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False Testimony: How Prosecutors Leave Justice Behind [FEATURE]

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.

Brian Wilbourn's conviction was overturned because of prosecutorial misconduct.
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.

Chicago defense attorney Leonard Goodman
"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.]

Chicago , IL
United States

Most of North Carolina Grand Jury's Cases Are Drugs

A Pitt County (Greenville), North Carolina, grand jury offered up a batch of indictments on April 9 that suggest that the war on drugs is generating most of the criminal justice system activity in the county. This snapshot offers a revealing glance at just what law enforcement and prosecutors are spending their resources on, at least with this grand jury.

City Hall, Greenville (wikimedia.org)
Grand juries are empanelled by local prosecutors to bring charges when prosecutors believe they have evidence a person can be charged with a crime. Grand jury indictments are a strong indicator of law enforcement and prosecutorial priorities.

Overall, the April grand jury indicted 37 people felony charges. Only two were for violent offenses, both of which were assaults with a deadly weapon. Another two people were indicted for child sex offenses.

One person was indicted for possession of a stolen firearm and carrying a concealed weapon, one for obstruction of justice, one for breaking and entering, and four more for various theft offenses (obtaining property under false pretenses, larceny by an employee, larceny of a merchant, financial card theft).

Overall, 15 people were indicted on non-drug offenses. But 22 were indicted in cases where drugs were the leading charge, and eight of them were indicted for possession of marijuana with the intent to sell and deliver. That's 22% of all the indictments, or nearly one-quarter of the grand jury's business.

Another four people were charged with possession of cocaine with intent to sell and deliver, three people were charged with trafficking heroin/opium, three with trafficking a Schedule II controlled substance (pain pills), two with conspiracy to traffic cocaine, one with possession of cocaine, and one with attempting to obtain a controlled substance by fraud.

Drug possession or sales cases thus accounted for a whopping 60% of all indictments by the April 9 grand jury. If drug possession and sales were not criminal offenses, police and prosecutors could use those resources elsewhere, or elected officials could decide that police and prosecutors don't need as many resources and reallocate those taxpayer dollars to more fruitful ventures. Or they could lower taxes.

Greenville, NC
United States

Obama DOJ Ratchets Up War Against Medical Marijuana [FEATURE]

Signaling an intensification of federal government targeting of medical marijuana providers, the four US Attorneys in California last Friday announced a campaign of "coordinated enforcement actions targeting the illegal operations of the commercial marijuana industry in California." The announcement came at a Sacramento news conference.

The federal prosecutors said their enforcement actions would rely on pursuing civil forfeiture lawsuits against properties where dispensaries are located, sending threatening letters to dispensary landlords, and criminal prosecutions. The prosecutors said recent dispensary busts in Fresno, Los Angeles, Sacramento and San Diego were part of the enforcement campaign.

The feds said that enforcement actions would vary across regions of the state and that they would be working with federal law enforcement and local officials to crack down. The Department of Justice in Washington made clear that this was not an instance of prosecutors going off the reservation.

"The actions taken today in California by our US Attorneys and their law enforcement partners are consistent with the Department's commitment to enforcing existing federal laws, including the Controlled Substances Act (CSA), in all states," said Deputy Attorney General James Cole. "The department has maintained that we will not focus our investigative and prosecutorial resources on individual patients with serious illnesses like cancer or their immediate caregivers. However, US Attorneys continue to have the authority to prosecute significant violations of the CSA, and related federal laws."

Medical marijuana supporters were quick to charge the Obama administration with waging a renewed war on them and reneging on its promises to not interfere in states where medical marijuana is legal.

"Aggressive tactics like these are a completely inappropriate use of prosecutorial discretion by the Obama administration," said Joe Elford, chief counsel with Americans for Safe Access (ASA), the country's largest medical marijuana advocacy group. "President Obama must answer for his contradictory policy on medical marijuana." On the campaign trail and in the White House, President Obama pledged that he was "not going to be using Justice Department resources to try to circumvent state [medical marijuana] laws."

"It is unconscionable that the federal government would override local and state laws to enforce its will over the will of the people," said ASA spokesperson Kris Hermes. "States must be allowed to enforce their own laws without harmful interference from the Obama administration."

"The Obama administration's latest moves strongly suggest that their medical marijuana policies are now being driven by overzealous prosecutors and the anti-marijuana ideologues who dominated policymaking in past administrations," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "Barack Obama is betraying promises made when he ran for president and turning his back on the sensible policies announced during his first year in office. Instead of encouraging state and local authorities to regulate medical marijuana distribution in the interests of public safety and health, his administration seems determined to recriminalize as much as possible. It all adds up to bad policy, bad politics and bad faith."

Large medical marijuana dispensary operations are not health care providers but criminal organizations hiding behind patients, the prosecutors claimed Friday.

"Large commercial operations cloak their moneymaking activities in the guise of helping sick people when in fact they are helping themselves," said Benjamin Wagner, US Attorney for the Eastern District of California. "Our interest is in enforcing federal criminal law, not prosecuting seriously sick people and those who are caring for them. We are making these announcements together today so that the message is absolutely clear that commercial marijuana operations are illegal under federal law, and that we will enforce federal law."

"The California marijuana industry is not about providing medicine to the sick," claimed Laura Duffy, US Attorney for the Southern District of California. "It's a pervasive for-profit industry that violates federal law. In addition to damaging our environment, this industry is creating significant negative consequences, in California and throughout the nation. As the number one marijuana producing state in the country, California is exporting not just marijuana but all the serious repercussions that come with it, including significant public safety issues and perhaps irreparable harm to our youth."

The prosecutors said they had sent out "dozens" of threat letters to dispensary and grow-op landlords in the past few days. In the Southern and Eastern districts, they targeted building owners, while in the Central district they sent letters to landlords "in selected cities where officials have requested federal assistance." In the Northern district, they targeted their threat letters to landlords of dispensaries within 1,000 feet of schools or parks, but warned "we will almost certainly be taking action against others."

The prosecutors also said they had already filed seven civil forfeiture complaints against properties where landlords allow dispensaries to operate. One complaint alleged that an Orange County strip mall had eight dispensaries and that recalcitrant city officials had spent hundreds of thousands of dollars trying to shut them down.

One letter targeted the landlord for the Marin Alliance for Medical Marijuana (MAMM) in Fairfax, which has been operating with the support of the city and without complaint since 1996. In a letter to MAMM's landlord, the US Attorney for Northern California warned that the dispensary was operating within a "prohibited distance of a park." The letter threatened MAMM's landlord with up to 40 years in federal prison, seizure of his property, and forfeiture of all rental proceeds for the last 15 years if he doesn't evict MAMM.

Similar letters have gone out to other dispensary landlords warning them of pending federal action because their tenants are too close to schools. The dispensaries are operating in accord with California law, which treats them like liquor stores and bars them from operating within 600 feet of a school, but federal law imposes additional penalties for the distribution of controlled substances with 1,000 feet of schools, playgrounds, and public parks.

"This is nuts," said Greg Anton, attorney for the Marin Alliance and its director, Lynnette Shaw. "There's a dispensary near where I live that sells guns, narcotics, alcohol and tobacco and it's full of children.  It's called Walmart, and it's safe. So is Lynnette's place. She's proven that over 15 years."

"This is an outrageous abuse of law enforcement resources for the DOJ to use property forfeiture to enforce meddlesome, nanny-state regulations," said California NORML director Dale Gieringer. "The federal government has no business dictating local zoning decisions. No one has any problems with the Marin Alliance except the bureaucrats in Washington."

The DEA is also along for the ride. "The DEA and our partners are committed to attacking large-scale drug trafficking organizations, including those that attempt to use state or local law to shield their illicit activities from federal law enforcement and prosecution," said DEA Administrator Michele Leonhart. "Congress has determined that marijuana is a dangerous drug and that its distribution and sale is a serious crime. It also provides a significant source of revenue for violent gangs and drug organizations. The DEA will not look the other way while these criminal organizations conduct their illicit schemes under the false pretense of legitimate business."

And so is the IRS. "IRS Criminal Investigation is proud to work with our law enforcement partners and lend its financial expertise to this effort," said IRS chief of criminal enforcement Victor Song. "We will continue to use the federal asset forfeiture laws to take the profits from criminal enterprises."

Friday's announcement of a federal crackdown is just the latest in a series of moves against medical marijuana providers by the Obama administration. The Department of the Treasury has been busily scaring banks into shutting down the accounts of providers in California and Colorado, the Department of Justice is aggressively prosecuting dispensary operators in Montana and elsewhere, and the IRS is attempting to drive dispensaries out of business by denying them standard business expense deductions -- Oakland's Harborside Health center was just this week hit with a $2.5 million tax bill after the IRS disallowed its standard business deductions.

Meanwhile, the administration has continued to block federal approval of medical marijuana, with the DEA recently rejecting a nine-year-old petition to reschedule pot, saying it would only accept large-scale, controlled FDA trials. But at the same time, the DEA has acted to block such trials by refusing to allow a private production facility to supply marijuana for medical research. The only existing source for marijuana for research purposes is the National Institutes on Drug Abuse, but it recently blocked a request for marijuana to study its effects on Post-Traumatic Stress Disorder, saying it has no intention of allowing studies that would develop marijuana for medicinal purposes.

"How can the Obama administration say that it's fine for sick people to use this proven medicine, and yet tell them they can't have any legal place to get it?" asked Rob Kampia, executive director of the Marijuana Policy Project. "Medical marijuana isn't going away. Over 70% of Americans support making medical marijuana legal, and 16 states allow it."

But not the federal government. Not under George Bush and, it is increasingly clear, not under Barack Obama. With Obama facing no challengers in the Democratic primary and with reform-friendly Republicans unlikely to win the Republican nomination, it appears that medical marijuana is going to be condemned to wander through the political wilderness for the foreseeable future.

The question now becomes whether any sort of response can stem the federal onslaught, and just what that response might be. Or does the dispensary scene just wither away and die?

Chronicle Book Review: Drugs and Drug Policy

Drugs and Drug Policy: What Everyone Needs to Know, by Mark Kleiman, Jonathan Caulkins, and Angela Hawken (2011, Oxford University Press, 234 pp., $16.95 PB)

http://stopthedrugwar.org/files/drugs_and_drug_policy.jpg
Mark Kleiman isn't real popular among the drug reform set. The UCLA professor of public policy is no legalizer, and even though he's too much of an evidence-minded academic to be a wild-eyed drug warrior, he still seems to have an unbecoming fondness for the coercive power of the state. Kleiman, who gets top-billing over coauthors Jonathan Caulkins of Carnegie Mellon and Angela Hawken at Pepperdine, also ruffles reformers' feathers with unnecessary snideness and snark.

But I watched Kleiman address Students for Sensible Drug Policy conventions a couple of times, and I thought it was a good thing, a very useful jolt to the group-think that can grip any gathering of congregants committed to a cause. I thought having the students have to hear the arguments of a leading academic thinker on drug policy who, while not "the enemy," was not especially saying what the average SSDPer wanted to hear, was salubrious for their critical thinking skills. I still think so.

In Drugs and Drug Policy, Kleiman and his coauthors continue with the occasional jibes aimed at the drug reform movement, at times reach conclusions at odds with my own, but also serve up a surprisingly chewy work of drug policy wonkery in delicious bite-size chunks. The innovative format, something like a series of FAQs organized within broader chapters -- "Why Have Drug Laws?" "How Does Drug Law Enforcement Work?" "What Treats Drug Abuse?" "Can Problem Drugs Be Dealt With at the Source?" -- allows us to unpack that all-encompassing monster called "drug policy" one subset at a time, and for that achievement alone, is worthy of praise. That it manages to cover so much ground in a paltry 234 pages is all the more laudable.

Overall, Drugs and Drug Policy is smart, reasonable, and thoughtful. It wants policies based on evidence and it advocates for some intelligent alternatives to current policies. It recognizes the utility of needle exchanges, safe injection sites, and opiate maintenance, even as it complains that "harm reduction" has been hijacked by legalizers. It explains that most people who use drugs -- even those diagnosable as suffering from substance abuse disorders -- will quit using drugs themselves without recourse to treatment. And it even allows that drug use can have beneficial effects, even if it doesn't do so until the seventh chapter.

But Kleiman et. al dismiss decriminalization as unlikely to have a big impact on the social fiscal burden of drug law enforcement because, even though it doesn't appear to have much impact on consumption, drug consumers are not, for the most part, filling our prisons -- drug dealers are. While they do concede that not criminalizing otherwise law-abiding citizens could have "significant benefits," they seem to underplay the negative, life-long impact of a criminal drug record on one's life prospects.

In fact, they seem all too comfortable with maintaining the pernicious role of the criminal justice system in drug policy even as they recognize that enforcing the drug laws is "unavoidably an ugly process," with its reliance on snitches, surveillance, and other "intrusive methods" of enforcement. To give them credit, they want smarter drug law enforcement -- concentrating police repression on violent drug dealers while turning a blind eye to discreet dealing, triaging coerced drug treatment spots so they are reserved for the people who could most benefit from them, giving up on interdiction and source country eradication as ineffective -- that might actually reduce the social and fiscal costs of both drug abuse and enforcement, and since drug prohibition isn't going away anytime soon, at least wasting less money on drug war tactics that don't work well should be on the table.

And they reject drug legalization as too scary to experiment with, but seem to imagine it as possible only within a corporate-controlled, heavily-advertised, low-priced scenario similar to that which has accreted around the alcohol industry. Yes, it's probably true that selling cocaine like Coors, would lead (at least initially) to a significant increase in use and problem use, but why does that have to be the only model? A government monopoly similar to the state liquor store model, with reasonable taxes and no corporate pressure to advertise could conceivably allow legalization without the increases in consumption that the authors predict, even though they concede they don't know how large they might be.

Still, when you get to what it is Kleiman et al. would do if they had their druthers, all but the most purist of legalization advocates will find a lot to like. They create three separate lists of recommendations -- a "consensus list" of reforms they think are politically doable now or in the near future, a "pragmatic list" of reforms that would appeal to dispassionate observers but could raise the hackles of moralists, and a "political bridge too far list" of reforms too radical for mainstream politicians to embrace.

The "consensus list" includes expanding opiate maintenance therapy, encouraging evidence-based treatment, early intervention by the health care system, encouraging people to quit on their own (as opposed to being "powerless"), relying less on interdiction, ending the charade that alternative development is drug control, and concentrating drug enforcement on reducing violence and disorder, as well as smarter, more effective coerced treatment in the legal system. If we saw the drug czar's office produce a National Drug Control Strategy with these recommendations, we would consider that a great victory. It ain't legalization, but its headed in a more intelligent, more humane direction.

The "pragmatic list" includes recommendations to lower the number of drug dealers behind bars, not reject harm reduction even if it's been "hijacked," stop punishing former dealers and addicts, reduce barriers to medical research on illegal substances, and be open-minded about less harmful forms of tobacco use.

The authors don't neglect alcohol and tobacco -- the two most widely-used drugs -- and that is really evident in their "political bridge too far" recommendations. The first three items there are aimed squarely at reducing alcohol consumption and its ill effects. They also argue for the legalization of individual or collective marijuana cultivation, a sort of legalization without the market, increased study of the non-medical benefits of drugs, and increasing cigarette taxes in low tax states.

I think Drugs and Drug Policy needs to be read by anyone seriously interested in drug policy reform. It hits almost all the bases, and it's well-informed, provocative, and challenging of dogmatic positions. You don't like the authors' conclusions? Refute them. It'll be good for you.

Feds vs. Deadheads in Missouri "Schwagstock" Forfeiture Battle [FEATURE]

Since 2004, when veteran musician Jimmy Tebeau brought the 350-acre rural property in central Missouri and turned it a camping and concert venue, Camp Zoe has been Deadhead central in the Show Me State. A member of the Grateful Dead tribute band The Schwag, Tebeau has hosted numerous Schwagstock and Spookstock festivals, as well as other concerts and events, drawing nationally known acts and thousands of fans for weekends of outdoor fun in the sun.

Jimmy Tebeau (image via campzoe.com)
But the DEA and the Missouri Highway Patrol harshed Camp Zoe's mellow vibe last November, when they rolled into the venue early in the morning and searched the site. A week later, they announced that they were initiating federal civil asset forfeiture proceedings against the property because of alleged rampant drug use and Tebeau's failure to put a halt to it.

According to a complaint filed November 8 in the Eastern Missouri US District Court, the feds alleged that "over the past several years law enforcement agents have specifically observed the open sales of cocaine, marijuana, LSD (acid), ecstasy, psilocybin mushrooms, opium and marijuana-laced food products by individuals attending the music festival and made multiple undercover purchases of illegal drugs."

Tebeau and other Camp Zoe staff members "were in the immediate area" when drug deals were going down and "took no immediate action to prevent the activity," the complaint continued. It added that "undercover purchases have been made as recently as September 2010," when Schwagstock 45 was held, but noted that the investigation stretched back to 2006 and included evidence from "surveillance, undercover operations, source information, bank records, and interviews."

Most critically, the complaint alleges that Camp Zoe was "knowingly opened, rented, leased, used, or maintained for the purpose of manufacturing, distributing or using controlled substances." In other words, the feds are arguing that the purpose of Camp Zoe was not to be a concert venue, but a drug den, and it could thus be lawfully seized, along with nearly $200,000 in cash they seized from the site and various bank accounts.

good clean fun at Camp Zoe (image from campzoe.com)
The case pitting a local counterculture icon and his property against the power of the federal government has stirred considerable interest in Missouri, as well as among members of the peripatetic Deadhead set. (In fact, I had a conversation about the case with a dreadlocked young woman at a Northern California music festival last weekend.) It has also excited the attention of asset forfeiture reformers and critics of overweening governmental power.

But wait, it's even worse. The feds upped the ante further just a couple of weeks ago. After stalling the asset forfeiture proceedings for seven months -- leaving Camp Zoe silent and vacant and Tebeau without his primary source of income -- and seeing that Tebeau was not about to roll over for them, federal prosecutors last week sought and got a criminal indictment charging that Tebeau "knowingly and intentionally profited from and made available for use, with or without compensation, said place for the purpose of unlawfully storing, distributing, or using controlled substances."

"This is the sort of things Soviet thugs did and that continues to happen in Russia under Vladimir Putin," said Eapen Thampy, executive director of the Kansas City-based Americans for Forfeiture Reform. "They take a businessman, take his money, and take him to jail. I see this as an attempt by rich and powerful law enforcement agencies to acquire property or money they can turn into salaries or equipment."

fun and camping at Camp Zoe (image from campzoe.com)
"The Camp Zoe situation is really interesting," said Dave Roland, a St. Louis-based attorney who is director of litigation for the libertarian-leaning Missouri Freedom Center. "The federal government has recently come back and said they will charge him with maintaining the property for the purpose of facilitating drug transactions, but that seems like an after the fact justification for their attempt to seize the property. The more likely explanation is that the government was embarrassed by the fact people kept saying how can you take this property without alleging he's doing something illegal in the first place," he ventured.

"There was no one engaging in violence at Camp Zoe, there were no allegations of harm or injury," Roland continued. "That the government is concentrating on these sorts of victimless crimes demonstrates misplaced priorities. Especially in light of the financial crunch, we ought to be reallocating resources to deal with real threats to the health and safety of the community and not these drug witch hunts."

But there's the rub. Missouri law enforcement agencies profit handsomely from asset forfeiture, especially when they do an end run around state asset forfeiture law and partner with the feds. Under a 2004 asset forfeiture reform law, funds seized by state and local law enforcement agencies are supposed to go to the state education fund, but that's not what happened.

The state auditor's reports on asset forfeiture activity show a quick learning curve by state and local law enforcement. While, after the 1994 reforms, schools got 27% of seized funds in 1996 and 1997, in 1998, that figure fell by half to 14%. There was no audit done in 1999, but in 2000 and every year since, schools have gotten 2%, with that figure dropping to 1% in 2008 and 2009. Meanwhile the Justice Department and state and local cops have raked in millions of dollars, gobbling up the vast majority of funds that were supposed to go to Missouri's schools.

"Asset forfeiture abuse is rampant all over the country," said Roland. "Here in Missouri, the state made an effort to improve its statutes a decade ago, but the problem is that law enforcement agencies find alternative ways to accomplish the same end. Now, you see state and local law enforcement handing cases over to federal agencies because they get a kickback from the asset forfeitures. There is an actual financial incentive to assist federal agencies in the unconstitutional use of asset forfeiture laws."

"Missouri has laws that say how asset forfeiture should be conducted and where the money should go, but they aren't being followed," said Thampy. "When you put this into that context, these abuses are way more serious," he said, adding that he believed 90% of Missouri counties were not in compliance with the law.

Neither Roland nor Thampy were impressed with the criminal charges now being brought against Tebeau. Nor were they aware of other cases of "maintaining a drug premise" being brought against other concert venues. That law is widely known as the "crack house" law.

"The government has a pretty steep hill to climb to prove that Tebeau was operating this camp so that people could buy illegal drugs," said Roland. "I'm very skeptical that the government is going to be able to carry its burden of proof."

"That charge is complete bullshit," Thampy responded bluntly. "If they wanted to charge him with drug trafficking or drug possession, those would be appropriate charges if they could prove them. But charging him with running a drug premise says that he got this land for the sole purpose of conducting drug transactions. It would be putting it mildly to say this is an abuse of prosecutorial power."

"To the best of my understanding, this is not a commonly used statute," said Roland. "I don't recall ever seeing it used in the context of a concert venue owner. They're alleging that the property is being used for the purpose of facilitating drug transactions simply because Tebeau didn't take some unspecified affirmative action."

Now facing criminal charges as well as the seizure of Camp Zoe, Tebeau is still refusing to roll over and cut a deal. With his income-producing property shut down and his bank accounts seized, Tebeau is at a real disadvantage, but thanks to his fans and followers and continuing gigs as a musician, he has so far been able to raise the funds to defend himself.

"A just outcome would be dropping the charges and dropping the attempted asset forfeiture," said Roland. "If we're not going to legalize drugs, the government needs to at least focus on the people and activities they're really worried about. Jimmy hasn't been charged with actually being involved, and it's unjust to target him for a criminal action because someone else was doing something illegal. That's manifestly unjust."

MO
United States

Poland Approves Drug Decriminalization -- Sort Of [FEATURE]

With President Bronislaw Komorwski signing into law late last month an amendment to the country's harsh, decade-old drug laws, Poland has taken a step in the direction of the decriminalization of drug possession. But how much of a difference the new law will make is unclear at this point, and it won't go into effect for another six months. The new law also increases sentences for some drug distribution offenses.

21st Century Warsaw. Now, if Poland can just move its drug laws into the 21st Century. (Image via Wikimedia.org)
Under the old law, possession of even the smallest quantity of illegal drugs could lead to a three-year prison sentence. Under the amended drug law, people would still be arrested, but prosecutors will have the option of not charging people for personal drug possession if the quantity involved is small, if it is a first offense, or if the person is drug dependent.

It is one thing to have the law on the books, but whether prosecutors will take advantage of it remains to be seen. The experience in other European countries that have enacted similar laws suggests that they will have to be prodded.

Also unclear at this point is just what will constitute a "small" amount of drugs for personal use. That is an issue that is now being contested. In a sign of how volatile the issue is, demonstrators demanding a 30 gram figure for marijuana, the ability to grow at home, and amnesty for pot prisoners, clashed last weekend with police in Warsaw just days after the president signed the new law. Nearly 30 people were arrested on drug charges, and police were attacked with eggs and empty beer bottles.

The protest was called by the Free Hemp Initiative, and police estimated some 6,000 people attended. Demonstrators shouted slogans and waved banners with exhortations such as "Plant It, Smoke It, Legalize It!" on them. Organizers managed to cool down the crowd after the violence broke out by reminding people of their nonviolent stance.

Activists are planning to both push prosecutors to use the new law and to try to open up discussion around the personal use threshold in a bit to push further in the direction of real decriminalization.

Polish and international experts cautioned about making too much of the reform. "While this is only a small change, it is nevertheless a step in the right direction," said the International Drug Policy Consortium.

The reform "seems quite modest and even marginal," Dr Mateusz Klinowski, Chair of Legal Theory at the Jagiellonian University's Department of Law and Administration, told the Krakow Post. "Though the amendment doesn't seem to be a major breakthrough, at least it creates hope of future reforms," he added. "The first step has been taken and now it is public opinion and non-governmental organizations which have to advocate rational solutions and efficient law that will be aimed primarily at prevention and treatment, rather than at penalizing possession."

In  commenting on the new law, Justice Minister Krysztof Kwiatkowski demonstrated that the old mentality or at least the old politics is still strong in the halls of power. While he confirmed that prosecutors must now investigate each drug possession case to see if it qualifies for dismissal, his rhetoric was that of prohibition.

"We have increased the criminal responsibility for those who sell death, in order to provide for more effective prosecution," he said. "Police should concentrate on the pursuit of drug dealers and not drug addicts. We should focus on providing treatment for such people."

Even this limited progress on reforming Poland's drug laws came only after years of delay. A team of experts appointed by the former justice minister had drawn up the amendments more than two years ago.

Polish politicians were also the object of a concerted civil society campaign to liberalize the drug laws. Celebrity chef Robert Maklowicz created a Facebook video, Cook Our Children a Better Future, arguing for reform, while at the same time, 71 Polish artists sent an open letter to the Sejm seeking a review of Polish drug policy.

Former Polish president Aleksander Kwaśniewski, sociologist Zygmunt Bauman, and renowned international human rights expert Wiktor Osiatyński also joined the fray, signing a January open letter coordinated by Krytyka Polityczna, an influential group of liberal thinkers. Over 100 organizations from Poland and worldwide recently signed a petition coordinated by the Polish Drug Policy Network. A video by the Hungarian Civil Liberties Union was viewed by nearly 50,000 people.

While for many advocates the reforms don't go far enough, they are at least a step in the right direction. Now it will be up to activists and civil society to continue prodding politicians to keep moving toward more civilized drug policies.

Warsaw
Poland

Medical Marijuana Providers Dr. Mollie Fry and Dale Schafer Prepare for Prison [FEATURE]

Special to the Chronicle by Sharon Letts

After more than six years of litigation, and three years of appeals for manufacturing and conspiracy to manufacture and distribute cannabis, Dr. Marion "Mollie" Fry and her husband of 25 years, civil attorney Dale Schafer, attended a hearing at the US courthouse in Sacramento Monday week, in which their bonds were revoked and they were given a the date of May 2 to surrender to serve five-year federal prison terms.

Dr. Marion Fry with longtime partner, attorney, Dale Schafer at their home near Sacramento. (Photo by Sharon Letts)
Fry and Schafer's prior home located in the hills just north of Sacramento was raided in 2001, with 34 plants confiscated - what they believed to be well below the 99 plant limit set forth by local ordinances.

According to Schafer, the couple had never grown more than 44 plants in a given year.  A little known fact, he explained, is that under federal law more than 100 plants grown in a five year period, accumulatively, is cause for the mandatory five-year sentence, overriding state laws.

Dr. Fry, who had gone through a radical mastectomy just three years prior, had made the decision to grow her own medicine, medicating through her illness, surgery and continued to medicate from myriad complications from chemotherapy until the arrest. Schafer suffers from hemophilia and failed back syndrome, is under constant care, and had also medicated with cannabis legally.

According to Fry and Schafer, prior to the arrest they had conferred numerous times with local officials, state Attorney General Bill Lockyer, and El Dorado County Sheriff's Detectives Timothy McNulty and Robert Ashworth, regarding the legality of their cannabis production for their own use and for Fry’s patients.

"We weren't selling the medical cannabis to my patients," Fry said. "We had staff and were charging $10 for delivery only, and that's a common practice today."

Ultimately it was staff, Schafer said, who broke rules, and ultimately they were responsible for all actions.

"We fired anyone who wasn't following the code of the law," Schafer said. "One week before we were raided, two undercover federal agents attended a workshop for 215 cardholders we were holding at the local Grange Hall. The chef teaching the class allowed patients to go home with some of the edibles made, including the agents."

Fry said comments were made during the class that may have been misunderstood by the agents, saying it was a comedy of errors with a not so amusing ending.

"The judge wouldn’t allow any medical evidence. They wouldn't let us tell the jury I was sick, or that I was a doctor," Fry said. "They wouldn’t allow that I was helping sick patients. Ironically, two years before the raid, local authorities asked me to tell them who of my patients were 'really' sick, and who wasn't." I told them it wasn't my job to police my patients, and that everyone who came to me had legitimate health issues. They have treated us like criminals."

Dr. Marion Fry believes that cannabis is good medicine, and that God will save her. (Photo by Sharon Letts)
Fry's lineage includes seven generations of doctors. Family notables include her grandfather, Dr. Francis Marion Pottenger, celebrated for being at the forefront of curing tuberculosis in the early 1900s, and founding the field of internal medicine in the process.

Her grandmother studied under Carl Jung in the 1950s, founding a Jungian institute in Houston in the 1960s, while her mother also became a physician in the 1950s.

"When I was young my mother told me I could do whatever I choose to do with my life. She told me the United States of America is a free country," Fry explained. "But, I was outspoken on this topic."

Lack of education on the topic of medicinal cannabis, Fry and Schafer agree, is the true culprit in their court case, and the couple chose activism to further the cause, something that may have contributed to their demise.

"When I was in the thick of helping people, I knew it was the right thing to do," she said. "Cannabis helped me immensely when I was going through cancer."

After ten years of defending themselves the couple has more questions than answers.

"Cannabis is proven medicine. Why would the state of California create laws based on what the people want, and then allow the federal Government to override them?" Fry asks. "I had cancer, we were growing medicine. I was helping people."

Dr. Fry's license to practice has been revoked for some time now, as has her husband's license to practice law. The couple's grown children with grandkids have moved back home to help with financs and save the family home. A Pay Pal account has been set up for donations. It can be accessed here. "Cool Madness," a book written about the trial by author Vanessa Williams is available online through StoptheDrugWar.org (publisher of this web site), Amazon.com or other online booksellers, or directly at the "Cool Madness" web site.  Donations and correspondence of support can also be sent to the family, P.O. Box 634, Cool, CA 95614.

Sacramento, CA
United States

Montana Marijuana Prosecution Runs into Jury Pool "Mutiny"

No way would they convict someone of possessing a 16th of an ounce of marijuana, member after member of a Missoula County jury pool told a stunned judge and prosecutor last week. As a result, the Missoulian newspaper reported, the judge in the case ordered a recess, and a plea bargain was reached in a drug trafficking case against Touray Cornell.

not business as usual at the courthouse in Missoula (image courtesy Wikimedia)
Potential jurors repeatedly told the court they would not convict for a couple of buds found during a raid on Cornell's home in April. One juror wondered out loud why the county was wasting time and money prosecuting the case at all, especially in a locale that approved a 2004 initiative making marijuana possession offenses the lowest law enforcement priority.

After that juror questioned the prosecution, District Judge Dusty Deschamps polled the jury pool and found at least five others who agreed. That was in addition to two others who had already been excused because of their philosophical objections to pot prosecutions.

"I thought, 'Geez, I don't know if we can seat a jury,'" Deschamps said, explaining why he called a recess.

Instead, Deputy District Attorney Andrew Paul and defense attorney Martin Ellison worked out a plea agreement on the more serious drug trafficking charge. Cornell entered an Alford plea, in which he did not admit guilt. He was then sentenced to 20 years in prison with 19 suspended. Since Cornell has already served 200 days awaiting trial, he should be out in a matter of months.

"Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges on Dec. 16, 2010, is not supportive of the state's marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances," according to the plea memorandum filed by his attorney.

It was "a mutiny" by the jury pool, said Paul.

"I think it's going to become increasingly difficult to seat a jury in marijuana cases, at least the ones involving a small amount," Deschamps said.

Noting changing attitudes toward marijuana, as evidenced by the Missoula initiative and voters' approval of the state's medical marijuana law, Deschamps wondered if it were fair to insist on impaneling a jury that consisted only of "hardliners" who object to all drug use. "I think that poses a real challenge in proceeding," he said. "Are we really seating a jury of their peers if we just leave people on who are militant on the subject?"

"I think that's outstanding," John Masterson, who heads Montana NORML, said when told of the incident. "The American populace over the last 10 years or so has begun to believe in a majority that assigning criminal penalties for the personal possession of marijuana is an unjust and a stupid use of government resources."

Deputy DA Paul said that normally a case involving such a small amount of pot wouldn’t have gone that far through the court system, but for the felony charge involved. But the response of the jury pool "is going to be something we're going to have to consider" in future cases, he said.

Missoula, MT
United States

Traffickers Use Terminally Ill Foreigners to Smuggle Drugs

Location: 
India
Drug traffickers are moving drugs into India via terminally ill patients -- mostly women from foreign countries. Most of them go scot free on humanitarian grounds.
Publication/Source: 
Hindustan Times (India)
URL: 
http://www.hindustantimes.com/Terminally-ill-foreigners-smuggle-drug-HC-fumes/Article1-624182.aspx

This Week's Corrupt Cops Stories

Crookedness in the Wayne County, Michigan, court system; endemic corruption in Camden; a tweaker cop in Iowa; and another pair of jail guards go bad. Let's get to it:

evidence room
In Detroit, a retired Wayne County judge, a retired Wayne County drug prosecutor, and two former Inkster police officers were ordered last week to stand trial on felony charges related to a perjury-tainted 2005 cocaine trial. Retired Judge Mary Waterstone, former Wayne County drug prosecutor Karen Plants, and former Inkster police officers Robert McArthur and Scott Rechtzigel are accused of conspiring to hide the role of a secret paid informant in a 47-kilo cocaine bust. Waterstone faces four felony counts of official misconduct, Plants is charged with conspiracy, McArthur is charged with conspiracy, perjury, and misconduct in office, and Rechtzigel is charged with perjury and conspiracy. Waterstone is accused of privately agreeing with prosecutors to hide the identity of the informant and allowing the informant and the two police officers to lie on the stand about the nature of their relationship.

In Camden, New Jersey, two Camden police officers were charged October 13 with falsifying evidence in drug cases in an ongoing scandal that has caused prosecutors to drop more than 200 criminal cases. Officers Antonio Figueroa, 34, and Robert Bayard, 32, were members of a special operations unit assigned to crack down on open-air drug markets, but five unit members became drug traffickers themselves. They are accused of stealing from some suspects, planting drugs on others, threatening to plant drugs to coerce cooperation, paying informants with drugs, keeping drugs for their own use, conducting illegal searches, giving false testimony and filing false reports between 2007 and last year. Three other officers have already been charged in the year-long investigation. Figueroa and Bayard had been on suspension for the past year. Figueroa faces eight charges and Bayard five. For both, the most serious is conspiracy to violate the civil rights of a citizen, punishable by up to 10 years in prison.

In Des Moines, Iowa, a former Pleasant Hill police officer was sentenced last Friday to three years' probation for stealing methamphetamine from the department evidence room and crashing his police SUV while tweaking. Former officer Dan Edwards had pleaded guilty to DUI, illegal drug possession, and third-degree burglary. Edwards went down after the April crash, when a state trooper reported finding meth on him. Edwards' attorney said he suffered post traumatic stress disorder after tours of duty in Afghanistan and Iraq and this his wife and infant son had been killed in a car crash years earlier.

In Pensacola, Florida, a former Escambia County Road Prison corrections officer was found guilty last Thursday of providing Xanax to a prisoner in exchange for oral sex. Lawrence Vieitez was convicted on charges of delivery of a controlled substance, introducing contraband into a county detention facility and solicitation to commit prostitution. He went down after an inmate complained about his advances. The inmate was then wired, and a deputy was able to listen in as Vieitez offered to procure Xanax in exchange for oral sex. Vieitez then left to obtain the Xanax and was arrested when he gave it to the inmate. He's looking at up to 20 years in prison.

In Paterson, New Jersey, a former Passaic County corrections officer was sentenced last Friday to five years in state prison for smuggling heroin and homemade weapons into the Passaic County Jail. Former guard Marvin Thompson, 41, has no chance at early parole. During trial, prosecutors argued that Thompson smuggled the contraband into the jail with the intention of "discovering" it so he would look like a hero. He was then a provisional employee and hoped to win a permanent post. But an inmate working with Thompson snitched him out, and when he reported finding 10 packets of heroin, he was arrested. He was convicted of second degree official misconduct, possession of heroin, and filing false police reports.

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