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Law Enforcement: Nebraska Man Files Complaint Over Bogus South Dakota Bust

As part of a new Drug War Chronicle occasional series on victims of the war on drugs, we told the story of Eric Sage back in November. Now, there are new developments.

https://stopthedrugwar.org/files/ericsage.jpg
Eric Sage
On his way home to Nebraska after attending the Sturgis Motorcycle Rally in South Dakota last summer, Sage's motorcycle was pulled over by a highway patrolman. A pick-up truck accompanying him also stopped, and when the patrolman searched that vehicle, he found one of the passengers in possession of a pipe and a small amount of marijuana. Bizarrely, the patrolman charged not only all the pick-up truck passengers but also Sage with possession of paraphernalia.

Unlike most people arrested on drug charges -- even bogus ones -- Sage refused to roll over. That prompted local prosecutors to threaten to charge him with "internal possession," a crime (so far) only in South Dakota, and a charge even less supported by the evidence (there was none) than the original paraphernalia charge. After repeated multi-hundred mile trips back to South Dakota for scheduled court hearings, Sage's charges mysteriously evaporated, with prosecutors in Pennington County lamely explaining that they had decided the charge should have been filed in another county.

Sage was a free man, but his freedom wasn't free. Sage says his encounter with South Dakota justice cost him thousands of dollars, lost work days, and considerable stress. Now, he is seeking redress.

On Monday, Sage and South Dakota NORML announced that he had filed complaints with several South Dakota agencies and professional standards groups regarding the actions of the prosecutors, Pennington County (Rapid City) District Attorney Glenn Brenner and Assistant DA Gina Nelson, and the highway patrolman, Trooper Dave Trautman.

Sage accuses Trautman of improperly charging everyone present at the incident with possession of paraphernalia. He also accuses Trautman of concocting an arrest report long after the fact to support the new charge of internal possession. Sage accuses Assistant DA Nelson and her boss of prosecuting a case they knew was bogus and of threatening to convict him of an offense where they knew he was not guilty because he refused to plead to the original paraphernalia charge.

"They mugged me," Sage said. "They cost me $4,000. I had to travel to Rapid City several times, I had to hire a lawyer, I missed work. It cost me three times as much to get them to drop a bogus charge as it would have cost me to say I was guilty of something I didn't do and pay their fines. They only quit when they ran out of clubs to hit me with."

https://stopthedrugwar.org/files/sturgisrally.jpg
Main Street during Sturgis Rally (courtesy Wikimedia)
Prosecutors didn't even have the courtesy to let him or his local attorney know they had finally dropped the charges, Sage said. "My lawyer called Gina Nelson several times to see if I needed to drive up on Nov. 21," he said. "She wouldn't return the calls. So when I got there, I found the charges had been dropped on the 16th. Gina had purposefully made me drive one more 500 mile round trip, for nothing."

Now, we'll see if the powers that be in South Dakota will bring the same dogged determination to seeing justice done in this case as they do to going after anybody who even looks like a small-time drug offender. You can read Sage's complaints to the South Dakota Department of Public Safety, the South Dakota Bar Association Disciplinary Committee, and the Pennington County Commission here.

Chewing and Grinding: A South Dakota Drug War Story

special to Drug War Chronicle by Bob Newland

[Editor's Note: Drug War Chronicle is beginning a new occasional series of reports on the day-to-day workings of the war on drugs. We spend a lot of time reporting on committee hearings, election campaigns, ballot initiatives, speeches, statements, findings, and even reporting on reports. But while we chronicle the progress (or lack thereof) of drug reform efforts, the drug war grinds on. Last year, some 1.8 million people were arrested on drug charges. We aim to start telling some of their stories -- or to let them tell them themselves. They portray many small injustices nestled inside the larger injustice that is drug prohibition, but that's just business as usual. And business as usual is the problem, as these stories will indicate.

Our first drug war account comes from South Dakota. Famed among motorcycle enthusiasts for the Sturgis Motorcycle Rally, the state also feeds off the event's attendees. As the rally draws nearer every August, South Dakota Highway Patrol cars hover beside the interstates like vultures awaiting the arrival of their prey, and the hunting is good. The Patrol's online publication, The Newsroom, shows a whopping 38 felony and 192 misdemeanor drug arrests for Sturgis week, compared to a normally single-digit number of felony drug busts each week and misdemeanor drug busts in the low dozens.

There's an old line among Sturgis attendees about South Dakota's enforcement activities: "Come on vacation, leave on probation." (An alternate version: "Come on a stroll, leave on parole.") But, as this week's story shows, even when they don't get you, they get you.]

https://stopthedrugwar.org/files/sturgisrally.jpg
Main Street during Sturgis Rally (courtesy Wikimedia)
Day after day, it chews and grinds. Its only purpose is chewing and grinding. The chewing and grinding gives it no satisfaction, only another day of existence. Another day of chewing and grinding. The War on Some Drugs has endless hunger. Eric Sage has felt that hunger turned toward him.

Sage, 31, works at a family-owned manufacturing company in Sidney, Nebraska. Sage was riding his motorcycle home August 7, after spending a couple of days at the Sturgis Motorcycle Rally, accompanied by Jorge, who was driving Sage's pickup with passengers Kalie and Barb.

Sage was stopped by South Dakota Highway Patrolman Dave Trautman ten miles
east of Rapid City on Interstate 90 for "weaving" in his own lane. Jorge pulled over also, and stopped ahead of Sage's bike, which was ahead of the patrol car. The patrol car's dash-cam records video of what happens in front and audio of what's said in the car.

Trautman ticketed Sage for a minor traffic infraction, then asked him to wait by the guard rail while he talked to Jorge. Trautman brought Jorge to the patrol car, berating him for tailgating, then asked for permission to search the pickup. Jorge told him the pickup belonged to Sage, but gave permission to search when Trautman told him the driver had that right. Trautman left Jorge in the patrol car, then got out and paused to speak to Sage.

Sage says Trautman asked for permission to search, and, having received it, asked, "Where would I find anything illegal in there?" Sage says he replied slightly sarcastically, "I don't know. Glovebox?"

Trautman then proceeded to the pick-up and ordered the two women passengers to sit on the grass at the road's edge. After spending 16 minutes searching the vehicle, he emerged, poured out a beer, and is seen in the dash-cam coming back to the patrol car with one of the women and a handbag.

"There's weed in your purse," Trautman said in the first comment audible on the tape.

"Yeah," replied the woman, Barbara.

"Where's the weed that was in the glove box?" Trautman then asked. Barb was bewildered by the question. She then admitted to having smoked weed that morning, having nearly finished off the bag in her purse, with the pipe also in her purse.

"With these guys?" Trautman asked.

"Yeah," she said.

Trooper Trautman then walked back to the pickup, looked around the passenger side, and returned to the patrol car. "Here's what I'm gonna do," he resumed. "Everybody's admitted smoking weed..."

https://stopthedrugwar.org/files/ericsage.jpg
Eric Sage
The dash-cam tape ends at this point. In a later written report on the incident, Sage said he was told that the camera "stopped."

Trautman wrote one of the women passengers, Kalie, a ticket for the open container. But he then also cited all four travelers with "possession of paraphernalia," which seems unsupported by the evidence, given that only one of them -- Barb -- was found in possession of paraphernalia. But it gets weirder.

Barb paid her paraphernalia fine, about $250. Kalie paid her open container fine. Jorge is considering what to do. Eric returned to Rapid City August 21 and pled not guilty, thinking it ludicrous that someone on a motorcycle could get charged for something somebody in a nearby pickup had in her purse.

[Editor's Note: The unwary protagonists of this tale did things they shouldn't have done and didn't do things they should have done to avoid getting into this mess in the first place. The basic rule is never consent to a search and keep your mouth shut. As Scott Morgan, Associate Director of the civil liberties organization Flex Your Rights pointed out: "This whole incident stems from the driver's initial decision to consent to a police search. Evidence was discovered, at which point the suspects needlessly implicated one another in criminal activity by admitting to marijuana use. Refusing the search and declining to answer incriminating questions could likely have prevented the subsequent legal fiasco that resulted from this traffic stop."]

Asked why he fought the charges, given that he knew to begin with that it would cost him more than just paying the fine for paraphernalia, Sage said, "I wasn't guilty. I had a clean record. Why should I say I did something I didn't do?"

He was scheduled for a "dispositional" hearing October 15. That's where the state's attorney makes his last plea offer. On October 12, Gina Nelson of the Pennington County state's attorney's office left a message on Eric's phone: "If you don't plead to 'paraphernalia', we'll charge you with 'ingestion'" -- an offense unique to South Dakota.

South Dakota codified law 22-42-15 prohibits ingesting anything except alcohol for the purpose of intoxication, and they'll put you in jail for as long as a year, and fine you as much as $1,000, for wanting to get "high" instead of drunk. It also doesn't matter if you were even in South Dakota when you ingested the drug: "The venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused."

Sage refused to cave in. At the hearing, Nelson did as promised, withdrew the paraphernalia charge and instituted an ingestion charge. A preliminary hearing was set for November 21, for a judge to decide whether there was enough evidence to take the case to trial.

For Eric Sage, who has a spotless criminal record, the stakes had just leaped at least fourfold. Chewing and grinding.

The search had yielded .1 oz. of marijuana, according to Trautman's arrest report, which probably includes the weight of the baggie (1/10 oz. on a postal scale) and a pipe, both found in Barb's purse. Sage said he wasn't even aware that anything besides a pipe was in evidence until he saw the report in early November.

South Dakota law requires an arrest report on a Class 1 misdemeanor (ingestion), but not on a Class 2 (paraphernalia), so Trooper Trautman dutifully sat down nine weeks after the day he ticketed Eric Sage and wrote a report in which he alleges that Sage confessed to smoking marijuana that day out of the bag in question. The alleged confession took place after Trautman's dash-cam "stopped." But Sage maintains that Trautman merely informed him he was "doing him a favor" by only charging him with paraphernalia and not taking him to jail.

Trautman's report contains several statements that don't jibe with the camera's story, and he admitted not remembering some details more than two months after the fact. Still, the report contained enough claims by the trooper to arguably support the charge. In other words, Trautman tried to do the job the state's attorney wanted him to do.

A preliminary hearing was set for November 21. Sage retained an attorney, Rena Hymans of Sturgis, who called Assistant States Attorney Nelson repeatedly asking if she was really going to move forward on the case. She left detailed messages on Nelson's voice mail: "Are you really going to have a prelim on this?" The calls went unreturned.

On November 21, Sage drove the 241 miles from his Nebraska home to the Pennington County Courthouse in Rapid City. After meeting with Hymans, the pair went to the Clerk of Courts, who handed them a piece of paper saying the charges had been dismissed by Nelson five days earlier.

In dismissing the charges, Nelson cited "jurisdictional issue (charges involve Meade County)." In other words, faced with having to actually prosecute the case, Nelson and her boss, Pennington County States Attorney Glenn Brenner, punted. Since they now argued that the "ingestion" offense for which Sage was charged allegedly took place at Sturgis, in Meade County, Nelson dumped the case on Meade County States Attorney Jesse Sondreal, who has declined to pursue it. After all, who really wants to prosecute a case where there is no evidence to support the charge?

Despite losing a skirmish in the war on drugs, Brenner and Nelson were able to stick it to Sage one final time by making him take the long journey to Rapid City for nothing. Sage's expenses attributable to being charged with a crime that presented no evidence have mounted to at least $3,000. And so the war on drugs chews and grinds.

"They do this all the time at the Sturgis rally," Sage said after the charges were dropped. "They pull people over, then they figure out why. It's just revenue for them. I'd have played a part in that if I'd paid the ticket. It turns out I played a part anyway. I was mugged. I was mugged by guys in suits with law degrees who knew I wasn't guilty. They just wanted to see me pay. It was like sport to them."

Chewing and grinding, guilty or innocent, the beast doesn't care. Chew them up and swallow them, or chew them up and spit them out. They're still chewed up. Charge with a crime, and if they fight it, punish them. Make them pay. Up the ante. Make them pay again. And, if after having the gall to demand their day in court, they lose, whack them hard for taking up the court's valuable time. And so it goes. Just another day in the drug war. This time it was South Dakota, but it could be Anywhere, USA.

Update on Pain Physician Dr. William Mangino

In July and September I wrote here about the plight of Bill Mangino, a Pennsylvania physician who was decent enough to treat patients with the pain medications (opiates) that they needed, and was punished for these good deeds with a prosecution and now imprisonment -- all over a crime that never happened and for which no evidence exists happened. Yesterday I heard from Dr. James Stacks, a Mangino supporter and board member of the Pain Relief Network, with the news that Dr. Mangino had asked we post correspondence he sent to a judge prior to a hearing today that he hopes will get him a new trial and freedom in the meantime. The briefs were put together by Mangino himself, written by hand, but has been scanned for our edification online as well. Interested parties can read some commentary on it by Alex DeLuca here, or go straight to the briefs online here or here. A cutting quote that Dr. Mangino used as his signature line in the documents:
Statutes must mean what they say... and say what they mean.
Location: 
PA
United States

Law Enforcement: With Violent Crime on the Rise, New Orleans Police Are Arresting Thousands of Drug Offenders, Traffic Violators

A watchdog group has criticized the New Orleans Police Department (NOPD) for wasting man-hours and resources by arresting thousands of traffic violators, drug users, and other low-level offenders even as the city faces a wave of violent crime. NOPD brass are defending their focus.

In a report released early this month, the Metropolitan Crime Commission, a private watchdog group, found that police made some 29,000 arrests during the first half of 2007, but more than half of them were for traffic offenses or failure to pay municipal fines or traffic tickets. Only 2% of arrests were for violent crimes. That percentage stayed roughly the same even as violent crime rose by 17% between the first and second quarters of the year.

The commission noted that of the 15,000 arrests for traffic violations or unpaid fines, only 6,000 were for offenses that required the offender be arrested. The remaining 9,000 petty arrests could and should have been handled by citations, freeing up officers to deal with more serious offenses, the commission recommended.

Meanwhile, figures from the New Orleans Parish District Attorneys Office compiled by the commission show that drug cases accounted for 62% of all felony convictions in the second quarter, up from 55% in the first quarter. This as the number of convictions for violent felonies declined by 17% in the second quarter.

Such policies are just wrong-headed, the commission said. "Although we do not advocate that the NOPD disregard their obligation to enforce traffic and municipal laws, the MCC respectfully recommends that the NOPD focus upon violent and repeat offenders rather than perpetuating their high-volume arrest practices," the commission said in its report, which was presented this week to committees in the state legislature.

But New Orleans Police Superintendant Warren Riley defended his department, warning that if it stopped arresting minor offenders, the city would descend into anarchy. "It is a recipe for chaos. It is not a recipe for reducing crime," Riley told members of the House Judiciary and Senate Judiciary committees at the Louisiana Supreme Court.

Orleans Parish DA Eddie Jordan, whose office is responsible for prosecuting criminal cases, also rejected the report's conclusions. Arrests of minor offenders were often justified because of their lengthy criminal records, he said. And, ignoring the role of prohibition in creating violence in drug markets, he defended drug arrests by saying drug trafficking was often linked to violence.

Paey Starts Afresh with Call from Crist

Location: 
FL
United States
Publication/Source: 
St. Petersburg Times
URL: 
http://www.sptimes.com/2007/09/22/Pasco/Paey_starts_afresh_wi.shtml

Jury Duty: A Day in the Life of Our Corrupt War on Drugs

Via DrugWarRant, Michael Hawkins blogs the incredible story of his participation on the jury in a major drug case (read it, seriously). It's a familiar tale of prosecutors going after everyone in sight:

When the defendant's brother [convicted in a separate case] took the chair, the first words out of his mouth were, "I don't know why they went after my brother. He had nothing to do with any of it."
The government's total evidence against the defendant -- who was shown to be a hard-working construction worker who has not missed a day's work in eleven years -- consisted of the following: seven calls (out of over 65,000), over a two-day period, from the defendant's cellphone to one of the drug runners' phones; and the fact that the blue Honda Passport was registered to the defendant. Through skillful questioning, the defense lawyer showed how the defendant's brother frequently "borrowed" the defendant's car, and that the defendant frequently left his cellphone in the car, attached to a charger.

Hawkins theorizes that the guilty brother's refusal to identify key associates motivated prosecutors to target the other sibling, despite his apparent innocence. The jury figured it out, and justice was served. So the system works, I guess, if you don't mind prosecutors wasting your tax dollars on cases that should never have gone to trial in the first place.

This is hardly the first time a frustrated prosecutor has sought to make an example of someone who merely lived an innocent life adjacent to the criminality of others. Trophy prosecutions are an inevitable byproduct of the drug warriors' insatiable lust for headlines and elusive "victories." Meanwhile, innocence places drug defendants in a unique predicament because they have no information to barter in exchange for leniency.

Who among the great drug warrior army will stand up for the innocent victims in this glorious battle of good vs. evil? There are no words to describe the callousness of those who advocate blind sentencing in the war on drugs, while simultaneously casting an ever widening net that will so inevitably capture bystanders and pawns.

Location: 
United States

Another Pain Doctor on the Ropes

Another pain physician, Dr. William Mangino, was convicted on trumped up charges equating his reasonable prescribing of opioid pain medications in the course of practicing medicine with illegal drug dealing. He is in jail pending sentencing, unless someone comes up with the $3,500 bail he needs to get out. Dr. Mangino is a writer and a thinker, and throughout his lengthy travail he has sent a copious amount of email to people who are interested in this problem, including myself -- not just about himself but commentary on the issue too, and on prosecutions brought against other doctors, much of it very detailed. It always makes me sad when these cases turn out badly (or when most drug cases turn out badly, for that matter), but the combination of the absence of his emails with the news itself has reinforced the reality of it for me. It probably won't be long, though, before he writes some things for us about this latest stage and someone gets it typed up and posted. Alex DeLuca has an update that includes some of the defense strategies for challenging the conviction (which include a Motion for a Directed Verdict of Not Guilty), the address for writing to Dr. Mangino in jail, and other information.
Location: 
United States

I'm as angry as I've been in a long time over this one...

This one has me as angry as I've been in a long time. Tampa Bay, Florida, area resident Mark O'Hara served two years of a 25-year mandatory minimum sentence for 58 Vicodin pills. (Vicodin is an opiate pain reliever.) Sound like an extreme sentence for such a small amount, even if it was trafficking as the charges read? But there's more. O'Hara had a prescription for the pills. He's a pain patient. His doctor confirmed that he had prescribed the Vicodin to O'Hara and that he had been treating O'Hara for years. But prosecutors moved against him, and -- astonishingly -- argued to the judge that the jury shouldn't be informed that O'Hara had a prescription for the Vicodin, because there's no "prescription defense." And the judge -- doubly astonishingly -- actually bought it. Never mind the fact that the drug law O'Hara was charged with violating specifically exempts people who have a prescription. The appellate judges who threw out his conviction used words like "ridiculous" and "absurd" to describe it. Sickeningly, prosecutors have yet to say that O'Hara is off the hook and won't be taken to trial again. I think we need to organize on this one and press the system to do justice to the prosecutors and judge for the terrible atrocity they committed against Mark O'Hara. Knowingly imprisoning an innocent person is the functional equivalent of kidnapping. It should be treated as such. Prosecutors Mark Ober and Darrell Dirks should be in chains; their continued status as individuals holding power in the criminal justice system poses a threat to the safety of all Americans. The judge who enabled the kidnapping, Ronald Ficarrotta, may only be completely incompetent, but I'm not sure he should get that benefit of the doubt. Read more at Reason.
Location: 
Tampa, FL
United States

A New Activist's Tactic Emerges in the Rosenthal Trial

One of the feature stories I'm working on this week is the Ed Rosenthal re-trial on federal marijuana production and distribution charges, which ended yesterday with a split verdict. The trial was a complete waste of time since even if Rosenthal was found guilty, he could not be sentenced to anything more than the one day he had already served, but federal prosecutors were vindictively determined to get their man. Rosenthal's supporters were equally determined not to help the government, and that's where the new tactic emerged: A dozen people in the medical marijuana movement who had been subpoenaed to testify against Rosenthal simply refused. A civil contempt citation is the usual response to such refusals, but as the judge in the case noted, the contempt citation is designed to impel people to testify, not to punish the. When the judge asked if throwing them in jail for the weekend would change their minds, they all said no. Since they convinced the judge they were rock solid in their positions, he decided not to issue the citations and instead dismissed them. He also thanked them for the dignity they displayed in articulating their positions. We should all thank them for taking this courageous stand. Who knows? Maybe we can start a movement. Look for a feature story on the trial and the witness rebellion tomorrow.
Location: 
United States

OUR VIEW: Corruption exacts its toll in public funds and confidence

Location: 
United States
Publication/Source: 
The Standard-Times (MA)
URL: 
http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20070520/OPINION/705200318

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