Charles Nesson, the William F. Weld Professor of Law at Harvard Law School (HLS), had his own a storied legal career. He came from a family of lawyers although his father was a rake who was disbarred for cheating on his bar exam. He never practiced law and then squandered the family fortune before he died. Despite this sordid legacy, his son distinguished himself at HLS, clerked for Supreme Court Justice John Harlan, and then joined the Civil Rights Division of the Justice Department as a special assistant to the legendary Assistant AG, John Doar. In 1965 Doar and Nesson obtained the first convictions against members of the Klu Klux Klan by an all-white jury for committing violence against blacks – in Lowndes County, Alabama – “Bloody Lowndes.” During the 1970s Charlie represented Daniel Ellsberg in the Pentagon Papers case, and in the 1980s he earned the nickname “Billion Dollar Charlie” when he became the first attorney to seek a billion dollars in damages in the groundbreaking groundwater contamination lawsuit against W. R. Grace & Company. That case was the basis for the 1995 film, A Civil Action, starring John Travolta.
When I met Charlie in 2007 he was locked in protracted legal battle with the recording industry over Internet downloads. He later lost that one spectacularly and his client went bankrupt. That’s when I first began to suspect that Nesson was a champion of lost causes of which we were but two, tilting happily at his windmills. Because after all, Keith and I were – you know – guilty.
Professor Nesson attracted a Dream Team. Attorney Steve Epstein was there from the beginning and represented us at the preliminary hearing. Charlie pulled in Matt Feinberg, a now-distinguished private practitioner who launched the first legal assault on Massachusetts’s pot law thirty-five years earlier. Jury selection expert Lynn Williams, a NORML Legal Committee member, volunteered to come down from Bangor. Maine, and Charlie’s Harvard Law intern, Brendan Hickey, was happy to do the legal legwork. For our part, Keith and I schlepped back and forth, forth and back to Boston as we wound through winter towards a trial in the spring.
Back in the Garden State, my wife’s welcome mercy notwithstanding, the New Jersey Superior Court – Family Division discovered my troubles in Boston through a court-ordered DYFS* report that was sent to the judge. Full custody was looming, and I was certain I would have to explain my arrest. There was no real way of knowing how a judge might view cannabis and kids, but the odds were not in my favor. I wanted to address the situation before it addressed me, so a week before the hearing I hand-delivered a letter to the court clerk who promised to give it to the judge. As it was designed to do, the burnished gold letterhead of Harvard Law School jumped off the page. I excerpt parts below not from any conceit, you understand, but for its exquisite irony. The truth is obvious: I’m a very lucky reefer dad:
“Dear Judge Moore,
“I understand that you have before you a petition from Rick Cusick for Permanent Custody of his daughter, and that some concern has arisen relating to a court proceeding in which I represent him. This proceeding is a test case in which we are challenging the constitutionality of the Massachusetts criminalizing marijuana possession…”
My attorney explained that our challenge “contests the constitutional basis for criminalizing marijuana possession, and asserts the right to have a jury determine whether their violation of the statute warrants a verdict of criminal guilt.”
Any savvy judge would read between those lines and think: jury nullification.
“Our brief is attached,” he affirmed. “The Massachusetts Superior Court presently has the matter under advisement.”
Charlie charitably vouched for my “honor and fortitude” and “warmly” supported my custody petition “for his daughter to whom he is devoted.
“I urge you to consider his case here in Boston, not as a negative but, if relevant at all, as strongly positive evidence of his good character.
“Weld Professor of Law
“Harvard Law School”
Nesson wanted the jury to nullify the Commonwealth’s cannabis law, but nullification is a difficult and freighted legal concept. An attorney cannot mentioning the word in court so Charlie tried to finesse the panel into coming to that conclusion on their own; but the jury didn’t go there. After a ten-minute deliberation they returned a guilty verdict at 4:20 pm on May 13, 2008, and the appeals process took another year and a half. In all, it would be a full two years in court framed by fundraisers, media interviews and pot parties. Our case was a brief cause célèbre in the college town of Boston. Regardless, the appellate court upheld the convictions in 2009, and the Supreme Judiciary refused to hear the case and kicked it back down to the lower court for sentencing. Even though cannabis had been decriminalized in Massachusetts in the interim, the Commonwealth grandfathered these bothersome petitioners and asked the judge to throw the old book at them: six months suspended sentence contingent upon two years probation, fifty hours of community service plus a $500. fine The prosecutor further requested that the defendants be tasked to clean up Boston Commons – the scene of the crime – and otherwise be excluded from entering that public space during thier period of public service.
“That should stop them from attending at least one Freedom Rally,” the prosecutor bizarrely quipped.
The judge said, “This is when I usually go back to my chambers and think about what sort of sentence I should impose, but I don’t have to think about this one. Will the defendants please rise…
“I sentence you to one day of incarceration limited to the time you spent in the custody of the police on the day of your arrest…
And back home, Judge Sivilli, in her wisdom, denied the petition for full custody, which was always a bad idea. For reasons I still don’t understand, my wife and I stayed married for years although we led distinctly separate lives. For all those years we’ve shared joint custody – an ironic phrase – of the increasingly impressive young lady who lives with me, visits with her mother and looks like both of us.
* Division of Youth & Family Services