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Medical Marijuana Update

The biggest medical marijuana news this week has to be the Oregon election that saw a pro-medical marijuana attorney general candidate win against a former interim US Attorney, but there was plenty of other news, as well. Let's get to it:

National

Last Wednesday, Mitt Romney got asked about medical marijuana and didn't much like the question or really answer it. "Aren't there issues of significance that you'd like to talk about?" Romney asks the interviewer. "The economy, the economy, the economy. The growth of jobs. The need to put people back to work. The challenges of Iran. We've got enormous issues that we face, but you want talk about -- go ahead -- you want to talk about marijuana? I think marijuana should not be legal in this country. I believe it is a gateway drug to other drug violations. The use of illegal drugs in this country is leading to terrible consequences in places like Mexico -- and actually in our country."

On Tuesday, a Mason Dixon poll found broad support for medical marijuana among Republicans. Some 67% of Republicans said federal officials should respect state medical marijuana laws. So did 75% of Democrats and 79% of independents.

Also on Tuesday, researchers reported that smoking marijuana can relieve MS symptoms. Researchers at the University of California at San Diego found that smoked marijuana relieved pain and muscle tightness spasticity. The research was published in the peer-reviewed Canadian Medical Association Journal.

Arizona

As of Monday, Arizona started accepting dispensary applications. Arizona has some of the strictest dispensary rules in the country, including requirements that a licensed physician be employed on premises, that letters be obtained showing dispensaries are complying with zoning laws, and that they have a business plan showing they are operating as nonprofits. Then there is the $5,000 application fee and the preference that will be shown to those who can prove they have $150,000 in the bank. Still, competition is expected to be fierce for the licenses, which will be capped at 125 statewide. Interested parties have until May 25 to apply.

California

Beginning Saturday, a medical marijuana "Unity" conference gets underway in Sacramento. It goes through Monday and is aimed in part at obtaining passage of Assembly Bill 2312 to regulate medical marijuana cultivation and distribution statewide. The conference is sponsored by the PAC Californians to Regulate Marijuana as well as  Americans for Safe Access (ASA), the United Food and Commercial Workers Union, California NORML, the Coalition for Cannabis Policy Reform, and the Emerald Growers Association. The conference will focus on skill-building and grass roots leadership, with a day of lobbying set for Monday.

Last Thursday, a Santa Barbara dispensary operator took a plea deal. Charles Restivo, operator of the Pacific Coast Collective between 2008 and 2010, was arrested after a four-dispensary raid by local law enforcement in February 2010. He was charged with possession of marijuana for sale and cultivation of marijuana for sale since authorities argued the dispensary was violating state laws regarding medical marijuana. Under the deal, Restivo pleaded guilty to one new count of possession of concentrated cannabis (hash) in return for the other charges being dropped. He will get three years probation.

Also last Thursday, the Clear Lake city council voted to oppose Measure D, the Lake County marijuana cultivation initiative set to go before voters June 5. The council's action follows similar votes taken by the Lake County Office of Education Board of Trustees Wednesday night, the Board of Supervisors on Tuesday and the Lakeport City Council last week. It is also opposed by the Sierra Club, the Lake County Deputy Sheriffs Association, Kelseyville Business Association, Lake County Chamber of Commerce, California Women for Agriculture, Lake County Farm Bureau, the Buckingham and Clear Lake Riviera homeowners associations, and the Lake County Association of Realtors' Board of Directors. Measure D would allow 12 female plants to be grown in residential areas on lots under a half acre, 24 plants on lots larger than a half acre and 84 plants on larger parcels.

On Tuesday, the DEA and local police raided a Fontana dispensary. The raiders hit Holistic Meds RX, detaining four people, and seizing large quantities of medical marijuana. It was a federal warrant, but town and San Bernadino County police aided the DEA. Dispensaries have opened in Fontana, but have been unable to get permits because the city considers the businesses illegal.

On Wednesday, the Los Angeles city council postponed adopting a "gentle" ban on dispensaries proposed by Councilman Jose Huizar. The move came after Councilman Paul Koretz instead proposing allowing some dispensaries to continue to operate if they agreed to city regulations. Koretz called Huizar's "gentle" ban, which would close all dispensaries, but allow personal and collective grows, in reality a "vicious, heartless" ban. The city is home to an uncertain number of dispensaries, somewhere in the hundreds.


Colorado

On Monday, 25 dispensaries targeted by federal officials had to be closed down. That was the second wave of dispensaries threatened by US Attorney John Walsh, who earlier forced 22 out of business. He says a third wave of threat letters is forthcoming. In the first wave, Walsh targeted dispensaries within 1,000 feet of schools; in the second wave, he targeted dispensaries within 1,000 feet of college campuses. No telling yet what his criteria will be next time.

On Tuesday, the Dacono city council moved forward with its ban on dispensaries, as well as grows and edibles manufacturing. The council voted 4-2 for the ban, but must do so one more time on June 11 before it takes effect. The town has had a temporary moratorium on new medical marijuana businesses since July 2010, but that edict expires on July 1. The town has three existing dispensaries, but they would be forced to close if the ban passes.

Michigan

Last Friday, the state appeals court confirmed the conviction of a man who had a medical marijuana card, but not a fence. Lewis Keller of Emmet County got busted with 15 plants on his property. Under state law, he could have 12, but it had to be fenced. Keller said he knew he was over the limit, but he didn't realize the plants had to be secured.

On Tuesday, the Jackson city council got an earful from advocates concerned about its proposed medical marijuana ordinance. Under the proposed ordinance, qualifying patients or primary caregivers who are registered by the Michigan Department of Community Health to grow marijuana could do so in their homes. Patients could consume the drug only in their homes or their primary caregivers' homes. Patients and primary caregivers also could grow medical marijuana at non-dwelling locations in certain commercial and industrial business districts.
The city has had a moratorium on medical marijuana operations during the drafting of the ordinance. The city council will revisit the issue next week.

New Hampshire

On Wednesday, the House passed a medical marijuana bill already passed by the Senate. It now goes back to the Senate for approval of changes. Gov. John Lynch (D) has vowed to veto the bill over concerns over distribution, just as he did in 2009, when a veto override failed by two votes in the Senate.

New York

On Wednesday, a Siena College poll found majority support for medical marijuana in the Empire State. The poll had 57% supporting it and only 33% opposed. A bill in the Assembly has been stalled since Gov. Andrew Cuomo (D) signaled that this was not the year for it.

Oregon

On Tuesday, Ellen Rosenblum defeated former interim US Attorney Dwight Holden in the fight for the Democratic Party nomination for state attorney general. Oregon medical marijuana activists and national drug reformers rallied against Holden and supported medical marijuana-friendly Rosenblum as she picked up 63% of the vote against the former front-runner. Activists said the vote shows opposing medical marijuana carries a political price tag.

Rhode Island

On Wednesday, the House passed compromise dispensary legislation. A similar measure has already passed the Senate, so after the formalities of concurrence votes, the measure will head to Gov. Lincoln Chafee (I), who is expected to sign it.

Washington

On Monday, the Pasco city council moved closer to banning grows. A workshop discussion that night leaves little doubt that the city will outlaw medical marijuana gardens in the city at its next meeting to avoid violating federal anti-drug laws. Pasco is among Washington cities that have been waiting for nearly a year for the legislature to act to clarify a law allowing cities to write their own rules for medical marijuana garden collectives. The council is expected to vote on the ordinance Monday.

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Medical Marijuana Ally Wins Oregon AG Race

In an Oregon primary election where medical marijuana was a prominent campaign issue, former judge and ally of the state's medical marijuana community Ellen Rosenblum came from behind to decisively defeat former interim US Attorney Dwight Holton Tuesday in the campaign for the Democratic Party's nominee for state attorney general.

Oregon Democratic Party attorney general nominee Ellen Rosenblum (ellenrosenblum.com)
Drug reformers who aided the Rosenblum campaign said as election results came in that they showed attacking medical marijuana patients and their distribution systems was "not a smart political move."

"As attorney general, I will make marijuana enforcement a low priority, and protect the rights of medical marijuana patients," Rosenblum says on her campaign website.

According to the Oregon Secretary of State's unofficial election results Tuesday evening, with 100% of the vote counted, Rosenblum had won with 63% of the vote, compared to 37% for Holton.

The winner of the Democratic Party nod is almost certain to be the next state attorney general. The Republicans didn't even field a candidate for the post, and in a primary where the Democratic attorney general race attracted more than 183,000 voters, the Republican non-race attracted fewer than 9,000 write-in votes.

Holton was an early favorite in the race and had the support of law enforcement constituencies, but aroused the ire of medical marijuana supporters for his actions as interim US Attorney last year, when he oversaw several raids against medical marijuana providers and sent out letters threatening asset forfeiture to other providers and their landlords. It didn't help when he called the the Oregon Medical Marijuana Program "a train wreck" during the campaign and pledged to work with Republican legislators to "fix" it.

The state's medical marijuana and marijuana legalization advocates mobilized to defeat Holton and encourage support for Rosenblum. But national drug reform activists, heartened by the grass roots response and emboldened by the opportunity to inflict a political price on those participating in the federal crackdown on medical marijuana distribution, mobilized as well.

Through its lobbying and campaign arm, Drug Policy Action, the Drug Policy Alliance kicked in $100,000 in donations to the Rosenblum campaign and Citizens for Sensible Law Enforcement (CSLE), which, among other things, launched a series of radio ads against Holton. CSLE is also the group behind the I-24 marijuana legalization initiative, one of two Oregon legalization initiatives edging very close to making the November ballot.

DPA ally and deep-pocketed drug reform donor John Sperling, founder of the University of Phoenix, also contributed $100,000 to the Rosenblum campaign.

DPA and Oregon medical marijuana advocates were quick to claim the election result showed there was a price to be paid for going against the drug reform tide. It was a message they wanted both prosecutors and the Obama administration to hear.

"Dwight Holton’s defeat in the Oregon Attorney General’s race should be taken as a clear and unambiguous message to US Attorneys around the country and to the national Democratic leadership that attacking state-approved medical marijuana programs is not a smart political move," said Jill Harris, managing director of strategic initiatives for Drug Policy Action, and a native of Eugene.

"Medical marijuana has overwhelming public support -- it is now legal in 16 US states and the District of Columbia, and national polls have consistently shown support in the 70-80% range for well over a decade. Drug war rhetoric and tactics will not be tolerated, and organizations like Drug Policy Action will be there to defend patients’ rights to safely access the medicine they need," she said in a Tuesday night statement.

No Oregon groups have yet released any statements, but there was much joy on their list serves Tuesday night. "I hope that law enforcement is paying attention as well," said one poster. "As this just goes to show that Oregon is sick of them wasting their resources on marijuana."

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

OR
United States

Colorado Drugged Driving Bill Dies -- Again

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

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

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

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

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

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

Denver, CO
United States

Drug Sentencing Reform Bill Passes in Kansas

A bill that would ease penalties on some small-time drug offenders has been approved by the Kansas legislature and awaits the governor's signature. The bill, House Bill 2318, won final approval in the House Monday on a 94-23 vote.

Kansas state capitol, Topeka (wikimedia.org)
The bill would give judges more discretion when sentencing drug offenders for small-time possession or dealing to support their own habits, if they have no more than a single prior conviction on their record.

Under the current Kansas sentencing scheme, drug offenses are determined by a sentencing grid, and drug possession and small-time dealing offenses are considered "presumptively prison" sentences. That means judges currently have to state specific findings if they want to depart downward from the grid by handing out a lesser sentence.

The bill creates a "border box" on the grid, which would allow judges to order drug treatment or a lesser sentence without having to formally justify such a decision.

The bill also creates harsher penalties for big-time drug manufacturing or sales, but legislators said those big cases are more likely to be prosecuted by federal authorities.

Kansas has been wrestling with ways of reducing its prison population in recent years, and passage of this bill is another move in that direction.

Topeka, KS
United States

Oklahoma Governor Signs Prison Reform Bill

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

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

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

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

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

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

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

The new law goes into effect November 1.

Oklahoma City, OK
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

Medical Marijuana Update

The national battle over medical marijuana is heating up, Connecticut is about to become the 17th medical marijuana state, and state and local battles continue. And so do the DEA raids. Busy, busy, busy. Let's get to it:

National

Last Wednesday, House Minority Leader Nancy Pelosi criticized the federal crackdown on medical marijuana. Listening to her home town constituents, the San Francisco representative called on the administration to back off from the raids and prosecutions. In doing so, she joined the San Francisco and Alameda County Democratic Party organizations, and various state and local elected officials.

Last Saturday, 34 groups opposing medical marijuana sent a letter to President Obama urging him to "continue to enforce federal drug laws in states that allow 'medical marijuana.'" The effort was organized by the Community Anti-Drug Coalitions of America and the signees were mostly law enforcement, treatment industry, and community anti-drug groups.

This week, drug reform and medical marijuana advocacy groups mobilized in support of an amendment to the Justice Department appropriations bill that would cut funding for the agency's offensive against medical marijuana. The amendment failed on a voice vote Wednesday night.

California

Last Tuesday, the Milpitas city council voted to reaffirm its ban on dispensaries. City leaders had been considering allowing them in order to create tax revenues, but decided to hold off pending clarification of state laws by the Supreme Court.

Also last Tuesday, Yuba County adopted a medical marijuana nuisance ordinance on a 4-1 vote by the board of supervisors. The ordinance creates limits on how big a space people with valid medical marijuana cards could use to grow plants, depending on the size of the parcel. Earlier, there were loud objections about the 100 square foot limit on grows on parcels of less than an acre. Growers are threatening a lawsuit.

Last Wednesday, the DEA raided a Santa Barbara dispensary. The raiders hit Pacific Coast Collective, but no arrests were made. A sign posted on the door that same day read: "Due to a raid by the federal government, we will be closed until further notice. We are sorry for any inconvenience this has caused."

Also last Wednesday, the LAPD raided an Eagle Rock dispensary. The American Eagle Collective was hit and police on the scene said it would be permanently shut down. The collective is one of more than two dozen that are being sued by the city of Los Angeles for allegedly violating city zoning laws. Two other Eagle Rock dispensaries have been sued for operating within 600 feet of a school. The city plans to seek a preliminary injunction against American Eagle on May 31.

Last Thursday, the DEA and local police hit a medical marijuana grow in Santa Barbara. It was part of a declared war on dispensaries in the county by federal prosecutors. "All known marijuana stores in Santa Barbara County are now the subject of federal enforcement actions," according to a statement from the US Attorney's Office. The feds also filed three asset forfeiture lawsuits, two against dispensaries and one against the grow up.

Last Friday, the DEA raided a Glendora dispensary. The raiders hit the Glendora Healing Clinic and arrested two customers on outstanding warrants. Agents seized money and marijuana, but did not arrest the operators. The dispensary had only been open a few weeks.

Also last Friday, Vallejo police raided their fifth dispensary since February. They hit Nature's Love and arrested at least one person. The identity of the man taken into custody Friday, and if anything was seized from the dispensary was not immediately known.

On Tuesday, protestors picketed the Garden Grove city council over the city's recent talks with federal authorities about helping them crack down on dispensaries. They also gave council members an earful once the meeting got underway.

Also on Tuesday, Tulare County amended its code enforcement measures for medical grows. Now, for the first time, the county can use administrative code enforcement proceedings that could lead to a series of penalties that include $100-a-day fines for each violation of the county's medical marijuana ordinance.The ordinance specifies where medical marijuana can be grown and distributed, along with other requirements, which include requiring the plants be grown in enclosed buildings with security.

Also on Tuesday, the Palm Springs city council approved a fourth dispensary. Three permitted dispensaries already operate in the city, as do at least a half dozen unlicensed ones, clustered in an area known as "Little Amsterdam."

Also on Tuesday, Nevada County approved marijuana cultivation ordinances on a 4-1 vote of the board of supervisors. The ordinances limit cultivation to 100 square feet in parcels smaller than two acres, 300 square feet in parcels smaller than five acres, 400 square feet in parcels less than 10 acres, and 600 square feet in parcels smaller than 20 acres. Unhappy residents shouted that supervisors should be voted out, and growers are threatening a lawsuit over the restrictions.

Also on Tuesday, the Vallejo city council retreated from plans to regulate dispensaries. They cited uncertainty under state law and fears of federal prosecution if they regulate. Residents accused the council of cowardice, but the council was not swayed. 

Also on Tuesday, Lake County came out against a June ballot measure that would give "right to farm" privileges to medical marijuana growers. The board of supervisors voted to oppose Measure D, which would also allow medical pot growers to cultivate up to 12 mature plants in residential backyards of less than a half acre outside of city limits in Lake County. More plants could be grown on larger parcels, with a maximum of 84 plants allowed on properties that are seven acres or more. The ballot measure is opposed by county and police officials, the local Sierra Club, the Chamber of Commerce and state and local farm bureaus. Opponents say it will lower property values and increase pot-related crime.

Colorado

On Monday, a Denver attorney reported she had lost her liability insurance because part of her practice involves representing medical-marijuana businesses. Ann Toney's insurance company, Hanover Insurance Group, explained that her practice "does not meet current underwriting guidelines because of the following risk factors: Area of practice involving medical marijuana." This is believed to be the first time in the nation an attorney has lost her insurance because of doing medical marijuana-related work.

Also on Monday, 25 more dispensaries were ordered to close by federal prosecutors. All of the targeted dispensaries are within 1,000 feet of schools, which does not violate Colorado law, but which federal prosecutors are using as an arbitrary benchmark for targeting them.

On Wednesday, the state legislature adjourned without passing a drugged driving bill that would have criminalized drivers solely on the basis of having five nanograms or more of THC per milliliter of blood in their systems. The bill had passed the Senate, but didn't get a floor vote in the House.

Connecticut

Last Saturday, the state Senate approved a medical marijuana bill. The measure had already passed the House, and Gov. Dan Malloy (D) has already said he will sign it. Connecticut will become the 17th medical marijuana state.

Iowa

On Sunday, news came that three out of four state Democratic district platforms support medical marijuana.

Michigan

Last Thursday, the House passed a package of four medical marijuana bills that advocates don't think very much of. The Marijuana Policy Project said it is "opposed to the package because of concerns that the bills would compromise patients’ privacy and subject medical marijuana to more onerous restrictions than those that apply to more dangerous prescribed narcotics." It is urging supporters to voice their objections to House bills 4834, 4851, and 4856.

Montana

On Monday, advocates suing to repeal Montana's restrictive medical marijuana law said they need more donations to continue. The Montana Cannabis Industry Association said the case has cost about $150,000 and it needs another $100,000 to take the case to the state Supreme Court.

Also on Monday, the number of medical marijuana patients had dropped below 11,000, continuing a steep decline since the number of card-holders peaked at more than 31,000 at the end of last May. The number of providers has also declined by more than 90%, to slightly more than 400. This in the wake of a federal crackdown and the state legislature passing very restrictive legislation.

Rhode Island

On Wednesday, the state Senate approved a compromise dispensary bill. It would restrict dispensaries to 1,500 ounces of usable marijuana at one time and limit cultivation to 150 plants. Patients and caregivers would be able to sell their excess to the dispensaries. The bill now must be approved by the House. Dispensaries had been stalled after Gov. Lincoln Chafee (I) quailed in the face of federal threats; this compromise legislation should assuage his worries.

Wisconsin

Late last month, the Wisconsin Medical Society voted to adopt a new position on medical marijuana. It calls for further controlled studies on medical marijuana and a review of the plant's Schedule I status.

Charlottesville Says Decriminalize or Regulate Marijuana

The Charlottesville, Virginia, city council approved a marijuana-related resolution Monday night calling on the governor and the legislature "to revisit the sentencing guidelines that merit jail terms for simple possession, do away with rules that suppose intent to distribute without evidence and give due consideration to sponsored state bills that would decriminalize, legalize or regulate marijuana like alcohol."

Charlottesville City Council (City of Charlotteville)
[Editor's Note: To find the actual resolution, click on the link above, select "May 7, 2012 (with background)," then scroll to the very end of the PDF file.]

Under current law, possession of marijuana is classified as a misdemeanor carrying punishment of up to 30 days in jail and/or fines of up to $500. Subsequent convictions carry a jail sentence of up to a year and/or fines of up to $2,500.

The council had been presented with two resolutions, the version that passed and one that also included language making marijuana possession the lowest law enforcement priority, but councilors balked at the lowest priority language, saying they feared it would send the wrong message to children. Two of the five-member council supported the lowest priority language, but they dropped that in order to pick up a third vote on the decriminalization and regulation language.

"I think it's perfectly legitimate for us to say as an elected body that there are other priorities and that we're going the wrong direction when it comes to the war on drugs," said Councilor Dave Norris in remarks reported by the Charlottesville Daily Progress.

"Obviously, we don't have the power to decriminalize marijuana, but I think it does send the message actually in support of those who can," said Councilor Dede Smith.

"I think that decriminalization has more to with regulation and control than it does with saying it's okay," said Councilor Kristin Szakos, the swing vote who suggested the one-paragraph compromise.

Two council members, Mayor Satyendra Huja and Councilor Kathy Galvin, voted against any reform resolution.

"I think passing such a resolution... would detract from community health, safety and welfare of our citizens," said Huja.

"I honestly cannot think that this bully pulpit can be used to send such mixed messages to our children," said Galvin. "We are spending a lot of time talking about state and federal law. This is not something we should be spending local time doing."

City police lobbied against the lowest priority language, saying that marijuana possession is already a low priority, accounting for only about 100 arrests a year out of the 5,000 made by police, and that many of those busts were incident to arrest on other charges.

"The officers in the police department are duty bound to enforce the laws of the city, state and federal governments. However, all police departments must balance the pressing enforcement needs of a community with their resources," read a memo to councilors from City Manager Maurice Jones and city Police Chief Timothy Longo. "The Charlottesville Police Department has done exactly that by utilizing its funding to appropriately address higher priority crimes in our city than marijuana possession. Knowing this, staff believes it is unnecessary to include a directive from council to de-prioritize the enforcement of personal marijuana use."

Public comment at the meeting was mixed, with the first six speakers opposing the resolution. Some referred to their own struggles with addiction, while others described it as an insidious drug that robs addicts of true happiness.

"Charlottesville will become the city of potheads," warned city resident Melanie Roberts.

But local attorney Jeff Fogel supported the resolutions, including the lowest priority language, and called the war on drugs "a colossal failure" that led to violence. "I don't think we elected the police department to make policy or law in this community," Fogel said. "And you know what, I'm not sure the police department does either."

The resolution was citizen-initiated, brought to the council by Jordan McNeish. Formerly involved with Occupy Charlotte, the 23-year-old activist has since founded a local NORML chapter. He said he had been busted for pot possession in the past.

Charlottesville is now on the record for marijuana reform. Where are Norfolk and Newport News, Roanoke and Richmond?

Charlottesville, VA
United States

Connecticut Bill to Strengthen Racial Profiling Ban Passes

The Connecticut House Monday passed a bill to strengthen the state's 12-year-old racial profiling reporting, which some senators said was not being followed by police. The bill, Senate Bill 364, passed the Senate last month. Gov. Dannel Malloy (D) said in statement Monday he would sign it into law.

]"More than 10 years ago, as the mayor of Stamford, I was proud to stand with the men and women of the Stamford Police Department on Martin Luther King Day to announce that we did not tolerate racial profiling and would lead the efforts to ensure its elimination. As governor, I will continue to insist that every effort is taken to protect individual rights in every community and that racial profiling is eliminated," Malloy said. "This is a real problem that deserves a real solution, and my administration is committed to carrying out the spirit and letter of this law. I look forward to signing the bill when it arrives at my desk."

The original racial profiling law was pushed by then-Senator Alvin Penn, who spoke out loudly against the practice. Penn said he himself had been stopped by police for no reason except for his skin color. Penn died of pancreatic cancer in 2003.

That law required police departments to report on each traffic stop, noting the driver's race and the reason for the stop. In the first six months the law was in effect, police wrote 315,000 reports, and a 2001 study of those reports found that blacks accounted for only 8% of the state's population, but 12% of the traffic stops.

Still, the state's top prosecutor said at the time that the numbers did not suggest racial profiling.

"We did not find a pattern of racial profiling,'' said then Chief State's Attorney John M. Bailey. "Minority drivers do not appear to be treated systematically any different than non-minority drivers.''

In the decade since then, the issue has quietly festered while police departments quietly quit reporting. According to Senate Democrats, only 27 of the state's 92 police departments are complying with the law.

Last month, the head of the Connecticut Police Chiefs Association, Douglas Fuchs, told the Hartford Courant that most departments were complying with the law. He added that racial profiling data does not "accurately portray how Connecticut law enforcement across the state conducts business,'' although he did not explain why not.

But former state Rep. Michael Lawlor, who is now Gov. Malloy's (D) chief criminal justice advisor, disagreed. "The fact of racial profiling is very real. Almost every African-American has a story like that [of profiling], and very few white people do. It's real.''

Senate President Pro Tem Donald Williams (D) also disagreed, saying, "Racial profiling is a problem in Connecticut and throughout the United States… It's time to strengthen' the law."

Malloy said his administration hadn't waited for the law to pass to start working on its provisions.

"Our administration has already begun taking some of the steps required under the legislation," he said. "Last year, I instructed the Office of Policy and Management, with the help of Central Connecticut State University, to create the advisory group called for in the bill, and they have begun to develop standardized methods and guidelines to improve collection of racial profiling data."

Hartford, CT
United States

Connecticut to Become 17th Medical Marijuana State

The Connecticut Senate gave final approval to a medical marijuana bill early Saturday morning, and Gov. Dannel Malloy (D) said in a statement later that same day that he will sign it. The bill, House Bill 5389, passed the House last week.

Connecticut State House, Hartford (wikimedia.org)
Medical marijuana is already legal in 16 states and the District of Columbia.

The middle-of-the-night final vote came only after medical marijuana foe Sen. Toni Boucher (R-Wilton) filibustered for most of the 10 hours of debate. She fruitlessly introduced various amendments in a bid to derail it, but none of them passed.

Boucher mixed statistics and stories as she argued that marijuana isn't medicine, that illegal use among youth would expand, that licensed dispensaries are "little more than dope dealers with licenses," and that federal non-recognition of medical marijuana could expose anyone involved in it to civil or criminal liability. But hers was a decidedly minority view.

"We can probably find a study that will contradict every single study Senator Boucher has cited this evening," said Sen. Eric Coleman (D-Bloomfield) co-chairman of the Judiciary Committee.

The tightly crafted bill would allow patients with specified diseases and conditions to obtain a written certification from a physician allowing them to use medical marijuana. The marijuana would be grown indoors at one of no more than 10 licensed grows and sold at one of no more than 10 licensed dispensaries. It will be sold by specially trained pharmacists, who must be on staff at the dispensaries.

Gov. Malloy, whose office helped craft the law, said it was designed to avoid conflict with the federal government, which has been cracking down on medical marijuana distribution in states where it is more loosely regulated.

"We don't want Connecticut to follow the path pursued by some other states, which essentially would legalize marijuana for anyone willing to find the right doctor and get the right prescription. In my opinion, such efforts run counter to federal law. Under this proposal, however, the Department of Consumer Protection will be able to carefully regulate and monitor the medicinal use of this drug in order to avoid the problems encountered in some other states," he said in the Saturday statement.

"This legislation is about accomplishing one objective: providing relief to those with severe medical illnesses. I look forward to signing the bill when it reaches my desk."

Hartford, CT
United States

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