Judge in Big Isle
marijuana case
finds ambiguity
in jury instruction

The defense opposes his proposal
to clarify religion's legal links

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By Rod Thompson
rthompson@starbulletin.com

HILO >> Nearly eight hours into jury deliberations in the trial of Jonathan Adler, who claims a religious right to marijuana, Judge Greg Nakamura proposed changing a jury instruction yesterday.

Defense attorney Michael Glenn objected vigorously, saying that would be like twisting jurors' arms.

Nakamura said the present jury instruction regarding religion is unclear.

Deputy prosecutor Kevin Hashizaki sided with the judge, saying courts can correct errors in jury instructions.

Nakamura ended the day without ruling.

Police seized 89 marijuana plants at Adler's home in 1998 and charged him with commercial promotion of marijuana.

Adler testified that Constitutional freedom of religion allows him to use marijuana.

He testified he has been a minister in the Religion of Jesus Church, which mandates the use of marijuana, since 1974.

Even if the jury finds that the prosecution proved its case against him, it must also decide if Adler's religious beliefs are sincere and if his church truly mandates marijuana.

If it answers "yes," further court proceedings must decide if the state can limit his religion.

If it answers "no," there could be a problem, Nakamura realized yesterday.

Because of the wording of the instruction, which Nakamura wrote, "no" might mean the jury thinks Adler is not sincere, or it might mean the jury can't decide, the judge said.

Glenn told the judge that court rules say he can give the jury new instructions only if they ask for them, which they haven't.

Glenn also quoted from a case in which the trial judge refused to "invade the province of the jury" with new instructions, since the jury had not asked for any.

That judge, who went unnamed in Glenn's legal reference book, also said, "Sending in just one instruction is like asking the jury to reconsider and sort of arm twisting, so I will not send in just one instruction."

The length of jury deliberation so far, eight hours, normally is seen as a good sign for the defendant. It suggests jurors may not agree on a verdict, and a hung jury may result.

Glenn said Adler doesn't want a hung jury.

He wants a not-guilty verdict setting him free or a guilty verdict allowing further discussion of the constitutional issue.