters that sometimes require the jury to sit there uninvolved. So, keeping juries’ attention is important, but being “entertaining” can distract from the ultimate role of the trial– to find the truth and fairly adjudicate disputes under the law. It isn’t reasonable to ask jurors to pay close attention and give the proceeding the solemnity it deserves. Especially when they’re amidst their home or work environment.

Appellate arguments, to my knowledge, are far more common in the days of COVID. To be frank, I often think that appellate judges already have their minds made up before oral arguments (not to be too cynical). And the justices understand the issues and are able to ask questions. Jurors, generally, cannot ask questions mid-stream unless they send a note to the judge. And jurors are there to determine credibility of witnesses, something that I don’t think you can fully do on a video screen. My opinion hasn’t changed regarding those changes. In fact, it would make my life easier to not have to fly to St. Paul or Pasadena to argue my appeals in front of the 8th or 9th Circuit Courts of Appeal.

But jury trials are a different animal, and one that I think deserves protection from the ease and convenience of zoom. Not even touching the technical difficulties and “hiccups” that I saw during the Texas trial, the trial itself seemed like a production. That’s understandable with a misdemeanor traffic violation, but I don’t see how it would change with a serious felony. How do you reinforce to a jury that someone’s liberty may be at stake in a virtual world where it all seems like a production anyway? It took one virtual trial to convince me that this shouldn’t happen, which leaves the more difficult question of how jury trials should be held during the pandemic. That question I’ll leave for another post, since I haven’t put a lot of time into thinking about it. But for now, I thought I’d share my complete 180-degree shift in position on the matter of virtual jury trials after seeing one live in action. We can, and must, do better.

Recently, I had a case in California where federal law enforcement officers installed a “pole camera,” or video camera outside a shopping center to monitor alleged criminal activity. They did not seek a warrant to do so. At the same time, I had a case in South Dakota where officers installed the same device, but sought and obtained a warrant first. The difference led me to question whether or not a warrant is, in fact, required for these pole cameras.

Pole cameras can record footage for months at a time, and law enforcement officers can manipulate the cameras to pan or zoom. These can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But there is some growing support for the argument that they may be subject to Fourth Amendment restrictions.

In United States v. Jones, 132 S. Ct. 945 (2012), law enforcement installed a GPS device without a search warrant on a suspected drug-trafficker’s car, tracking his movements for weeks. The Supreme Court ruled that a warrant was required because the installation of the GPS tracker involved a physical intrusion into the vehicle (constituting a trespass). Five Justices opined that prolonged GPS monitoring violates an individual’s reasonable expectation of privacy (thus requiring a warrant). Interestingly, these Justices were not bothered by short-term monitoring on public roads, but said that the aggregate of long-term monitoring information is an invasion of privacy.

Although Jones involved tracking a suspect’s movements, it could be used to support a broader argument about long-term electronic surveillance. One could contend that under Jones, while officers are free to observe a suspect’s residence from the public streets or a neighbor’s property to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and constitutes a search under the Fourth Amendment.

Most courts that have considered the issue have rejected a defendant’s argument based on the trespass theory that the installation of a pole camera was a trespass under Jones, where the cameras are not on private property.  See United States v. Nowka, 2012 WL 6610879 (N.D. Ala. 2012); United States v. Root, 2014 WL 4715874 (E.D. Wash. 2014); United States v. Wymer, 40 F. Supp.3d 933 (N.D. Ohio 2014).

But there is some support for the argument subjecting these pole cameras to the Fourth Amendment under the reasonable expectation of privacy theory. In Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 2012), a pole camera surveilled the defendant’s backyard continuously for 56 days, and the camera was long-range, infrared, and waterproof. The defendant’s backyard was protected by a solid fence and within the home’s curtilage. In a summary judgment context, the court held that the video surveillance of Shafer’s backyard constituted a “search” under the Fourth Amendment.

An interesting federal district court case out of Massachusetts recently ruled that the pole cameras in that case “collected information that permitted the Government to peer into [the defendants’] private lives and constitutionally protected associations in an objectively unreasonable manner.” United States v. Moore-Bush, 381 F. Supp. 3d 139, 143 (D. Mass. 2019) (citing United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)). The court there incorporated the Supreme Court decision in Jones and Carpenter, also noting the unique characteristics of pole cameras, which utilize searchable digitized footage, distinguishing it from ordinary “human surveillance.” Id. at 146-50. In that case the pole cameras were used for eight months and the residence being surveilled was in a “quiet, residential neighborhood in a house obstructed by a large tree.” Id. at 143.

However, when confronted with this question, most courts have ruled that warrantless pole camera surveillance did not violate the Fourth Amendment under the reasonable expectation of privacy theory. For example, a recent federal appellate case, United States v. Houston, 813 F.3d 282 (6th Cir. 2016), found that ten weeks’ surveillance with a camera installed on a utility pole about 200 yards from a trailer used as a residence on a farm did not violate a resident’s reasonable expectation of privacy because the camera recorded the same view of the residence as that enjoyed by people on nearby public roads. The court believed that the Jones case did not require a different result. Interestingly, a concurring opinion in Houston believed that Jones required the officers to obtain a search warrant.

This is a question that this technological question, like Carpenter, may end up in the Supreme Court very soon, and it will be interesting to see how the legal landscape forms before that happens. For now, I would almost always make the argument that these pole cameras necessarily involve Fourth Amendment concerns and a warrant, supported by probable cause, must be obtained to use them.

Parole has been abolished in the federal criminal system. However, “supervised release” is almost ubiquitous. What that is, as judges admonish thousands of defendants every day, is a period of time after a prison sentence when there are conditions that you are given and must follow. If you don’t, you go back to prison. My qualm with that is that most attorneys don’t give the conditions a second thought. They are usually, and understandably, concerned with the actual prison sentence imposed (if they can’t get probation). But over the last few years, some conditions have been sneaking into the federal parlance– so-called “standard conditions”– that are unreasonable and overly broad. One that I have (so far) unsuccessfully challenged, is a standard condition stating that “[i]f the probation officer determines that [the defendant] pose[s] a risk to another person (including an organization), the probation officer may require [him or her] to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that [the defendant has] notified the person about the risk.”

I have two problems with this condition: (1) it gives the probation officer virtually unbridled discretion in deeming what constitutes a violation, (2) it is way too broad to effectively put a supervisee on notice about that they could be violated for, and therefore could put a lot of people in prison for innocuous conduct. These may be theoretical risks, because we don’t really know until a client is alleged to have violated the condition. But it should still be challenged.

I have recently filed an appeal on this condition, asking the 8th Circuit Court of Appeals to vacate it. Hopefully, that will happen. And the result should be that the condition gets wiped from the “standard conditions” for all defendants. Before I brought this challenge, I wasn’t aware that anyone else had attacked this condition. However, after I filed my appeal, the United States Court of Appeals for the Tenth Circuit vacated the same condition in United States v. Cabral, No. 18-1263 (10th Cir. Jun. 10, 2019).

Although the Tenth Circuit did not address the overly broad/vague challenge, it did conclude that the condition impermissibly delegates judicial authority to the probation officer. And while this holding is not binding on the Eighth Circuit, it still presents persuasive authority supporting the issues raised in my appeal. In Cabral, the Tenth Circuit invalidated a “risk condition” nearly identical to the one in my case, holding that “the risk-notification condition, as imposed by the district court, improperly delegates judicial power to a probation officer.” Id., Slip Op. at 2. The court held that “[b]y tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a “risk” to others in any facet of his life and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests.” Id., at 16. The court noted that the “risk-notification” condition implicated a multitude of liberty interests, including infringing on the fundamental right of familial association. The court also noted that the condition presented an impermissible occupational restriction. After this analysis, the Tenth Circuit unequivocally held that the risk-notification condition “is an improper delegation of judicial power.” Id., at 19.

We will see how the 8th Circuit falls on this issue. However, in the meantime, I encourage federal criminal defense practitioners and defendants to object to the standard condition and preserve the issue for appeal. Who knows, perhaps there might be a circuit-split and the Supreme Court will take up the issue, as it did in another one of my cases from the Southern District of California. See Tapia v. United States, 564 U.S. 319 (2011).

I was recently at the Trial Lawyers College teaching and sat down for lunch with another instructor who told me a story about a jury trial in which the attorneys had a juror consultant in jury selection. During attorney-conducted voir dire, the jury consultant was watching the attorney explore the difficult topic of race (without going into the details, race was an issue in the case). Most of the jurors explained that they don’t entertain stereotypes, harbor subconscious bias, or hold any prejudices based on race. We all like to think that of ourselves, of course. And my intent here isn’t to open up a discussion on race in jury trials, which as important as that is, would take far more than one post to explore. I grew up in the South, and I grew up knowing racism, both out in the open and behind closed doors. And I think race is almost always part of any exploration or discussion on justice, fairness, and… well, reality. But I digress.

The lawyer was asking questions of the jury venire panel when one juror raised their hand. The juror told a story about how she was raised not to see skin color. She grew up on a ranch and her father, seeing the long line of Native American workers walk past every day on their way to work, would always offer food, drink, or shelter in bad weather. He would set up hay beds and light a heater for them in the barn, giving them a warm place to stay and food. She told this story in fond recollection of her father, who she clearly loved very much and respected. The jury consultant quickly handed a yellow post-it note with a question for the lawyer. The question was, and the lawyer asked, “where would your father allow those workers to stay if they were white?” The juror teared up, and answered, “He would have them stay in the house.” She realized that there was a difference there and, even though her father was a good, generous and kind man, there was a difference. Even kind people can internalize racial bias.

During the break when the lawyers have to exercise their “peremptory strikes,” the lawyer said he wanted to “kick” the juror– exercise a peremptory challenge and excuse the juror from the case. His feeling was that she harbored some prejudice based on their exchange, and he didn’t want to risk putting a juror on the case that might feel that way. “No,” the jury consultant said, “you have to keep her.” “Why?” the lawyer asked. “Because she was honest.” Being honest, her reasoning went, is more important than saying what the court and the lawyers want to hear.

I practice the “TLC voir dire” method whenever I can in court (another subject that would take tomes to discuss). I am a big believer that it is the most effective way to find jurors who will follow the law and apply the facts of the trial to the law as the judge gives it to them. It’s not, as most lawyers practice, finding jurors who “like you” or “will vote for your case.” It is about finding honest jurors who, despite all the prejudices and biases we all have as humans, will be honest about them and look deep inside themselves to impartially follow the law as the judge gives it to them.

In one of my recent trials, after hours of voir dire, I stumbled on a juror who had the courage to admit in open court that she simply couldn’t follow the law that says that if a defendant does not testify you cannot take that into consideration in any way. Frankly, I believe that most jurors feel the way she did, although not many could bring themselves to admit it because they did not want to appear bias or feel like they were failing to follow the law. But she was real. She was honest. And she chose to exclude herself because she searched herself and realized that she just couldn’t follow the oath and ignore the fact that the defendant didn’t testify.

I’m not saying this is a way to get out of jury duty. And I’m not saying this means that no one can follow the law. It takes a lot of energy to follow the counter-intuitive principles enshrined in the Constitution (presuming the defendant “innocent,” treating the doctor witness the same as any lay witness, only holding the prosecution to the burden of proof, awarding money damages as justice for a dead spouse or relative even though that won’t fix anything, potentially acquitting someone who you think is guilty because there just isn’t enough proof, etc.). But what our goal should be, as trial attorneys, is finding honest and fair jurors, rather than jurors who want to appear fair and impartial, or say what we want to hear. And that’s a huge task.

There are many courts around the country that are eliminating attorney-conducted voir dire from trials. That is an injustice. There is no better way that I know of to help find twelve honest and fair jurors who will follow the law and apply the facts to the law as the judge gives it to them. And I’m thankful and appreciative that most courts in South Dakota still allow attorney-conducted voir dire. It is one of, if not the, most important part of a trial.