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US, Few Others Object to Bolivia UN Coca-Chewing Bid

Five Western countries -- the US, Canada, Britain, Italy, and Sweden -- have formally objected to Bolivia's rejoining the 1961 UN Single Convention on Narcotic Drugs with a reservation that allows for the traditional habit of coca leaf chewing, the Transnational Institute reported last Friday. The move is the latest twist in the Latin American nation's effort to remove the international proscription on the ancestral habit.

coca plant (UNODC)
But the Western objections are far from sufficient. Another 58 signatory countries would have to object by next week to block Bolivia's bid, and there is little sign of that happening.

[Update: On Wednesday, Russian President Vladimir Putin submiltted a bill to the Duma objecting to Bolivia's reservation, but it wasn't clear if that amounted to a formal objection.]

Coca leaf, the raw material from which cocaine is produced, has been used with little ill effect as a hunger-suppressant and mild stimulant for thousands of years in South America's Andean region. It was included as a proscribed substance in the 1961 Convention based on a 1950 study that has been found to be unscientific and blatantly prejudiced. The 1961 Convention called for the chewing of coca leaf to be phased out by 1989.

Led by former coca grower union leader Evo Morales, Bolivia tried in 2011 to amend the 1961 Single Convention to remove the provision requiring it to ban coca leaf chewing. If no countries objected, the request would have been automatically granted, but the US, supported by the International Narcotics Control Board organized a "friends of the convention" group to rally against the move. In all, 18 countries objected to Bolivia's request.

Among Latin American countries, only Mexico's conservative government objected. Colombia objected at first, but withdrew its objection, while Costa Rica, Ecuador, Uruguay, and Venezuela went on record supporting Bolivia's request even though they weren't required to. The objecting countries were all European, except for Canada and the US and Japan and Singapore.

Following the failure of its effort to amend the 1961 Convention, Bolivia withdrew from it and requested re-accession with a reservation regarding the coca chewing provision. The Convention allows for such a procedure, which can be blocked only if one-third of the member states object. There are 184 countries that have signed the Convention, meaning 62 must object to stop Bolivia's re-accession.

So far, just a few have done so. Other countries have only until January 10 to weigh in.

Vienna
Austria

Chronicle Book Review Essay: Two Faces of the Drug War

Cornbread Mafia: A Homegrown Syndicate's Code of Silence and the Biggest Marijuana Bust in American History (2012, Lyons Press, 375 pp., $24.95 HB)

Operation Fly Trap: LA Gangs, Drugs, and the Law, by Susan Phillips (2012, University of Chicago Press, 174 pp., $18.00 PB)

http://www.stopthedrugwar.org/files/cornbread-mafia.jpg
It's a long way from the Bluegrass Country of central Kentucky to the bungalowed ghettos of South Central Los Angeles, and it's an even greater distance culturally than geographically. In the first locale, the white descendants of Catholic distillers turned moonshiners tend their crops in hidden hollows, distrust of police by now second nature. In the second, the black descendants of post-World War II factory workers scramble to survive in a post-industrial landscape, slinging crack and dodging gang violence, with the police viewed as little more than an occupying force.

Cornbread Mafia and Operation Fly Trap focus on two groups of people separated by time, race, and culture, but united by a common adversary: the repressive apparatus of the drug war. Cornbread Mafia tells the story of some bad ol' good ol' boys who made Kentucky synonymous with top-grade domestic marijuana production in the '80s and who generated the largest domestic grow op bust ever, while Operation Fly Trap tells the story of a small group of LA cocaine suppliers and crack dealers in the early '00s who were wrapped up and sentenced to lengthy prison sentences in a pioneering use of innovative policing and prosecutorial strategems.

While both books critically address the interaction of groups of socially-defined criminals with a  law enforcement complex grown up to feed off them, they feel and read quite differently. Cornbread Mafia is written by a journalist with an intimate knowledge of Lebanon, Kentucky and surrounding Marion County, and it reads like a true crime thriller, full of hillbilly noir and great and crazy tales, except that unlike most of the genre, it is sympathetic to and gives voice to the deviant "others." It's the kind of dope tale you pick up and don't put down until you're done.

It centers on a 1987 Minnesota pot cultivation operation that was busted when an early snowfall killed the surrounding corn hiding it. Organized by Marion County grower and trafficker Johnny Boone, the massive Minnesota grow was the largest ever busted, and by the time the feds had unraveled things, some 70 Kentuckians had been indicted. Although not a one of them rolled over on his peers, many of them went away for long stretches, sentenced under new RICO laws designed to bring the pain to the backwoods pot scofflaws. Boone himself did 15 years.

But that bust and the indictments that followed -- much ballyhooed, of course, by back-patting DEA officials, federal prosecutors, and state law enforcement honchos -- were a long way down a road that wound back to those Prohibition era moonshiners -- Lebanon's location as hot spot on the 1950s and 1960s chitlin circuit, where black performers including a skinny guitarist named Jimi Hendrix performed, and the return of reefer-exposed Vietnam War vets in the 1960s and 1970s.

I recall traveling to Washington, DC, to attend the annual 4th of July smoke-in in 1978. Before DC legends Root Boy Slim & the Sex Change Band played their set, a gangly man in a suit bearing a down home accent took to the stage, introduced himself as Kentucky lawyer and legalization advocate Gatewood Galbraith, and threw large colas of weed into the crowd, yelling, "This is the real Kentucky Bluegrass!" I didn't have a clue then, learned about Galbraith and the Appalachian pot growing scene over the intervening years, but didn't really know the back story about the whole Kentucky scene. Now, thanks to Cornbread Mafia, I feel like I do, and Higdon tells it with grace and empathy.

It's a story that isn't over. Once Johnny Boone got out of federal prison, he couldn't help but return to his old ways. In 2008, he got busted growing 2,400 plants in a neighboring county. Facing life in federal prison as a three-striker, Boone vanished. The feds still haven't found him.

http://www.stopthedrugwar.org/files/operation-fly-trap.jpg
Operation Fly Trap, on the other hand, is written by an academic, published by an academic press, and reads like it. Granted, ethnographer Susan Phillips knows her stuff -- she spent years working in the neighborhood before even embarking on this project -- and she brings heart and passion to her writing, crafting a compelling and fascinating narrative, but it can still be heavy going at times. Still, even if sometimes wrapped a little too tightly in academic-speak, Phillips is exposing and addressing vital issues of race, class, and the structuring of criminality, and her critique is important and incisive.

Operation Fly Trap, a project of a multi-agency, state-federal joint task force aimed at gang suppression, drew its name from Tina Fly, the central figure in a crack cocaine operation in two Bloods-controlled South Central neighborhoods. Before it was done, it had wrapped up two dozen people from the tightly knit community, many from the same families, and sent them off to long federal prison sentences under anti-gang sentencing enhancements.

Like military commanders patting themselves on the back over the accuracy of their weapons, law enforcement and prosecutors congratulated themselves on the "precision" of their strike against the Tina Fly operation and the surgical removal of the cancer from the community.

But Phillips calls into question both the success of the operation and the means used to conduct it, and along the way, shines a bright light on the ways in which the impoverishment of communities like South Central and their ravaging by both criminals and those sent to catch them is a matter of public policy -- not merely personal pathology, the narrative offered up by all those men in suits at their press conferences.

Indeed, it is the situation that is pathological when the very criminals being hunted are the community's pillars, its breadwinners, and when their removal does not remove criminality, but enhances it. That pathology is only enhanced by the ongoing struggle between the community's criminals and the police, the use of snitches who sow mistrust and suspicion on the street, and by our refusal as a polity to do anything but keep reproducing those conditions that generate such predictable outcomes.

Phillips also documents how, as criticism of the mass incarceration of non-violent drug offenders grew ever louder, the use of anti-gang policing and prosecutions only intensified. "Operation Fly Trap was an attempt to make [mass incarceration] more palatable by recasting nonviolent drug offenders as intimately related to the lethal violence of gangs," she writes. Along with drug sentencing reform and new gang legislation, the Fly Trap task force "represented a need to re-present the drug war as healthy and justifiable."

It's worth noting that although the Fly Trap defendants were pursued under the banner of the war on gangs, they charges for which they were prosecuted were drug charges. And Operation Fly Trap was by no means unusual. In fact, Phillips notes, more than 5,000 gang investigations were mounted nationally between 2001 and 2010, resulting in 57,000 arrests and 23,000 convictions. With sentencing reforms having taken some of the bite out of the federal crack laws, the gang enhancements allow prosecutors to still hold the threat of decades of prison over the heads of those rounded up.

Cornbread Mafia and Operation Fly Trap focus in on different episodes of our perpetual war against the criminality we create through drug prohibition. Both are exceptionally useful in providing what is too often missing in drug policy discussions: the broader context. Journalist Higdon basically gives us a history of Marion County and situates those back woods pot criminals squarely within it, while ethnographer Higdon lays out the stark landscape of black LA, emphasizes how public policy decisions have created that landscape, and shows how other public policy decisions -- around economic policy, education, access to health and mental health services, incarceration as a response to social problems -- have created a milieu where Operation Fly Trap can be recreated in perpetuity.

Read Cornbread Mafia because it's a rollicking gas, but read Operation Fly Trap, too, because it's an eye-opening, sobering look at the whole penalization industry we're created to deal with the unruly underclasses we've created.

Colombia Okays Prescriptions for Addicts in Bogota

President Juan Manuel Santos has given the go-ahead to Bogota Mayor Gustavo Petro's plan to prescribe otherwise illicit drugs to addicts in the Colombian capital, according to Colombian press reports (and Colombia Reports, the first English-language source with the story). The announcement came after the pair met to discuss the matter last Friday.

Santos and Petro at press conference announcing the initiative (screen shot from Caracol TV)
"We will create physical spaces in the most violent zones of the city where the drug addicts, mostly youth, can get away from being illegal and dependent on the criminal gangs," Petro said after the meeting.

The primary problematic drug on the streets of Bogota is, unsurprisingly, cocaine.

The colorful, left-leaning mayor, who suffered death threats after exposing broad links between the right-wing paramilitaries and Colombian politicians as a senator and who came in fourth in the 2010 presidential elections, first proposed the idea of drug consumption sites last month, but Santos was initially cool to the idea.

"A large part of the violence and crime that still persists in the city derives from the small-scale consumption and trafficking of drugs... We should allow some centers for addicts that provide treatment... where the addict can consume under relative control, without doing damage to society," Petro said when he initially broached the idea.

Santos seemed dubious when he responded days later. "This leap into the dark seems irresponsible to me because one could cause a lot of damage to society, youth and the country," he said.

But Petro appears to have swayed him, confirming after the meeting that the national government had approved his proposal. He needed the government's approval for constitutional reasons, he said.

"The only way to authorize the use of illicit drugs is if it is part of a medical treatment and prescribed by a doctor. We dared to present this proposal publicly, but we could not implement it without permission from the national government."

It's unclear at this point when the plan will be implemented. It's also unclear how the idea of providing addicts prescriptions for their drugs is going to play with the International Narcotics Control Board, the UN Office on Drugs and Crime, and the US government, but it looks like the Colombian government of President Santos is willing to test the limits. Switzerland, Germany, Denmark, The Netherlands and Canada (in two cities) all have such programs for heroin.

Bogota
Colombia

Bolivia, Venezuela Reject US Drug Criticism

Last Thursday, the White House released its annual determination of major drug trafficking or producing countries, the "majors," singling out Bolivia, Burma, and Venezuela as countries that have failed to comply with US drug policy demands. That has sparked sharp and pointed reactions from Bolivia and Venezuela.

Evo Morales (wikimedia.org)
"I hereby designate Bolivia, Burma, and Venezuela as countries that have failed demonstrably during the previous 12 months to make substantial efforts to adhere to their obligations under international counter-narcotics agreements," President Obama said in the determination.

That marks the fourth year in a row the US has singled out Bolivia and Venezuela, which are left-leaning regional allies highly critical of US influence in Latin America. But while the US has once again put the two countries on its drug policy black list, it is not blocking foreign assistance to them because "support for programs to aid Bolivia and Venezuela are vital to the national interests of the United States."

Despite that caveat, Bolivia and Venezuela were having none of it.

"Venezuela deplores the United States government's insistence on undermining bilateral relations by publishing this kind of document, with no respect for the sovereignty and dignity of the Venezuelan people," the Venezuelan Foreign Ministry said in a communique last Friday.

Venezuela "rejects in the most decided manner the accusations of the government of the United States," the communique said, adding that the presidential determination is "plagued with false statements, political preconceptions and veiled threats," which only repeat its "permanent line of aggression against independent sovereign governments."

Venezuela also counter-punched, accusing the US of allowing "a fluid transit" of drugs across its borders" and "the laundering of capital from drug trafficking through the financial system."

"The government of the United States has become principally responsible for this plague that is the scourge of the entire world," it said.

The foreign ministry added that Venezuela's anti-drug efforts improved after it kicked out the DEA in 2005, that it has been free of illegal drug crops since 2006, and that it has actively pursued leading drug traffickers, including 19 it had extradited to the US since 2006.

Bolivian President Evo Morales, for his part, said the US, home of the world's largest drug consumer market, had no grounds on which to criticize other countries about its war on drugs.

"The United States has no morality, authority or ethics that would allow it to speak about the war on drugs. Do you know why? Because the biggest market for cocaine and other drugs is the United States," Morales said in a Saturday speech. "They should tell us by what percentage they have reduced the internal (drug) market. The internal market keeps growing and in some states of the United States they're even legalizing the sale of cocaine under medical control," the Bolivian president said.

It's unclear what Morales was trying to say with that latter remark. Although as a Schedule II drug, cocaine can be and occasionally is used medically in the United States, there are no current moves by any US state to take that further. Some 17 US states and the District of Columbia have, however, moved to legalize the distribution of marijuana under medical control.

"I'm convinced that the drug trade is no less than the United States' best business," Morales added, noting that since the first international drug control treaties were signed in 1961, drug trafficking has blossomed, not declined. He said he has suggested to South American leaders that they form a commission to report on how well Washington is doing in its war on drugs.

Morales also took the occasion to lambaste the US for opposing Bolivia's request before the United Nations to modify that 1961 treaty to acknowledge that chewing coca leaf is "an ancestral cultural practice" in the Andes.

Like Venezuela, Bolivia protested that it, too, has been fighting drug trafficking. The Bolivian government said that it had seized 182 tons of cocaine since Morales took power in 2006, compared to only 49 tons confiscated in the previous five years. Bolivia has seized 31 tons of cocaine so far this year, most of it from Peru, the government said.

The US presidential determination named the following countries as major illicit drug producing or trafficking countries: Afghanistan, the Bahamas, Belize, Bolivia, Burma, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Laos, Mexico, Nicaragua, Pakistan, Panama, Peru, and Venezuela.

Colombia, FARC Rebels Set Peace Talks

For the first time in nearly a decade, the Colombian government will sit down for peace talks with the Marxist guerrillas of the FARC, which has been fighting to create a socialist Colombia since 1964. President Juan Manuel Santos broke the news in a nationwide address last Tuesday night, and the FARC have confirmed that the talks are on.

President Santos addresses the nation on peace talks. (presidencia.gov.co)
He would seek "a definitive peace" with the rebels, he said. "Any responsible leader knows he can't let pass up a possibility like this to end the conflict. No doubt there are risks," said Santos. "But I believe history would be much more severe with us all if we did not seize the opportunity."

The announcement of peace talks does not mean an immediate end to the fighting, however, and that could prove problematic.

"Military operations will continue with the same or stepped-up intensity," Santos said, adding that the talks would not be open-ended. "They will be measured in months, not in years," he said. "If there are not advances, we simply won't continue."

"It's going to be so much harder to negotiate while people are being extorted and oil pipelines are being attacked, child soldiers are being recruited and land mines are being laid," Adam Isaacson, a Colombia expert with the Washington Office on Latin America told the Associated Press.

The agreement was brokered with the assistance of Cuba and Norway, which will "facilitate" the coming peace talks. Chile and Venezuela will act as observers.

The last round of peace talks between the government and the FARC went on fruitlessly for more than three years beginning in 1999 and ended when a frustrated President Pastrana sent the Colombian military into the FARC safe haven Pastrana had ceded at the beginning of the talks.

FARC art (farc-ep.co)
Since then, the FARC has suffered militarily as Colombia has put US assistance to the tune of $700 million a year to work. Its original leadership has been killed or died of old age, and the number of guerrillas has dropped from about 20,000 to about 8,000.

But the FARC has also been killing Colombian soldiers at a higher rate than ever. It remains ensconced in its rural redoubts supported by a loyal peasantry, and continues to profit from the coca and cocaine trade.

The FARC's role in the drug trade will be a complicating factor in the talks. The US is seeking five of the group's six secretariat members on drug trafficking charges.

The FARC also seeks fundamental reforms in the Colombian state and economy, which is also likely to prove problematic. Although President Santos has signaled he is willing to discuss agrarian reform and rural development, he is likely to run into fervent opposition from wealthy rural interests who allied themselves with former President Alvaro Uribe and rightist paramilitaries during his term in office.

The paramilitaries killed thousands and generated tens of thousands of internal refugees, trafficking themselves in cocaine the whole time, until they reached an agreement to demobilize under Uribe.

Will the world's oldest insurgency be coming to an end soon? Stay tuned.

Colombia

Colombian Coca Cultivation Ticks Upward

Coca cultivation in Colombia was on the rise again last year for the first time since 2007, according to the UN Office on Drugs and Crime's (UNODC) latest annual Colombia Survey. The survey, which is based on satellite and aerial surveillance photography, estimated that coca planting spread to 158,000 acres last year, up 3% over the previous year. 

coca plant (UNODC)
While representing a new tick upward, last year's acreage devoted to coca cultivation was still well below the 403,000 acres planted in 2000, the year President Bill Clinton's Plan Colombia kicked in. Since then, the US has spent more than $7 billion in its effort to wipe out the coca crop and the cocaine traffic derived from it.

Despite the US assistance, Colombia has been unable to eliminate either the coca crop or the cocaine trade. Powerful armed groups, including the peasant guerrilla army of the FARC on the left and various paramilitary groups on the right, continue to profit from the trade while battling (or colluding with) the Colombian state.

UNODC also found that despite the increase in the area under cultivation, the amount of cocaine produced last year was 1% less than in 2010. Colombia produced 345 tons of cocaine last year, almost exactly as much as Peru did, leaving the two countries in a dead heat in the race to be named the world's number one cocaine producer. Bolivia was third.

The biggest increases in coca cultivation were in Putumayo and Caqueta departments near the border with Ecuador, where the FARC still maintains a strong presence. And more than 60% of cultivation is located in only four departments -- Narino, Putomayo, Guaviare, and Cauca -- where the FARC and the paramilitaries fight for control over crops and smuggling routes.

"That area has always been pretty ungoverned, it is basically wired for getting drugs out," said Adam Isacson of the Washington Office on Latin America. "The 2011 results make apparent that momentum toward reduced coca-growing has once again stalled," he told Reuters.

Colombia

Danish Parliament Okays Drug Consumption Rooms

As of next week, supervised injection (and other drug consumption) sites will be legal in Denmark. Earlier this month, the Danish Parliament voted 63-43 to allow the facilities to open, including language that instructs police and prosecutors to not search, seize, and prosecute users in possession of "small quantities" of drugs.

the supervised injection site in Vancouver (vch.ca)
Just what "small quantities" are is up in the air at the moment. Guidelines from the attorney general say the amount should be 0.2 grams of heroin or cocaine or less, but a Supreme District Court ruling held that a man caught in possession of 1.37 grams of heroin had it for personal use.

The new law not only allows for supervised injection sites, but also allows Danish municipalities to establish facilities for smoking or snorting heroin or crack cocaine.

The law was impelled by the activism of the Danish Street Lawyers, who describe themselves as "hard core harm reducers," and who published a legal paper and press release during last year's election campaign calling for drug consumption rooms and arguing that the only obstacles to them were political -- not legal. Then, just days before last September's election, the nonprofit group Social Entrepreneur opened a mobile drug consumption room in Copenhagen, drawing more attention to the issue.

After a left-wing minority government won the election, the Liberal Alliance, one of the governing coalition's members, pushed for movement on drug consumption rooms, and after six months of inaction, the government finally introduced a bill in April. But the Street Lawyers objected to provisions of that bill, including one that required drug consumption room staff to report to police on their clients' whereabouts, and the bill was amended to remove the language.

Denmark will now join a small but growing number of countries that allow supervised injection sites as a harm reduction measure. Those countries include Australia, Canada, Germany, the Netherlands, Spain, and Switzerland.

Copenhagen
Denmark

A Festival of Lies: Perjury in a Michigan Cocaine Case [FEATURE]

special to Drug War Chronicle by Clarence Walker, cwalkerinvestigate@gmail.com

[Editor's Note: Unless otherwise noted, the information in this article comes from official court documents in the cases under discussion below. Those documents are available online here.]

disgraced former Wayne County Assistant DA Karen Plants (lawreport.org)
Assistant District Attorney Karen Plants was head of the drug unit at the Wayne County District Attorney's Office in Detroit, Michigan, when the suburban Inkster Police Department scored a major drug bust in 2005. Acting on a "reliable tip," officers reeled in 47 kilos of cocaine, the largest haul the Inkster authorities ever made.

Swiftly taken down were Alexander Aceval, Ricardo "Richard" Pena, Chad Povish and Brian Hill, and police estimated the value of the cocaine in the millions. The bust was highly celebrated by police and prosecutors, evidence that the war on drugs was working.

Yet what came next blew the lid off one of the worst cases of police, prosecutorial, and judicial misconduct in Michigan history. The arresting officer, the prosecutor, and the trial judge ended up being charged with a string of crimes ranging from obstruction of justice to perjury.

As Circuit Judge Mary Waterstone, who presided over the trials of Aceval and Pena, told a Michigan Attorney General's Office investigator, prosecutor Plants expressed concern that the life of the informant who made the "reliable tip" was in danger. That informant was Chad Povish, who set up his co-defendants to be arrested.

Waterstone said Plants told her she discussed the looming perjured testimony with Tim Baughman, head of the DA's Office appellate division, who told Plants to inform Waterstone, but not the defense. Baughman also suggested the record of the private conference be sealed.

Waterstone and Plants then agreed to knowingly allow perjured testimony by Povish and the arresting officers -- that police didn't know Povish -- into the trial in a bid to protect his identity. Plants later confessed that she had acted improperly.

"I informed the court when the witnesses lied and I did so in a manner to protect the identity of the confidential informant," she said. "In retrospect, I would have handled the case differently. I realize that allowing false statements is wrong."

In their private meetings, Waterstone and Plants agreed with arresting officers Sergeant Scott Rechtzigel and Detective Robert McArthur and Povish to hide from defense attorneys evidence that would reveal Povish was the snitch who set the bust up.

Povish later told investigators that Plants coached him to testify falsely that he wasn't an informant but only an innocent party to the offense. Povish said the message from then-prosecutor plants was clear: "I didn't know either of the officers." But this wasn't true. Povish was a paid informant for the Inkster police. He also personally knew the officers whom he helped to make the biggest drug bust of their careers.

Police contradicted Povish's story when they finally confessed that he tipped them off about the cocaine in order to collect 10% of Aceval's assets, the standard finder's fee in Inkster. Povish had done the same with other drug dealers in the past. He would later be granted immunity for his perjury in the Aceval and Pena case in return for testifying truthfully against the police, the prosecutor, and the judge.

disgraced former Wayne County Judge Mary Waterstone (3rdcc.org)
Both Plants and Waterstone said they felt the informant's life was in danger if he were exposed as the person who helped police take 47 kilos from the Mexican drug cartels. But there was never any testimony from a witness or police to substantiate those fears. The judge's and prosecutor's fears may or may not have been justified, but their actions trampled on the constitutional rights of the defendants. And it doesn't end there.

Michigan attorney David L. Moffitt represented Aceval on appeal after he and Pena were convicted on perjured testimony. He insists that police were playing fast and loose with the truth from the time the bust went down.  The arresting officers wrote in their reports that they saw Aceval and Pena place kilos of cocaine into Povish's Oldsmobile, he points out. But Povish himself testified that he and Brian Hill loaded the coke.

"Immediately upon the arrests of Alexander Aceval and Ricardo Pena, the perjury scheme went into motion," Moffitt declared at the time.

Allowing perjured testimony is absolutely inexcusable, said Wayne State law professor Peter Henning.

"There's no circumstance in which perjury should knowingly be allowed to be put before a jury. And if it is discovered afterward, it needs to be corrected and that's true even in a case such as this one," he told the Metro Times.

Although this was clearly a case of multi-level misconduct, it worked -- at least at first. Aceval and Pena were convicted based in part on perjured testimony and sentenced to prison. Povish and his friend Brian Hill were never charged. Justice had been served, or so it seemed.

The Tables Turn

But things took a dramatic turn when Moffitt and James Feinburg, Aceval's and Pena's appellate attorneys, discovered the secret meetings between prosecutor Karen Plants and Judge Mary Waterstone. The Wayne County legal structure shuddered as if hit by an earthquake. When news broke that the prosecutor enlisted the judge in the case to go along with perjury by police and Chad Povish during Aceval's and Pena's trials, lawyers and concerned citizens were stunned.

Judge Waterstone was charged with misconduct in office, a felony which carried five years in prison. Plants and the officers were charged with obstruction of justice and perjury, offenses punishable by life in prison. If convicted, Plants would fall from her prestigious position as head anti-drug prosecutor for the DA's Office to being a criminal ringleader in what had been the biggest case of her drug-fighting career.

"Prosecutor Karen Plants intentionally conspired with Judge Mary Waterstone and the officers to hide the truth about Chad Povish being the informant," Moffitt recently told this journalist during an interview.

"Plants and Judge Waterstone were in on the fabrication from the beginning, yet Plants told the court she had not spoken to Povish before Aceval and Pena's preliminary examination. "Without Povish's pejury at the preliminary hearing Mr. Aceval could not have been bound over for trial," Moffitt said.

Perjury in the Aceval-Pena case is another classic example of prosecutors and law enforcement officers engaging in shady tactics to win at all costs. When DA Karen Plants allowed lies to infect the case against Aceval and Pena, her actions amounted not only to prosecutorial misconduct, but rose to the level of criminal behavior.

Attorney David Moffitt
Plants' behavior was extreme, but prosecutors cutting corners to win convictions has been a problem all over the country. Reports of rampant prosecutorial misconduct have led Senator Lisa Murkowski (R-AK) to introduce Senate Bill 2197, the Fairness in Disclosure of Evidence Act, which had a hearing in the Senate Judiciary Committee last week. The bill is a bipartisan proposal with five cosponsors that requires federal and state prosecutors to turn over to defendants all evidence favorable to their case. The bill would also impose penalties when prosecutors fail to do so.

Anatomy of a Bust

Alexander Aceval owned a popular club in Farmington Hills outside Detroit called "J-Dub." Aceval's club generated lots of business and he made lots of money. Chad Povish was a professional carpet installer who friends said once wanted to become a cop -- and sometimes acted like one. But instead he became a paid snitch for the Inkster Police Department under narcotic detective Robert McArthur.

Povish met Aceval through a friend named Bryan Hill. Hill worked at Aceval's club as a bartender. During conversations between Povish and Hill, Hill confided to Povish that Aceval sold more than liquor. This startling news piqued Povish's interest.

On March 11, 2005, according to court records, club owner Aceval offered Povish a cool $10,000 to drive a load of cocaine (worth millions) to a designated location when the drugs arrived from a Mexican drug cartel connection in Texas. Povish was excited. He thought he'd hit the jackpot!

First, he contacted Detective Robert McArthur and laid out the plans about to go down. McArthur called Sergeant Scott Rechtziel to assist. A trap was set for the suspected dealers, and the officers were anxious to make the biggest drug bust of their careers.

Once Aceval's Texas connection delivered 47 cocaine kilos, Povish and and Hill stashed the contraband into duffel bags and placed them into Hill's 1986 Oldsmobile vehicle located outside Aceval's club. Aceval allegedly directed Povish and Hill to transport the drugs to a certain location. Aceval followed in a separate vehicle. Pena was arrested near the club with cocaine in his pocket.

But the deal was doomed. As soon as the vehicles hit the highway, the police swooped in and stopped Povish and Aceval's vehicle. Everyone was arrested. But Povish and Hill were released. Aceval and Pena were charged with possession with intent to distribute over 1,000 grams of cocaine including conspiracy to deliver over 1,000 grams of cocaine.

Courtroom Drama: Here Comes the Judge

Police and prosecutors wanted to hide the fact that Povish was the snitch, and that he was motivated to target Aceval because of the chance for a big payday -- he would receive a percentage of Aceval's not insubstantial assets. While Judge Waterstone and Prosecutor Plants would later say they hid the information about Povish's
informant status from the defense to protect him from being killed, it also removed potentially damaging lines of inquiry for the defense team.

"It was always known that there was an informant," said appellate attorney Moffitt.

Aceval's trial attorney, James Feinberg, had also suspected Povish or Hill as the informant and that perjury existed. Before trial, attorney Feinberg asked the court to identify the confidential informant. During an evidentiary hearing on June 17, 2005, Judge Waterstone conducted an interview with Detective McArthur. McArthur informed the judge that he and Sergeant Rechtizigel knew that Povish was the confidential informant, adding that Povish had been paid $100 for his services and, "He was going to get 10% of whatever we get."

The conference meeting record was sealed. Judge Waterstone denied Feinberg's motion to identify the informant although the officers had already told her that Chad Povish was the informant.

It kept getting worse. As a court reporter took down notes during a meeting between DA Plants and Judge Waterstone, Plants sounded worried as she explained how defense attorneys for Aceval and Pena were trying to obtain phone company records for Povish and Hill's cell phones. Plants mentioned she heard from a jailhouse informant that Aceval and Pena had targeted Povish or Hill as the guys who gave them up.

Waterstone heeded Plants' concerns. Instead of letting the defense attorneys know about the meeting as the law required, Waterstone issued an order to the phone carriers informing them not  to release the cell records.


Subsequently, attorney Feinberg fired off another motion to have Waterstone to suppress other specific evidence. At a hearing on September 6th 2005, Sgt. Rechitzel lied when he testified, in response to defense counsel's questioning, that he "never had any contact with Povish before the arrest of  Aceval and Pena on March 11th 2005."

Even though prosecutor Plants knew the officer was lying, she never objected. But there was more.

On September 8, 2005, in another private conference without defense attorneys present, the prosecutor admitted to Waterstone she knew Sgt. Rechitzel lied about denying involvement with Povish and Hill prior to the time he arrested Aceval and Pena.

"I let the perjury happen because I thought an objection would reveal the identity of the informant," Plants said.

Judge Waterstone agreed with Plants. "Given the circumstances, it was appropriate for the officer to lie," she said in the sealed record of the meeting.

In his appeal, attorney Moffitt asserted that a transcript showed that Plants asked pointed questions of Povish and both officers, questions which elicited false responses, which Plants knew were false but never corrected.

During trial on September 12, 2005, Chad Povish took the stand and repeated the lie that he never met officers Rechtizgel or McArthur before they stopped his cocaine-loaded vehicle and lied again when he testified that neither officer offered him a deal of any kind. He also testified he never knew what the duffel bags contained.

In closing arguments to jurors, Plants characterized Chad Povish and Bryan Hill as "dummies stupid enough to be mules."

"The prosecutor's argument misled jurors about Povish's true role in actually helping police to arrest Aceval and Pena," Moffit noted.

Aceval's trial ended in a hung jury while Pena was convicted on drug charges. Meanwhile the attorneys for both men filed appeals on their behalf. Pena's conviction was overturned. Pena's reversal exposed what the attorneys already knew: a conspiracy to cover up perjury had been going on.

Prior to Aceval's new trial, Moffitt  and his co-counsel encountered another shocker: Despite Judge Waterstone's and DA Plants' admissions that they allowed perjured testimony by the cops and the informant in the first trials, the new judge would allow DA Paul Bernier to call Waterstone, Plants, informant Chad Povish, and the cops as witnesses in the retrial of Aceval to explain why false testimony wound up in the original case.

"That was incredible," Moffitt said.

Harmless Error

Once the court records detailing the secret meetings between Plants and Waterstone discussing the perjured testimony of Povish and the police officers were unsealed, attorney Moffitt filed a motion to quash the indictment against Aceval to block a retrial. A new judge, Vera Jones, appointed to the case after Waterstone recused herself, denied Moffitt's motion to dismiss.

Moffitt appealed, but the appellate court upheld Jones's ruling without much explanation. The appeals court also refused to find that Plants had committed prosecutorial misconduct. Moffitt appealed to the Michigan Supreme Court. In December, 2010, the Supreme Court rejected the appeal.

"The high court's failure to summon a majority to review whether judicial and prosecutorial misconduct can be a basis to convict may relegate Michigan's justice system to one worthy of a third world dictatorship," Moffitt told the Detroit News.

The Quest for Justice

David Moffitt is not a quitter when it comes to fighting for the underdogs caught up  in the criminal justice system. He has been a passionate advocate to see that the public officials in the prosecution of Alexander Aceval and Richard Pena are punished not only in state courts but also to face charges for civil rights violations in federal court.

"This case should be looked at closely by the feds," Moffitt said.

Moffitt continues to wonder how much the upper echelons of the Wayne County District Attorney's Office knew about Plants' subornation of perjury in the Aceval and Pena trial. He recalls Wayne County Chief Prosecutor Kym Worthy remarks about her duty to prosecute former Detroit Mayor Kwame Kilpatrick for perjury.

"Witnesses must give truthful testimony and we demand that they do," she said then.

"Ms. Worthy does not hold herself or her employees to the same standards," Moffitt said."There's absolute proof that Worthy's Assistant DA Karen Plants confessed to allowing lies in my client's case and Worthy didn't have the moral turpitude to fire Plants for actually committing a crime in a court of law. She allowed her to retire."

With defense efforts to get the case thrown out because of prosecutorial and judicial misconduct thwarted, Aceval and Pena took plea deals instead of going back to trial in 2006.

The Judge Walks

After a series of appeals and pretrial challenges, on April 11, the Michigan Appellate Court dismissed the last pending felony charge against the now retired Judge Waterstone. Last year, Wayne County presiding Judge Timothy Kenny dismissed three other counts against Waterstone, who retired after the Aceval-Pena scandal.

As Kenny put it in his decision, "the meetings between Waterstone and Plants were not a neglect of duty as alleged in the indictment, but instead their actions were deliberate acts taken out of concern for informant Povish's safety."

Michigan Attorney General John Selleck hinted he might appeal the final dismissal of charges against Waterstone. "We are reviewing the opinion and will make a decision on which action to take at a later time,"

Waterstone was elated. "I'm going to get a good night's sleep for the first time in three years," she told the Detroit Free Press.

Former DA Plants wasn't so lucky. She pleaded guilty to official misconduct and was ordered to serve six months in jail. Earlier this year Plants' law license was permanently revoked.

Officer Robert McArthur pleaded guilty to a misdemeanor charge of filing a false report and he, too, was ordered to serve 90 days in jail. Sergeant Rechtizgel pleaded guilty to a similar charge but no jail time was ordered.

A judge forced to retire in disgrace and who barely escaped felony charges. An ambitious prosecutor forced to retire in disgrace, disbarred, and jailed. Two police officers forced out of their jobs and convicted of criminal charges. If those police officers and judicial officials had simply honored their oaths to uphold the law, such fates would not have befallen them.

But that would have made it more difficult to win their case. And that desire to win at all costs trumped upholding the Constitution.

Detroit, MI
United States

Marijuana Legalization Hits 56% Support in Rasmussen Poll

A Rasmussen poll of likely voters released Tuesday found support for legalizing and regulating marijuana at 56% nationwide, a significant increase over a March Rasmussen poll and in line with other recent polls that show legalizing gaining majority support and trending upward.

The poll comes ahead of elections in November that will see votes in at least two states, Colorado and Washington, vote on marijuana legalization initiatives. Efforts are still underway to get on the ballot in four other states -- Michigan, Montana, Nebraska, and Oregon. The poll did not break down support by state.

Legalization garnered majority support among both sexes and across age groups, although with some significant differences. While 61% of men supported "legalizing marijuana and treating it like alcohol or cigarettes," only 52% of women did, reflecting a gender gap apparent in other polls. And while even seniors came in with 50% support, only 49% of respondents with minor children supported legalization.

Support in that demographic jumped, however, when pollsters asked if they would favor legalization "if no one under 18 could buy it, it was banned in public, and there were strict penalties for driving under the influence." Under those conditions, support among parents jumped to 58% and support among Republicans increased to 52%, bumping up overall support for legalization one point to 57%.

The poll also asked whether it should not be a crime "for someone to smoke marijuana" in private. Only 32% agreed that private pot-smoking should remain a crime, while 68% disagreed.

The same poll asked whether US drug consumption is a major cause of drug violence in Mexico and Central America, with 62% agreeing that it is. More surprisingly, 47% said they agreed with legalizing marijuana and cocaine if it would reduce the violence along the Mexican border. But in another question in the poll, only 11% agreed with legalizing and regulating cocaine.

The poll sampled 1,000 likely voters. It has a margin of error of +/- 3%.

DEA Facing Fallout from Deadly Honduras Raid

In the Honduran village where four residents were killed last week by gunfire from a helicopter on a US-backed anti-drug operation complete with DEA agents on board the chopper, feelings continue to run high. On Monday, they told the Associated Press that DEA agents also accompanied Honduran commandos who stormed into homes and mistreated residents after the raid, but the agency denies that.

In the predawn hours of May 11, Honduran National Police and DEA agents were searching for a boat supposedly carrying a load of cocaine when they said they came under fire from the river. The Hondurans opened fire, but the boat they attacked was a small fishing vessel, not a smuggling craft, and the attack left two pregnant women and two others dead and four other people wounded.

The helicopter is owned by the US State Department and was one of four being used in the operation, which had already resulted in the seizure of cocaine from the banks of the river. Police on the ground and the door-gunner for one helicopter opened up on the boat.

The DEA said its agents did not open fire and did not participate in heavy-handed raids in the immediate aftermath. But villagers in the town of Ahuas said masked agents then landed in their community and broke down doors, looking for a trafficker they called "El Renco." The witnesses referred to some of the agents as "gringos" and said they were speaking English.

After the commandos left, angry villagers formed a machete-wielding mob and burned government installations and four homes belonging to families associated with El Renco. Police Chief Filiberto Pravia Rodriguez said he tried to stop the mob, but had to run for his life.

The incident comes as the US is ramping up its support of Honduran anti-drug efforts. The Obama administration is increasing the amount of anti-drug assistance and is working with the Honduran military to create forward operating bases to fight the cocaine traffic from Colombia en route to North America.

Human Rights watch has called for an investigation into the killings.

"It is critical that both Honduran and US authorities ensure that the killings are thoroughly investigated to determine whether the use of lethal force was justified," said Jose Miguel Vivanco, Americas director for the group. "If evidence demonstrates that security forces violated international standards, they must be held accountable."

At least one congressman, Rep. Howard Berman (D-CA) is calling for a review of US military assistance to Honduras, where the Honduran military took part in a coup in 2009 and where continuing human rights violations are alleged to be taking place.

"I have consistently expressed deep concerns regarding the danger of pouring US security assistance into a situation where Honduran security forces are involved in serious human rights violations," he told National Public Radio last week. "The problems are getting worse, not better, making such a review all the more urgent."

Local leaders aren't waiting for investigations or reviews. They want the DEA out now.

"For centuries we have been a peaceful people who live in harmony with nature, but today we declared these Americans to be persona non grata in our territory," the leaders of five indigenous groups said in a press statement last week picked up by the AP.

Ahuas
Honduras

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