Drug War Chronicle

First it was Secret Service agents and members of the military who were part of President Obama's security detail during his trip to the Summit of the Americas in Cartagena, Colombia, last month. Now, allegations of dalliances with prostitutes there have spread to the DEA.

The Justice Department's Office of the Inspector General is investigating possible misconduct by at least two DEA agents, federal officials told the Associated Press Monday. ABC News reported the same day that at least three agents are involved.

The alleged misconduct is unrelated to the Secret Service scandal, but evidence of it developed as the Secret Service investigated.  The DEA said it was making its employees available to be interviewed by investigators.

"The Drug Enforcement Administration was provided information from the Secret Service unrelated to the Cartagena hotel Secret Service incident, which DEA immediately followed up on, making DEA employees available to be interviewed by the Department of Justice's Office of Inspector General," a DEA spokesperson said in a statement. "DEA takes allegations of misconduct very seriously and will take appropriate personnel action, if warranted, upon the conclusion of the OIG investigation," the statement said.

Sen. Susan Collins, ranking Republican on the Senate Homeland Security and Government Affairs Committee said in a statement Tuesday that she had been informed of the allegations against the DEA agents on May 4, but had been asked to stay quiet until the agents involved could be returned to the US and questioned.

"It's disturbing that we may be uncovering a troubling culture that spans more than one law enforcement agency," Collins said. "In addition to the Secret Service scandal, we now learn that at least two DEA agents apparently entertained female foreign national masseuses in the Cartagena apartment of one of the agents. The evidence uncovered thus far indicates that this likely was not just a one-time incident."

Twelve Secret Service agents have been fired or disciplined in the prostitution scandal, and 12 military personnel have also been implicated. Whether any DEA agents will take a fall remains to be seen.

Sentenced nearly two decades ago to three life prison sentences for his peripheral role in a crack cocaine deal, Clarence Aaron became a poster child for the inequities and harshness of drug war policing and sentencing policies. His case has garnered attention in media outlets from PBS to Fox News, and he was featured in the 1999 PBS documentary "Snitching."

Aaron, then a linebacker at Southern University in Baton Rouge, introduced the brother of a drug supplier to a cocaine dealer he knew from his high school days in Mobile and was present when a nine-pound cocaine deal went down. Despite his tangential involvement, when federal authorities busted the cocaine operation, Aaron ended up with by far the longest sentence of anyone involved, because the other players cooperated with the government and named him as a major player, and because he refused to testify against his friends.

Now, the 43-year-old Alabamian is becoming a poster child for yet another drug war inequity: the failure of the Justice Department's Office of the Pardon Attorney to promptly and accurately report to the president on requests for pardons and commutations.

In a pair of lengthy investigative reports, the most recent published on Saturday, ProPublica and the Washington Post revealed that when Aaron tried for commutation for a second time in 2008, Pardon Attorney Ronald Rodgers, who is still in the post, failed to convey critical information about his request to the Bush White House, including recommendations from the US Attorney and his sentencing judge that his application be granted. 

"I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence," wrote US Attorney for the Southern District of Alabama Deborah Rhodes in her November 2008 memo to Rodgers.

US District Court Judge Charles Butler, Jr., also shifted from an earlier stance of neutrality on Aaron's request to one of support. "Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable," he wrote in response to a motion filed by Aaron’s attorneys.

Via a phone interview with the pardon office, Butler told staff attorney Samuel Morison that Aaron "should be granted relief" immediately by the president. Morison then sent an e-mail to Rodgers telling him what Butler had said and asking whether he should update Aaron's file with the new positions taken by the judge and the prosecutor. Rodgers responded by saying he would take care of it.

He didn't. Instead, he made no new recommendation to the White House and did not revise Aaron's file to reflect the new stances by the judge and prosecutor. Nor did he pass on years of favorable prison reports describing Aaron's rehabilitation or mention an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."

The Bush administration, acting on the Office of the Pardon Attorney's recommendation, turned down Aaron's commutation request in December 2008.

When ProPublica showed the statements from the judge and prosecutor to Kenneth Lee, the White House lawyer working on Aaron's case, Lee was mind-boggled. He said that had he seen those statements, he would have recommended a commutation.

"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case."

Aaron isn't alone in getting sub-par treatment from the pardon office. ProPublica and the Post cited a former pardon office lawyer as saying some applicants have been turned down "en masse," with little or no review. But it gets worse. The first ProPublica and Post report on the pardon office, published in December, found that white offenders seeking pardons and commutations were four times more likely to receive them than black ones.

And, as the number of commutation requests has risen along with the prison population, the likelihood of actually winning one has been declining. It was one out of a hundred under Reagan and Clinton, but declined to little more than one out of a thousand under George Bush. President Obama so far has commuted the sentence of one person out of 3,800.

The Office of the Pardon Attorney has been backlogged for much of the last decade, and that may account for some of the problem. When Rodgers took over, he attempted to streamline the office to address the backlog. Instead of having office attorneys review and research each case, he turned them over to paralegals. The result was too often merely a pro forma review.

"The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied," Morison said.

Rodgers reverted back to the old system in 2010, but that was too late for Clarence Aaron and the thousands of others summarily rejected by the pardon office. The apparent problems at the pardon office have sentencing advocates calling for changes.

"We need to see some change on several fronts," said Marc Mauer, executive director of the Sentencing Project. "First, the administration needs to look at what's happening or not happening at the Office of the Pardon Attorney, and some of that should include a rethinking of how the pardon process takes place. There are calls for an independent commission to make these recommendations to the president, not an entity within the Justice Department. That's at least worthy of consideration to see what the trade-offs are," he mused.

"Also, the White House should make it clear that to be consistent with its longstanding support or the reform of crack cocaine sentencing, there should be an examination of those older cases currently in prison," Mauer added. "They should consider recalculating those mandatory minimum sentences as if they were sentenced today, to put them in sync with the new law. That would not only be consistent, it could have a substantial effect on the federal prison population."

Mauer's first suggestion echoes one made by former Obama White House counsel Gregory Craig, who told an American Constitution Society panel on the pardons issue last week that the president could eliminate the pardon office by executive order. He suggested a bipartisan review panel reporting directly to the president.

"We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice," Craig said.

Families Against Mandatory Minimums (FAMM), which has championed Aaron's case as well as many others, called the ProPublica report "extremely disturbing but not surprising." The organization is calling for a congressional investigation and, on Monday, issued a sign-on letter to demonstrate public support for the call.

"Between this report and ProPublica's earlier report on the pardon process, the Pardon Attorney's office has been shown to willfully misrepresent the facts of commutation requests to the President and contribute to a racial imbalance among pardon recipients. The Pardon Attorney's office is not a gatekeeper but a brick wall," said FAMM president Julie Stewart. "Congress should investigate this egregious behavior immediately with oversight hearings. The entire clemency process should be removed from the Department of Justice's control. It is not in the president or the public's interest to have a Pardon Attorney's office that is captive to a prosecutorial agenda, doesn't take clemency cases seriously, and doesn't treat applicants fairly."

FAMM pointed to other cases it said suggested something was seriously wrong with the pardon office.

"We have long believed that the Pardon Attorney's case evaluations have been subjective and misleading," said Stewart. "Now we know that is true in the case of Clarence Aaron. Many other cases are suspect, too. President Obama denied a commutation to Barbara Scrivner, a low-level, nonviolent drug offender who has served 16 years of her 30-year sentence for her minor and addiction-driven role in her husband's methamphetamine activity. Did the Pardon Attorney ever inform President Obama of Scrivner's extraordinary rehabilitation and the support she had from the prosecutors who tried her, the judge who sentenced her, and her congressman? If someone with that much support cannot get a favorable recommendation from the Pardon Attorney, who can?" she asked.
 

"We learned there have been only 12 commutations in the past 12 years, and only one under this president, and at least one derailed under Bush," said FAMM general counsel Mary Price. "And then there are the problems with the pardons. There is a lot more to investigate. I don't see how lawmakers can come to the conclusion there's not a serious problem. Not only Congress, but the administration and the Justice Department ought to be taking notice of this and acting accordingly."

"The letter sent today demonstrates that this story is not going to go away and that DOJ cannot sweep the Office of the Pardon Attorney's disturbing behavior under the rug," said Stewart.

Whether the Obama administration or the Congress will be moved to act on these latest revelations remains to be seen. Meanwhile, Clarence Aaron sits in federal prison, where he will die if he does not win a commutation. He filed a new application in 2010. That one is still pending.

Cameron Douglas, the son of noted Hollywood actor Mike Douglas, had a well-known history of drug addiction when he was sentenced to five years in federal prison for heroin possession and drug distribution. Not offered drug treatment, Douglas relapsed while in prison and was caught in possession of a small amount of heroin and Suboxone.

Most federal prisoners caught with small amounts of drugs are dealt with administratively, and that happened to Douglas. He spent 11 months in solitary confinement and was denied visits during that period for his transgression.

But, unusually, Douglas was also prosecuted for drug possession by a prisoner, and even more unusually, he was hammered hard at sentencing. Federal District Court Judge Richard Berman nearly doubled his original drug trafficking time, sentencing him to an additional 4 ½ years in prison. Prosecutors had asked for at most an additional two years.

In imposing the harsh sentence, Judge Berman said that Douglas was "continuously reckless, disruptive, and noncompliant" and had repeatedly refused to obey the law.

The draconian sentence for Douglas has sparked a reaction. Unlike most federal prisoners, thanks to his father, Douglas had the resources to appeal his sentence, which is possibly the longest in federal prison history for simple drug possession behind bars. And now that appeal has been joined by about two dozen addiction and drug treatment doctors and organizations who have signed an amicus curiae brief on his behalf.

The brief does not just argue that Douglas should be sentenced more leniently; it argues that Douglas is a classic example "of someone suffering from untreated opioid dependence" and that more prison time will do nothing to address his addiction. The brief shows that many federal prisoners suffer from drug addictions, that many fail to get any meaningful treatment for it in prison, and argues that imposing additional incarceration for drug-addicted prisoners serves no penological purpose.

"A central theme of the [brief] is the need to provide effective, evidence-based treatment to opioid-dependent persons, particularly to those under criminal justice supervision. Time and again, over the past four decades, the provision of appropriate substance abuse treatment to opioid-dependent persons has been shown to profoundly improve not only their health and well-being across a broad range of metrics, but also the health and safety of the larger public. This is especially true of methadone and other opioid substitution treatments," the brief argued.

"Conversely, [we] are acutely aware of the ramifications when such treatment is withheld -- the suffering, disease, death, and criminal behavior that result when punitive sanctions replace proven medical interventions and opioid dependence is left to fester," the addiction specialists argued.

The brief was written by Dan Abrahamson, director of legal affairs for the Drug Policy Alliance, which organized the effort to intervene in the Douglas case. Its signatories include the New York and California Societies of Addiction Medicine, as well as other medical, public health and human rights organizations, along with prominent individual physicians and substance abuse researchers.

"Tacking on more prison time for a person who is addicted to drugs because they relapse behind bars goes against fundamental principles of medicine, inflicts unnecessary suffering and undermines both safety and health," said Abrahamson.  "Such a response only fuels the vicious cycle we see daily across the country of drug-dependent persons being imprisoned while sick, coming out sicker, and then returning to jail even quicker -- at huge expense to everyone."

Most federal prisoners don't have the resources or the celebrity of Cameron Douglas, but many share his struggles with addiction. Justice for Cameron Douglas could help lead to more just treatment for them, as well.

Home Grown: Marijuana and the Origins of Mexico's War on Drugs, by Isaac Campos (2012, University of North Carolina Press, 331 pp., $39.95 HB)

Phillip S. Smith, Writer, Editor

For anyone with a serious interest in the history of marijuana prohibition, Isaac Campos has made an indispensable contribution to the literature with Home Grown, his scholarly work on the history of marijuana in Mexico. In so doing, he not only opens up a previously neglected area of marijuana research -- Mexico! -- but also makes a compelling case for a revisionist view of the standard narratives of pot prohibition in the United States.

Relying on archival research, access to thousands upon thousands of Mexican press articles over more than 150 years, and the latest social science insights into the social and cultural construction of narratives about drug use, as well as some groundbreaking Mexican intellectual and scientific history, the University of Cincinnati historian covers the career of marijuana in Mexico from its introduction by Spanish colonists shortly after Conquest through its prohibition throughout nationwide by the new revolutionary government in 1920.

Campos traces marijuana's arrival in Mexico to at least as far back as 1530, when one of the conquistadors was granted royal approval to import it for hemp farming. Back then, it was known as canamo, the Spanish word for cannabis. Hemp farming never really took off in Mexico, but the plant itself, a native of Southwest Asia, certainly went native, so to speak.

And that was part of pot's problem. While efforts to farm hemp had largely died out by the beginning of the 19th Century -- mainly for lack of reliable seed supplies -- knowledge of the plant spread during the colonial era among Mexico's indigenous population, which was already well-versed in the use of a wide variety of herbs and plants, including psychoactive ones. Indigenous medical and spiritual practices, which were closely tied, ran afoul first of the Inquisition, which tried to suppress them as the devil's work, and later, of modernizing Mexico, which wanted to shun its "primitive" or "degenerate" indigenous heritage for "civilized" European status.

Campos notes the first report of smoking marijuana for its psychoactive effects in 1846. By then, the plant had been thoroughly Mexicanized, so much so that it was considered indigenous and its introduction as cannabis forgotten. In fact, many observers didn't even realize that the demon weed, now becoming known as "marijuana" was the same plant as cannabis.

As Campos shows in painstaking historical detail, over the next century and a half, marijuana developed a reputation as a bringer of madness and violence, a view that was widely shared both by the indigenous masses and scientific and medical scholars. Newspaper reports of marijuana were almost exclusively and unanimously about people who had smoked it, then committed horrid crimes of violence while driven insane by its pernicious effects. Peasants were known to scream in terror or make the sign of the cross at the mere sight of the plant, associated as it was not only with madness, but with indigenous witchery.

Throughout the 19th Century, there was no counter-narrative to Mexican reefer madness (in fact, when one Mexican physician dared to challenge the orthodox view in 1938, he was nearly drummed out of the profession amid great scandal). Marijuana made you crazy, and the only people who smoked it were criminals, prisoners, and soldiers in barracks. That was the common wisdom, and it was universally supported by the science of the day.

Since running amok on weed seems so foreign to our cultural experience with the drug, Campos devotes some effort to explaining why the reports of madness and mayhem were so consistent. Did it actually make people go crazy? Here he delves into set and setting, the social construction of drug use, and the modern of science of marijuana to suggest that while people may have occasionally really rampaged on reefer, it is more likely that the reports conflated marijuana and other drug use, especially alcohol; that the existing narratives created a sort of "placebo effect" where people did what was expected of them -- go crazy on weed -- that the reports were sometimes made up to sell newspapers, and that because Mexican law provided a sort of insanity defense for people who were intoxicated, people claimed to have been under the influence to avoid criminal sanctions for their crimes.

By the late 19th Century, the repression of marijuana was underway in Mexico. First came restrictions on the sale of marijuana at herbolarias, the market herb stalls operated by indigenous women (you can still see them at the Sonora witches' market in Mexico City), then state and local bans, and in 1920, national marijuana prohibition in Mexico.

Campos' history of marijuana in Mexico is fascinating in its own right and is an outstanding contribution to the literature in itself, but he makes a real contribution to our understanding of pot prohibition in the US as well. The standard narrative, laid down by Bonnie and Whitebread in The Marijuana Conviction and Musto in The American Disease, and relied on by most later scholars, is that Reefer Madness was largely fueled by prejudice and racism toward Mexicans and their drug.

Campos shows that while anti-Mexican sentiment indeed played a role in the construction of the Reefer Madness narrative, that narrative was as much a Mexican import as the weed itself. Mexican public and scientific opinion fully embraced the "marijuana is madness" meme, English-language Mexican newspaper reports of pot atrocities were reprinted widely in the US -- sometimes the same Mexican press story would circulate for years in the US, being reprinted at different times by different newspapers, often with sensational embellishments. Mexico delivered a nicely-wrapped, full-blown Reefer Madness narrative into the eager arms of the likes of Harry Anslinger, who would use it as the basis of our very own version of Reefer Madness.

And that means we have to revise the standard narrative on the history of pot prohibition in the US. We didn't cram marijuana prohibition down Mexico's throat; the Mexicans did it themselves, and the process began long before the US began trying to impose its prohibitionist views on the rest of the world. And, as Campos makes abundantly clear, blaming it on racism directed at Mexicans is just too simple.

Home Grown is a most welcome and important contribution to the history of marijuana prohibition. It has broadened our understanding of how we got to this place, and it belongs on the book shelf of every serious student of the topic.

May 18, 1971: Tapes released years later reveal that sometime between 12:16pm and 12:35pm, President Nixon says to entertainer Art Linkletter, "... radical demonstrators that were here... two weeks ago... They're all on drugs, virtually all."

May 19, 1988: Carlos Lehder is convicted of drug smuggling and sentenced to life in prison without parole, plus an additional 135 years. He had been captured by the Colombian National Police at a safe house owned by Pablo Escobar and extradited to the US.

May 20, 1991: The domestic heroin seizure record is set (still in effect today) -- 1,071 pounds in Oakland, California.

May 20, 1997: Eighteen year-old Esequiel Hernandez, Jr., of Redford, Texas, becomes the first American to be killed on American soil by US soldiers in peacetime when he is shot on his own property by camouflaged Marines involved in a Joint Task Force-6 border drug interdiction operation. No drugs are found. Hernandez had never been suspected of or arrested for any criminal or drug-related activity.

May 22, 1997: Milwaukee, Wisconsin, Mayor John Norquist signs a measure into law decriminalizing first time possession of small amounts of marijuana after the proposal squeaks by the city council.

May 23, 2000: Eighty-five US troops arrive in Guatemala to participate in the two-week-long "Operation Maya Jaguar," intended to provide training for Guatemalan police, to carry out seizures of illegal drug shipments, and to facilitate joint counternarcotics operations.

May 17, 2001: Canada's House of Commons passes a unanimous motion to create a committee to examine the issue of non-medical drugs in Canada. Members of all five parties say they intend to discuss legalization, or at least decriminalization, of marijuana as part of a sweeping look at the country's drug strategy.

May 21, 2001: Geraldine Fijneman, head of the Amsterdam branch of the ayahuasca-using Santo Daime church, is acquitted by a Dutch court. Fijneman had owned, transported and distributed a DMT-containing substance, but the court ruled that her constitutional right to Freedom of Religion must be respected.

May 22, 2003: Maryland becomes the ninth state to relax restrictions on medicinal marijuana use for seriously ill patients when Governor Robert L. Ehrlich, Jr. signs a bill reducing the maximum penalty to a $100 fine. The law goes into effect on October 1. Ehrlich, the first Republican governor to sign a bill relaxing penalties for medicinal use of marijuana, signs the measure despite pressure from the Bush administration to veto it.

We inadvertently missed a week last week, but the corrupt cops didn't. Let's get to it:

In Hanford, California, a Hanford police officer was arrested May 3 on drug charges. Officer Ernesto Servin, 30, was arrested when he arrived for work at the police department and police found Oxycontin, methamphetamine, and marijuana in his car. Authorities suspect he got the drugs from arrests he made and cases he worked as a Hanford Police officer. He is charged with falsifying police reports and drug possession. He resigned from the department the same day.

In Newark, New Jersey, a former Newark police officer was convicted last Friday of shaking down drug dealers for cash, guns, and dope. Darious Smith was indicted in 2004 along with half a dozen other Neward police officers, and a jury found him guilty of conspiracy to commit official misconduct, official misconduct and theft. Five witnesses, including a former patrol partner, testified that he stole cash from dealers and planted guns and drugs on them.

In Miami, a former Hialeah Gardens police officer was convicted Monday of ripping off marijuana dealers and selling their stashes. Lawrence Perez, 44, and four other area men stole 10 pounds in one faked traffic stop and 14 pounds in another. They were also plotting to hit a major marijuana grow, but the FBI, DEA, and Miami-Dade police were onto them by then. Perez, a former detective, is looking at up to 40 years in federal prison. He will be sentenced July 26.

In Hartford, Connecticut, a former New York police officer was sentenced last Friday to 37 months in federal prison for taking bribes to let a drug courier go unmolested through a New York airport. Former Westchester County police officer Michael Brady, 36, took $20,000 in payoffs from drug dealers. He had earlier pleaded guilty to charges of extortion and receiving a bribe. Brady had been assigned to the Westchester County Airport, where a drug dealer regularly passed traveling between Connecticut and Florida. Brady went down after the dealer got caught up in a federal investigation of his oxycodone smuggling ring.

In Brownsville, Texas, a former reserve law enforcement officer was sentenced Monday to 13 year in federal prison after he was caught coming over a bridge from Mexico with 20 pounds of cocaine and heroin. Mercedes Perez, 55, was a Nueces County Constable's reserve officer when he got caught. He was convicted of conspiracy to possess with the intent to distribute heroin and cocaine and possession with intent to distribute heroin and cocaine.

The third time wasn't the charm for Colorado legislators trying to pass a "per se" drugged driving bill aimed directly at marijuana users. The bill died last year in the Senate, it died this year in the House, and on Tuesday, it died once again after Gov. John Hickenlooper (D) brought it back for consideration during a short-lived special session he called to deal with unfinished business.

The bill, House Bill 12S-1005, would have mandated that anyone found driving with more than five nanograms of THC per milliliter of blood was presumed to be guilty of driving while impaired. Prosecutors would have needed no other evidence of actual impairment to win a conviction.

The bill failed by a single vote in the Senate Tuesday, with senators split 17-17 on the measure. The bill had already won approval earlier in the day in the House.

The bill was opposed by medical and recreational marijuana advocates and some members of the state legislature, even some Republicans, who argued that it unfairly targeted pot users with a scientifically uncertain measure of impairment.

"I don't think it'll make our roads any safer," said Sen. Pat Steadman (D-Denver).

Once again, only one vote made the difference. Will the legislature now give up on its quest to criminalize marijuana users who drive? We'll have to check back next year.

There will be no hash bars or cannabis cafes in Copenhagen at any time in the near future. Over the weekend, the Danish government rejected Copenhagen's request to experiment with legalizing cannabis sales in the city.

In a letter to the Copenhagen city council, Social Democratic Justice Minister Morten Bødskov wrote that the government was rejecting the request because it feared it would lead to increased availability and use of the herb and because it had been linked to a variety of side effects.

"Because of this the government will not permit the experiment," Bødskov wrote.

City council members, who had overwhelmingly supported the request, said they were disappointed in the decision.

"It’s very disappointing," councilman and deputy mayor for social affairs Mikkel Warming told public broadcaster DR. "The prohibitive policies we have operated under in Denmark for so many years have not worked. You can still buy hash on street corners across the city which also means the hash is mixed up with other harder drugs. Criminals also pocket about two billion kroner a year from the trade."

Warming said he would continue to work for marijuana legalization and counseled patience, noting that it took a decade for parliament to approve a supervised injection room for hard drug users.

"Legalization would limit the gang conflict and it would also give us access to the group of users who have been left to the criminal environment," councilman Lars Aslan Rasmussen told Ritzau. "We had hoped that they would take our proposal seriously, as we have the support of 80% of the city council. Copenhagen has a serious problem because the gang conflict is a result of the trade in marijuana. The gangs turn over more money than 7-Eleven."

With the action by the Danish government, the black market profits of Denmark's hash slingers and pot dealers will remain safe for now.

Oklahoma Gov. Mary Fallin (R) last Thursday signed into law a bill designed to lower the state's prison population. The state's incarceration rate is first in the nation for female prisoners and third highest for males.

The bill, House Bill 3052, is expected to control the increase in prison growth by increasing substance abuse treatment, reducing violent crime, strengthening supervision, and reducing recidivism. The aim is to reduce prison costs, which have risen 41% in the past decade, while the prison population increased 15% and violent crime decreased 4%.

The bill requires substance abuse and mental health screening of defendants before they are sentenced so those who need treatment will be able to access it. It also requires that all freed prisoners do at least nine months of parole in a bid to reduce recidivism. And it provides for "intermediate revocation facilities" for parole and probation violators short of sending them back to prison. A measure that would have effectively reduced some sentences by allowing good time to accrue from the beginning of the sentence was dropped in the face of legislative opposition.

"Increasing public safety is a top priority of my administration and a primary function of state government. The reforms in HB 3052 will help to reduce crime and ensure our streets are safer for Oklahoma families," Fallin said in a signing statement. "In addition to lowering crime rates, reducing the incarceration rate and giving law enforcement more resources to fight crime, this bill will help us to save taxpayer dollars by helping our corrections system operate in a more efficient and effective way."

The bill was the result of years of effort by House Speaker Kris Steele (R-Shawnee) and Senate President Pro Tem Brian Bingman (R-Sapulpa), who shepherded it through the legislature. It came as part of the Oklahoma Justice Reinvestment initiative, a project of the Council of State Governments' Justice Center designed to enact "smart on crime" policies.

"Today marks the beginning of a tougher, smarter fight against crime," said Steele. "Police will get more resources, offenders will be held more accountable, prisons will have the space to incarcerate dangerous criminals and Oklahoma will be much safer as a result. We’re thrilled to have been part of the unprecedented collaboration across our entire criminal justice system that has delivered this meaningful law to the people of Oklahoma."

"We've made a historic public safety reform that puts Oklahoma's broken criminal justice system back on a sustainable path," said Bingman. "By being both tough on crime and fiscally conservative, this law will reduce violent crime, give crime fighters the tools to do their job and ensure our criminal justice system keeps Oklahoma families and communities safe."

The new law goes into effect November 1.

A Jacksonville, Florida, police officer shot and killed an unarmed drug suspect during a traffic stop early last Wednesday morning when the man reached down inside his car. Davinian Darnell Williams, 36, becomes the 28th person to die in domestic drug law enforcement operations so far this year.

According to Jacksonville Police Chief Tom Hackney, Officer Jeff Edwards pulled over Williams for "driving suspiciously in a[n]… area known for drug activity." Williams tried to evade Edwards by making sudden turns and running stop signs.

When Williams finally stopped, the chief said, he refused commands to show his hands and was moving around inside the vehicle. Officer Edwards moved from one side of the car to the other to get a better view of what Williams was doing.

"At that time, the suspect made a sudden motion, reaching down," Hackney said.

Edwards then opened fire, shooting seven times through a side window and hitting Williams with six of the shots. Williams died at the scene.

Police found 17 grams of powder cocaine in one of Williams' socks and less than a gram of crack cocaine in the other. There was no weapon on Williams or in the car.

Williams had a criminal record dating back to 1992, including possession of marijuana, sale and possession of cocaine, resisting arrest, and battery on a law enforcement officer.

Officer Edwards has been placed on administrative leave while the State's Attorney's Office investigates.

Williams' killing was the seventh shooting by Jacksonville police this year and the fourth fatal one. In 2010 and 2011, Jacksonville police shot eight people each year, and in both years, four of them died.

"These traffic stops are filled with inherent dangers," Hackney said.

special to the Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

Prosecutors are arguably the most powerful figures in the American criminal justice system. They decide which charges to bring, what plea bargains to offer, and what sentences to request. Given their role in the system and the broad powers they exercise, it is critical that they discharge those duties responsibly and ethically.

But according to attorneys and criminal justice reform advocates, prosecutors across the country are misbehaving -- and getting away with it. While the most common forms of prosecutorial misconduct are hiding exculpatory evidence and engaging in improper examination and argumentation, another form of intentional misconduct is the knowing use of false testimony to win convictions.

"Perjury can easily undermine a defendant's right to a fair trial," said Chicago criminal defense attorney Leonard Goodman.

He ought to know.

In 2009, Goodman represented Brian Wilbourn in a federal narcotics case in which prosecutors knowingly allowed an informant to testify that Wilbourn sold crack cocaine out of a penthouse apartment over a three-year period when he was in fact nowhere near the scene at any time.

"Mr. Wilbourn was safely locked away in prison when the informant testified that Wilbourn was selling drugs at the penthouse between 2002 and 2005," Goodman explained.

The US 7th District Court of Appeals overturned Wilbourn's conviction because of the perjured testimony.

"When the government obtains a conviction through the knowing use of false testimony, it violates a defendant's due process rights," wrote Judge Daniel Manion as he ordered the reversal.

And when a prosecutor knowingly allows perjured testimony to be heard, that's prosecutorial misconduct. In the Wilbourn case, Assistant US Attorney Rachel Cannon knew that her informant's testimony was false -- because Goodman told her so before the trial -- yet she has not been sanctioned in any way. That's not unusual.

Legal experts say most prosecutors dedicate themselves to do an ethical and professional job, but that some prosecutors repeatedly commit misconduct because they realize they most likely will never face serious punishment. Prosecutors have immunity from civil liability for their misbehavior, and the legal system seems unable or unwilling to effectively police itself.

Prosecutorial misconduct can have serious financial consequences for state and local governments. Taxpayers take the hit to retry cases thrown out because of misconduct, and they take another hit when states pay compensation to the wrongfully imprisoned.

But despite the seriousness of the issue, there has been little research done nationwide on the scope of prosecutorial misconduct. What research there is suggests that even misbehaving prosecutors have little to worry about.

A 2003 study conducted by the Center for Public Integrity, Harmful Error, found that among 11,452 documented appeals alleging prosecutorial misconduct between 1970 and 2002, approximately 2,012 appeals led to reversals or remanded indictments, indicating prosecutorial misconduct in 17.6% of the cases.

In California, the Veritas Institute issued a 2009 report, Preventable Error: A Report on Prosecutorial Misconduct in California, 1997-2009, which reviewed 4,000 complaints of misconduct and found it occurred in 707 of them. Only six prosecutors were disciplined.

In March, the Prosecutorial Oversight Coalition released research findings on Texas convictions between 2004 and 2008 that showed appeals courts found a pattern of prosecutorial error or misconduct in 91 cases, ranging from hiding exculpatory evidence to improper argument and examination. While the appeals courts found the errors "harmless" in 72 cases, affirming the convictions, they reversed 19 cases because of prosecutorial conduct "harmful" to the defendant.

Still, none of those prosecutors were disciplined, the report found. Only one prosecutor in the state was disciplined for misconduct during that period, and that was for misconduct committed before 2004.

"As best we can determine, most prosecutors' offices don't even have clear internal systems for preventing and reviewing misconduct, but perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct," said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.  "We don't accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there's no reason we should do so for prosecutors."

Prosecutors want to win cases, even at the expense of justice, said legal observers.

"It's a result-oriented process today, fairness be damned," said Robert Merkle, a former US Attorney in Florida.

That certainly seems to be the case in the Brian Wilbourn prosecution. He was charged along with 16 other defendants in December 2007 with numerous federal counts of possession and conspiracy to distribute crack cocaine, heroin, and marijuana at the Cabrini Green Public Housing Development in Chicago Illinois.

The DEA and prosecutors alleged that Wilbourn was part of the Gangster Disciples drug dealing gang led by Rondell "Nightfall" Freeman. When the DEA announced federal charges against the defendant, a spokesman said the agency was "upending the gang's flagrant drug dealing at public housing projects and  other apartments in the Chicago area."

Charging that the group was taking in $3 million a year, the feds played on a holiday theme.

"It's a season of giving, so our gift to the people is to let them live without constant fear of this drug organization all around them," said ATF Special Agent in Charge Andy Traver. "And our gift to Rondell Freeman and his organization is 20 years to life."

But in the end, prosecutorial misconduct gave the defendants a gift. Wilbourn, Freeman, and three other defendants who went to trial and were convicted had their convictions thrown out because prosecutors knowingly allowed perjured testimony to be heard.

"This was a case where prosecutors allowed an informant to testify falsely against my client, Brian Wilbourn," said Goodman. "Prior to trial, I informed the government that my client was in prison from 2002-2005 -- when the informant said he saw Mr. Wilbourn selling drugs in the company of co-defendant Rondell Freeman."

Prosecutors conceded that Goodman submitted the certified documents to them in December 2008, two months before the trial started, but they would later argue before Judge Lefkow they could not accurately verify the dates of Wilbourn's incarceration.

In one example, prosecutor Rachel Cannon noted that three separate entries in court documents said that Wilbourn was not in court in April 2002 and that a no-bail warrant had been issued for him. But Goodman explained that Wilbourn had in fact been arrested a week later, pleaded guilty to an offense, and had been sentenced to prison, from which he was not released until September 2005.

"Wilbourn's incarceration date was listed on records from Illinois Department of Corrections including the time period he was re-arrested and placed in the county jail," Goodman explained.

Despite Goodman's notice that Wilbourn was incarcerated during the period described in the indictment, the government plowed ahead to convict Goodman's client. And it did so in part relying on the testimony of informant Seneca Williams, who had rolled over for the feds and agreed to testify against others in exchange for a lighter sentence.

Williams testified at length about an apartment penthouse that was allegedly at the center of the conspiracy, frequently placing Wilbourn on the scene discussing sales and bagging up the drugs for distribution with Freeman and other players in the group.

Of particular significance to the conspiracy charge, Seneca Williams not only testified to seeing Freeman, Wilbourn, Hill, and Sanders transport and sell drugs at designated locations during specific time periods. Williams also went far as to identify Wilbourn's voice on two audio recordings -- which served as the basis for a conspiracy charge which carried up to life in prison.

"You mentioned that you saw Brian Wilbourn at this apartment as well, what did you see him do?" asked prosecutor Cannon during direct examination.

"I seen him use orange-striped bags to bag up crack cocaine, heroin and marijuana." Williams testified.

"And when was that?"

"That was early 2003."

During cross examination, Goodman confronted Williams with the fact that his client  was in prison from 2002 to 2005 and could not have been at the penthouse apartment discussing drug business like Williams said Wilbourn had been doing.

"Now Mr. Williams, isn't it true that Brian Wilbourn was in jail from April 23rd of 2002 until September 2005?" Goodman asked.

"I don't know it to be true," Williams replied.

Suddenly, Assistant US Attorney Kruti Trivedi objected, saying "That's not true."

"It is true, your honor," Goodman rejoined, and Judge Lefkow overruled the prosecutor.

Under continued intense questioning by Goodman, Williams confessed to other misdeeds, including previously perjuring himself in an earlier drug case against Rondell Freeman to help him beat that rap. He said he testified falsely in that case because he didn't want to lose his job and a place to stay at Freeman's car wash. He added that he decided to cooperate with the government because he was facing a minimum of 20 years in prison and was looking forward to receive a reduced sentence of 58 months. That gave Goodman an even larger opening.

"You would lie at Rondell Freeman's trial in state court because if he got convicted you might not get to live at the car wash, correct?" he asked.

"Yes," Williams responded.

"But you wouldn't lie to save yourself 15 years of your life?"

"No."

On redirect the government made no attempt to correct Williams' false testimony that he saw Wilbourn selling drugs between 2002 and 2005, when Wilbourn was in Illinois Department of Corrections. Instead the government tried to bolster Williams' glaringly inaccurate testimony:

"Have you been truthful and tried to the best of your ability to give approximate dates as you remember them?" prosecutors asked.

"Yes," he replied.

In a hearing outside the presence of the jury, Goodman informed Judge Lefkow that he had filed a motion to dismiss the counts against Wilbourn because of prosecutors allowing Williams' false testimony against his client.

Wilbourn had been "incarcerated from April 2002 until September 2005 -- and Williams' testimony about the events and conversations purportedly involving Wilbourn and co-defendants at the penthouse apartment on Granville during late 2002-2003, was false," Goodman told the judge. "The government had an obligation under to correct the record," he said.

But prosecutors weren't interested. "The government stipulated as to the dates of Wilbourn's incarceration and if Mr. Goodman wants to argue to the jury that Seneca Williams perjured himself, he's absolutely free to do that," retorted Cannon. "Our argument will be Williams was wrong about the dates but the facts remain true."

Judge Lefkow responded to Cannon's argument. "You know, you as the representative of the United States have an obligation to make sure the evidence you are presenting is truthful and accurate."

"We stand by everything that's been presented, your honor," Cannon replied.

Judge Lefkow then denied the motion to dismiss based on the perjured testimony, and the trial headed for its conclusion.

Even in closing arguments, Cannon continued to insist that Williams had not perjured himself. "Williams did not lie," she explained. "Don't think what he testified to about Brian Wilbourn's involvement with drugs never happened. Ladies and gentleman, it's for you to decide whether these witnesses were testifying to facts as they remember them or whether they were actually lying."

Goodman implored the jury to find his client not guility. "They put a liar on the stand and he got caught and the government still has the nerve to ask you to rely on Seneca Williams' testimony to convict. You should be offended."

The jury sided with the government and convicted all four defendants. The jury convicted Wilbourn and Freeman on the conspiracy charge to distribute more than 50 grams of cocaine, an offense that carried up to life in prison.

The defendants appealed, and on appeal, prosecutors continued to argue that they did not knowingly use false testimony to convict them. That even after Judge Lefkow found that when Cannon "bolstered William's false testimony it constituted prosecutorial misconduct. The government had a duty to correct false testimony."

Upon winning the appeal, Goodman felt vindicated and pleased that his client no longer faces life in prison for a conviction based on perjured testimony.

"It is an important opinion because it stands for the principle that federal prosecutors are not above the law and that telling the truth is more important than winning. Federal cases are based on the word of informants who understand the only way to get a lesser sentence is to help government prosecutors convict others," he said.

"Everybody knows these witnesses will lie, saying whatever the government want them to say to get a deal," said Goodman after winning the appeal. "The only difference in this case is we happened to catch one."

"No trial is perfect, and sometimes mistakes are made, but for a prosecutor to put perjury on the witness stand that is scary," said Mark Vinson, a former Harris County (Houston), Texas, Chief Prosecutor, now in private practice as a criminal defense attorney.

Despite winning their appeal, Wilbourn and the others remain in federal custody pending the resolution of other charges against them.

Nothing has happened to Assistant US Attorney Cannon or her colleagues.

[Editor's Note: There is more on prosecutorial misconduct coming from Clarence Walker. In his next installment, Walker will look at how a bulldog lawyer exposed misconduct in a major cocaine case with Mexican cartel connections. Walker can be reached at cwalkerinvestigate@gmail.com.]