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Another Reason for Mexico to End Its Drug War

2008 Dia Mundial de la Marijuana (Global Marijuana Day), March, Mexico City
Along with catalyzing devastating violence that has claimed 60,000 lives thus far, there's another good reason for Mexico to end its ill-fated drug war -- they are massively abusing the human rights of large numbers of their citizens. A report by the Center for Research and Teaching in Economics (Centro de investigación y docencia en económicas, CIDE) and the Research Consortium on Drugs and the Law (Colectivo de Estudios Drogas y Derecho, CEDD), highlighted on the Open Society Foundations Global Drug Policy Program web site, has found that most drug investigations in Mexico are for possession and consumption:

[I]n 2010, the crimes of possession and consumption accounted for 71 percent of all drug-related investigations initiated by the Public Prosecutor’s Office (Ministerio Público). Of all the rulings (convictions or acquittals) issued in 2010 for drug-related crimes, 18,343 -- 80.7 percent -- were for a single crime, meaning that no other crime was committed apart from the drug offense for which the person was sentenced or absolved.
 

The report also found disproportionate punishment for persons convicted of nonviolent distribution offenses:

[T]he maximum prison sentence for the crimes of production, commerce, supply, and trafficking of drugs -- all non-violent crimes -- is more than the maximum sentence established for violent crimes, including intentional homicide, rape -- both of minors and adults -- and robbery. The maximum prison sentence established for rape among adults is 11 years shorter than the maximum sentence established for drug offenses, and the maximum sentence established for robbery is 15 years, 10 years less than for drug crimes.
 

We see this kind of reversal of justice in the United States, of course, through the much-criticized sentencing guidelines and mandatory minimums. Mexico's public prosecutor's office does not seem more able or inclined to target its resources toward violent crime or the highest levels of the drug trade then the US Dept. of Justice does.

Of course in Mexico they have a full-blown crisis of drug trade violence -- prompting many Mexicans to call for legalization or at least a serious examination of it. So far the incoming president has vowed to continue to pursue the same strategies that led to the crisis, and it sounds like he has the full support of the prosecutor's office. But eventually things have to give.

Washington DAs Begin Dropping Marijuana Possession Cases

Some Washington state prosecutors have begun dismissing pending marijuana possession cases in the wake of last week's vote to legalize marijuana in the state. King County (Seattle) prosecutors have dismissed 175 cases involving adults 21 or over, while Pierce County (Tacoma) prosecutors have dropped about 50 more.On Tuesday, Clark County (Vancouver) prosecutors announced they, too, were dropping possession cases.

King County Prosecuting Attorney Dan Satterberg is no longer prosecuting small-time marijuana possession cases. (kingcounty.gov)
I-502 makes the possession of up to an ounce legal under state law and directs the state to come up with a system of state-owned marijuana stores. The possession provision doesn't come into effect until December 6, but some prosecutors have decided to apply the new law retroactively.

"Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month," King County Prosecuting Attorney Dan Satterberg said in a statement last Friday.

Satterberg has jurisdiction over unincorporated King County, as well as cases on state highways and at the University of Washington. In Seattle itself, which has had a lowest law enforcement priority police in place for nearly a decade, City Attorney Pete Holmes has had a policy of refusing to prosecute simple possession cases.

Satterberg had 40 cases in which criminal charges had already been filed. Those charges will be dismissed. Another 135 cases awaiting charging decisions will be sent back to the arresting police agency.

Pierce County Prosecutor Mark Lindquist told the Seattle Times he was dropping "about four dozen" cases where pot possession was the only offense. "The people have spoken through this initiative," said Lindquist. "And as a practical matter, I don't think you could sell a simple marijuana case to a jury after this initiative passed."

In an interview with the Times, Satterberg said his office would continue to prosecute marijuana possession above one ounce, but would have "a buffer for those whose scales are less than accurate." His office will also charge felony possession for people holding more than 40 grams, but Satterberg said his office routinely allows such defendants to plead down to a misdemeanor.

More than 241,000 people have been arrested for small-time pot possession in Washington in the past 25 years, including more than 67,000 in the last five years. That will end as of December 6, but at least some Washington prosecutors aren't waiting.

WA
United States

Hundreds of Marijuana Cases Were Dismissed in Washington This Week

Two county prosecutors in Washington State have dismissed 220 pending marijuana possession cases, in response to the passage of I-502, according to the Seattle Times.

"Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month," [King County Prosecutor Dan] Satterberg said in a statement.
 

Satterberg dismissed 175 possession cases involving persons age 21 or over possession one ounce or less. In neighboring Pierce County, Mark Lindquist said he was dismissing about four dozen marijuana cases, but was continuing to prosecute them if they were secondary to more serious offenses such as DUI.

"The people have spoken through this initiative," said Lindquist. "And as a practical matter, I don't think you could sell a simple marijuana case to a jury after this initiative passed."
 

As I noted Wednesday, Tuesday really happened.

These 220 people are lucky. Drug convictions including marijuana can trigger a range of collateral consequences, including loss of college aid, difficulty qualifying for public housing and other penalties, in Washington including the ability to trigger a firearm. According to marijuana-arrests.com:

Employers, landlords, credit agencies, licensing boards for nurses and beauticians, schools, and banks now routinely search these databases for background checks on applicants. A simple arrest for marijuana possession can show up on criminal databases as "a drug arrest" without specifying the substance, the charge, or even if the person was convicted. Employers and landlords, faced with an abundance of applicants, often eliminate those with criminal arrest records, especially for drugs. Nurses, security guards, and others licensed by the state can lose their licenses and their jobs from just one misdemeanor marijuana arrest.

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://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://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.

10 Years to Life for Medical Marijuana

 

ReasonTV released this video a few weeks ago about the federal medical marijuana crackdown and the case of Aaron Sandusky, who is facing federal charges for operating a dispensary:
 

Woman Walks After Prosecutorial Perfidy in Tucson [FEATURE]

Special to the Chronicle by Houston-based investigative journalist Clarence Walker, who can be reached at cwalkerinvestigate@gmail.com. This article is the latest in his continuing series on prosecutorial misconduct in the war on drugs.

Aurora Lopez-Avila is back home in Mexico. A mother of three, she struggles daily to rebuild a shattered life that once hung in the balance -- after sitting for more than two years in a Tucson, Arizona, federal jail facing charges that she attempted to transport 10 kilos of cocaine across the Arizona-Mexico border on December 8, 2009.

Acting on a tip, customs inspectors searched her Dodge Stratus and turned up the cocaine, neatly packaged in the back seat. She was charged with trafficking more than five kilos of cocaine and faced up to life in prison.

But Lopez-Avila was freed this past May -- after Tucson-based federal Circuit Court Judge Cindy Jorgenson dismissed the drug charges because of blatant prosecutorial misconduct by Assistant US Attorney Jerry Albert during her trial last November.

Albert attempted to mislead the jury into convicting her by presenting a "falsified version" of questions that a federal magistrate judge had earlier asked Lopez-Avila, when she had originally pleaded guilty. The key question was whether she had been threatened to make her take the drugs across, but Albert instead made it seem as if the question was whether she had been threatened to make her plead guilty.

Informed of Albert's intentional act to undermine justice, Jorgenson declared a mistrial. And now a federal appeals court has demanded that Albert be investigated. It's another example of a "win at all costs" mentality that has infected federal prosecutors' offices across the land.

It went down like this:

In an effort to employ a duress defense, Lopez-Avila claimed during her trial that she had been forced to transport the drugs. To discredit her claim, Albert, a veteran narcotics prosecutor, attempted to show that her testimony contradicted what she said during an earlier magistrate's hearing. The court's written opinion showed that Albert intentionally presented to the court and counsel an altered version of the prior hearing's colloquy, making it seem as if the defendant had said that she had never been forced to smuggle the drugs she was charged with.

The 9th US Circuit of Appeals, which has jurisdiction over Arizona, was so angered over Albert's twisting the words of another judge that it has called for an investigation by the US Justice Department.

"In eight years as US Attorney and 26 years on the trial bench, this is the worst I've ever seen from an Assistant US Attorney," 9th Circuit Judge Donald Walter told the Arizona Star, adding that he was even surprised to hear that Albert was still working as a federal prosecutor.

Lopez-Avila first pleaded guilty in a bid to win a sentencing reduction, but later withdrew her plea.

Tucson defense attorney Mark Williman uncovered prosecutorial misconduct and saved his client from years in prison.
"In this case," her defense attorney, Tucson-based Mark Williman, explained, "Ms. Lopez-Avila was motivated to remain quiet about the duress because she believed there was a woman in jail with her would tell her 'handler' about her tipping off the government. And as a result, Lopez-Avila feared her family would be harmed."

When the federal probation officer tasked with conducting her pre-sentence investigation asked Lopez-Avila why she committed the offense and how much money she would receive, she suddenly broke down, sobbing uncontrollably. That's when she told the investigator and her attorney the truth of being coerced to transport the drugs. Speaking in Spanish, aided by translator, Lopez-Avila confessed she was "forced to drive the vehicle across the border and that she would make $1,500 for her misdeeds," Willimann explained.

Then she made a startling admission. "I thought I was carrying diet pills," Lopez-Avila told the officer and her attorney.

Assistant US Attorney Albert "got desperate thinking the government could lose the case because their own agent told the jury there was 'no evidence' that Ms. Lopez-Avila actually knew she had cocaine in the vehicle," Williman said. That assertion was made plausible by Lopez-Avila's statement that she actually thought she was carrying diet pills. While carrying diet pills across the border is also a crime, it is not the crime of cocaine trafficking.

To convince the jury to find Lopez-Avila "not guilty" due to being forced to commit the crime, Willimann had no choice but to have her testify in her own behalf to the fear she felt if she didn't comply with the mob boss order.

"My client previously pleaded guilty to the charges before Magistrate Judge Jennifer Zipps but subsequently she changed her plea to 'not guilty' and went to trial, Willimann explained.

She had an incentive to plead guilty early on. Under a provision of the federal sentencing guidelines known as "Acceptance of Responsibility," there is a benefit for defendants to admit guilt to prevent the government from wasting resources preparing for trial.

"When Ms. Lopez-Avila first pleaded without a plea agreement, we were vying for the extra level reduction under the provision, which is why I encouraged her to plead quickly," Williman explained. "At trial, Ms. Lopez-Avila's defense was the fact she was coerced by a drug boss to bring the drugs across the border and if she had not complied, her family would have been hurt."

If a jury had believed Lopez-Avila had been coerced, it was duty bound to follow the law and find her not guilty under the law of "duress." But to make sure he would undercut Lopez-Avila's "duress" defense, prosecutor Albert engaged in prosecutorial misconduct by violating the law to the point of "omitting the words" of the magistrate to undercut her testimony and convict her.

Albert's chosen tactic was the creative editing of the federal magistrate's earlier questioning. Reading from an altered transcript to carry out the "win at all cost" scheme, Albert asked Lopez-Avila if she remembered testifying at an earlier hearing. As Albert quoted the exchange of dialogue between Lopez-Avila and the magistrate, the magistrate asked, "Has anyone threatened you?"

"No," replied Lopez-Avila.

Reminding Lopez-Avila she had said she had not been threatened, Albert then turned to her and asked, "When you testified before the magistrate that you were not threatened in this case.... was that a lie?"

"Yes," said Lopez-Avila.

What Albert was attempting to do was to demonstrate to the jury that Lopez-Avila had lied on the stand when she testified she had been threatened into smuggling the drugs because her exchange with the magistrate when she originally pleaded guilty showed that she had not been threatened by drug traffickers.

But Alberts' creative editing of the magistrate's questioning and Lopez-Avila's answers misrepresented what had actually been said. What the magistrate had actually asked was, "Has anyone threatened you or forced you to plead guilty?"

"No," she replied.

http://www.stopthedrugwar.org/files/judge-cindy-jorgenson-200px.jpg
Judge Jorgenson (wikimedia.org)
Alberts thought he had managed to pull a fast one on the defense and the court and delivered a crushing blow to Lopez-Avila's credibility, but he didn't count on defense attorney Willimann's tenacity. When Willimann re-read the transcript of the magistrate's hearing, he notified Judge Jorgenson of the "omitted words" spoken by the magistrate. Jorgenson read Albert's written version, then she read the actual correct version and agreed the prosecutor tried to mislead the court and the jury to deny Lopez-Avila a fair trial. But Jorgenson denied Willimann's request to dismiss the case based because of Albert's prosecutorial misconduct.

Instead, Jorgenson found that a mistrial had occurred. "The court cannot cure the error by giving a jury instruction and I hereby grant the defense request to declare a mistrial," Jorgenson announced.

Willimann appealed Jorgenson's denial of his motion to dismiss the case against his client. Documented in the appeal was the prosecutor's illegal conduct surrounding Lopez-Avila's duress defense during trial.

In their brief to the 9th Circuit, Albert's colleagues conceded that his misquoting of the magistrate's words "had been intentional but claimed that the reading had been a fair one." But the judges on the panel weren't buying it.

"It is hard to see how a prosecutor could interpret a magistrate's question, 'Has anyone threatened you or forced you to plead guilty?' to mean 'Has anyone threatened you to commit this offense?" wrote Judge Carlos Bea.

Nor was the conservative jurist pleased with the revelation that the Southern Arizona US Attorney's Office was trying to make the "Albert affair" go away by requesting that the 9th Circuit remove Albert's name from their published opinion that criticized his unethical conduct.

"The effort by the Justice Department to conceal the name of its prosecutor, was in sharp contrast in announcing  the accomplishments of its prosecutors in public," Bea noted. "The move reaffirmed the view of many lawyers that the Justice Department often acts reflexively in defense of its lawyers... and often resists efforts to hold abusive prosecutors accountable."

With the charges of prosecutorial misconduct deepening, Judge Jorgenson dismissed the charges against Lopez-Avila in May and issued a stinging rebuke not only to Albert, but to the entire Southern Arizona US Attorney's Office.

"This case is not simply about the mistake of one Assistant US Attorney, but rather the prosecuting office as a whole," Jorgenson wrote.

"I'm so grateful. Thank you very much," a jubilant Lopez-Avila told Williman in Spanish when the decision was issued before returning home to Mexico after her sojourn in the US criminal justice system.

Lopez-Avila was caught smuggling drugs. Her claim that she only did it because she was threatened by drug traffickers may or may not be true. We will never know because the case never made it to a verdict. The case never made it to a verdict because Assistant US Attorney Jerry Albert was so desperate for a win that he was willing to subvert the cause of justice.

The cogs of federal justice continue to grind in Tucson. The drug war provides plenty of fodder. And Jerry Albert remains on the job, at least for now -- the Justice Department's Office of Professional Responsibility is investigating.

Tucson, AZ
United States

Federal Medical Marijuana "Truth in Trials Act" Reintroduced [FEATURE]

US Rep. Sam Farr (D-CA) Tuesday introduced House Resolution 6134, the Truth in Trials Act, which would allow defendants in federal criminal prosecutions the ability to use medical marijuana evidence at trial. The bipartisan legislation has 18 cosponsors so far, including Reps. Barney Frank (D-MA) and Ron Paul (R-TX).

http://stopthedrugwar.com/files/sam-farr-and-ashley-epis.jpg
Reps. Sam Farr and Barbara Lee, with Ashley Epis, daughter of medical marijuana prison Bryan Epis, 2003 (safeaccessnow.org)
This is not the first time around for the act -- a version was first introduced in 2003 and it has been introduced repeatedly since then -- but this time it comes as federal crackdowns in states like California, Colorado, and Montana are creating an increase in federal drug prosecutions against medical marijuana providers. Since the crackdowns began, at least 70 people who were medical marijuana patients or providers have been indicted on federal drug charges.

Currently in federal criminal cases, medical marijuana providers are not allowed to present evidence that they were operating under state medical marijuana laws. Federal prosecutors can exclude all evidence of medical use or state law compliance in federal trials, virtually guaranteeing the convictions of medical marijuana patients and providers.

"The federal government has tilted the scales of justice towards conviction by denying medical marijuana defendants the right to present all of the evidence at trial," said Congressman Farr. "My bill would restore due process rights to law-abiding citizens acting within the parameters of state and local laws. Juries should hear the entire story of a patient's medical marijuana use before choosing to convict, not the heavily edited version they currently hear."

Under the bill, people facing federal prosecution could "introduce evidence demonstrating that the marijuana-related activities for which the person stands accused were performed in compliance with state law regarding the medical use of marijuana."

The bill would also create an affirmative defense under federal law. "It is an affirmative defense to a prosecution or proceeding under any federal law for marijuana-related activities, which the proponent must establish by a preponderance of the evidence, that those activities comply with state law regarding the medical use of marijuana," the bill says.

And the bill would make it harder for the federal government to seize and destroy medical marijuana. "No plant may be seized under any federal law otherwise permitting such seizure if the plant is being grown or stored pursuant to a recommendation by a physician or an order of a state or municipal agency in accordance with state law regarding the medical use of marijuana," the bill says.

"The federal government should be leaving enforcement issues up to the local and state officials who designed the medical marijuana laws in the first place," said Steph Sherer, executive director of Americans for Safe Access, the country's leading medical marijuana advocacy group and strong supporters of the legislation introduced today. "But, as long as the Justice Department is going to arrest and prosecute people in medical marijuana states, defendants ought to have a right to a fair trial. The 'Truth in Trials' Act will restore the balance of justice and bring fundamental fairness to federal medical marijuana trials."

Most federal medical marijuana cases result in plea bargains due to the denial of a defense at trial. But some defendants still choose to fight the charges -- and they lose. That was the case with Morro Bay, California, dispensary operator Charles Lynch, who was convicted and sentenced in 2008 after being unable to cite his compliance with state law.

Lynch is out on bail pending his appeal, which is currently before the 9th US Circuit Court of Appeals. He's doing better than Chico medical marijuana provider Bryan Epis, who is currently sitting in federal prison working on a 10-year sentence after fighting and losing his case and his appeals.

The bill could help -- not only with the immediate issue of medical marijuana legal defenses in federal court, but also in the broader ambit of marijuana law reform, advocates said.

"It's definitely a step in the right direction, even if it isn't as far-reaching as some of the other bills," said Marijuana Policy Project communications director Morgan Fox, alluding to the four other marijuana-related bills introduced in Congress this session. "If the administration is going to continue cracking down they way they have been, it would be nice to have an affirmative defense."

"This is the fifth marijuana bill this session," noted Drug Policy Alliance national affairs director Bill Piper. "That's a sign of momentum. It used to be a struggle to get one introduced, and now we have five and could see even more. When you look at issues that are moving, you see a lot of competing bills. This is a good sign," he said.

Piper held out little hope of any forward progress on the bill this year. "It's unlikely to go anywhere in the Republican-controlled House, but you never know about next year," Piper said.

But while the conventional wisdom is that marijuana reform legislation is unlikely to move in the House, Fox isn't so sure.

"The needle seems to be swinging, and it's possible House conservatives might try to use this in a symbolic way to go against the administration in an election period without having to significantly change their policies," he said, noting the low number of federal prosecutions it would actually effect. "It would be significant for the people getting arrested, of course, but that number is fairly small."

Allowing medical marijuana patients and providers to mount evidence that they are complying with state medical marijuana laws is the right thing to do, said Piper.

"It's just common sense to allow patients to tell juries the truth," Piper said. "It's not asking for much, just for defendants to be able to tell the truth."

Washington, DC
United States

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

California Assembly Passes Medical Marijuana Regulation Bill [FEATURE]

A bill that would for the first time bring statewide regulation to California's chaotic medical marijuana industry passed the Assembly Thursday. The legislation, Assembly Bill 2312, barely passed on a 41-29 vote, with 41 votes being the minimum required to move the legislation to the Senate before a Friday deadline.

It must still be approved by the Senate and signed by Gov. Jerry Brown before it becomes law.

Pushed by patients, dispensaries, and advocates organized into the broad-based coalition Californians to Regulate Medical Marijuana (CRMM) and sponsored by Assemblyman Tom Ammiano (D-San Francisco), the bill would create a nine-member commission to come up with regulations to govern medical marijuana enterprises. Under California's current medical marijuana laws, there is no statewide regulation, leaving a patchwork quilt of often conflicting local approaches to the issue.

The result has been uneven implementation of the law, with some areas flooded with unregulated dispensaries, while others ban their operation, leaving patients to grow their own or seek it out on the black market. The lack of state regulation has also left an opening for recalcitrant prosecutors and law enforcement officials to criminally prosecute dispensary operators and growers under differing interpretations of the state's laws. And it has left an opening for federal prosecutor and the DEA to swoop in, claiming the unregulated dispensaries are little more than "pot shops."

In the wake of the lack of clarity at the state level, counties and municipalities across the state have considered or enacted their own regulatory schemes or outright bans. The result is a situation where what is tolerated on one side of a suburban highway may be prosecuted on the other side.

In a sop to medical marijuana opponents, Ammiano accepted an amendment that would allow localities to continue to ban dispensaries. The bill originally would have required that local governments allow at least one dispensary for every 50,000 residents unless voters in a local initiative decided otherwise. Now, city or county elected officials could make that decision. That means even with statewide regulations, the patchwork quilt effect could remain.

But the language was necessary to win enough votes among Democrats to get the bill passed. No Republicans voted for it.

"The people of California, the attorney general and even law enforcement and patients, all want a clear set of rules to regulate an industry that has been in existence since 1996," Ammiano said, noting broad support for medical marijuana in the state. "Cartels and other organized crime thrive in unregulated markets. Today's vote was significant because it represents a considerable shift that the legislature is now willing to take responsibility for the effective regulation of medical cannabis in California. With the continuing federal crackdown, we simply cannot afford to continue keeping our heads in the sand and pretend that everything is fine."

Since last fall, when federal prosecutors in the state announced their crackdown, the DEA has raided numerous dispensaries and other medical marijuana-related businesses, including Oaksterdam University. In the past year, hundreds of dispensaries have shuttered their doors, in part because of the fear of federal prosecution and in part because of local moves against them.

Hostility to medical marijuana was evident in the Assembly debate before the bill passed, with some members continuing to deny that it has any medical utility.

Medical marijuana is "a phrase that is meaningless," said Assemblywoman Linda Halderman (R-Fresno), a doctor and surgeon. The discussion about it is really a debate over "whether people should be able to legally get high," she said.

Assemblyman Dan Wagner (R-Irvine) complained about the make-up of the bill's Board of Medical Marijuana Enforcement, which would include two patients, an industry representative, and a doctor familiar with medical marijuana among its nine representatives.

"Something smells when you stack the deck like that, and we know what that smell is," he said.

But Assemblywoman Susan Bonilla (D-Concord) said it was time to get real. "What it does is begin the process of regulation of something that is happening anyway," she said.

"Some people want to preserve the chaos and confusion to say that medical marijuana has failed or is a sham," Ammiano said during the debate in response to Republican critics.

The bill was modeled after an initiative crafted by CRMM last winter after the federal crackdown began. The group, which includes the core of the team behind 2010's Proposition 19 effort, briefly tried to get the measure on the ballot this year before shifting gears to work with Ammiano in trying to get it passed through the legislature after realizing it did not have sufficient funding for a costly signature-gathering effort.

CRMM pronounced itself pleased with the bill's progress so far.

"More than 15 years after Californians passed Proposition 215, patients are still in need of a commonsense approach to the production and distribution of medical marijuana," said Don Duncan, California Director with Americans for Safe Access, one of the member organizations of CRMM. "We applaud the Assembly for taking leadership on statewide regulations and we hope the state Senate also does the right thing by addressing medical marijuana as a public health issue."

Now, it's on to the Senate. California could still end up with a state-regulated medical marijuana industry this year.

Sacramento, CA
United States

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

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