Federal Courts

RSS Feed for this category

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.

https://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

Medical Marijuana Rescheduling Lawsuit Moving

A decade after the Coalition for Rescheduling Cannabis (CRC) filed its petition seeking to have marijuana moved from Schedule I of the Controlled Substances Act, the federal courts will finally review the scientific evidence regarding the therapeutic efficacy of marijuana. The DC Circuit Court of Appeals announced late last week that it will hear oral arguments in October in a lawsuit filed by Americans for Safe Access (ASA) to force the government to act.

The lawsuit, Americans for Safe Access vs. DEA, was filed in January after the DEA denied the CRC's rescheduling petition the previous July. The DEA took nine years to decide to do nothing about rescheduling marijuana.

Under the Controlled Substances Act, Schedule I is reserved for drugs that "have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision."

Patient advocates charge the DEA and other federal agencies have ignored an increasing mountain of evidence on marijuana's therapeutic efficacy and that marijuana is "currently accepted [for] medical use in treatment" in 17 states and the District of Columbia. They also charge that the rescheduling process for marijuana has been "encumbered by politics" and that federal agencies are throwing roadblocks in the way of scientific research on medical marijuana.

"Medical marijuana patients are finally getting their day in court," said ASA chief counsel Joe Elford. "This is a rare opportunity for patients to confront politically motivated decision-making with scientific evidence of marijuana's medical efficacy. What's at stake in this case is nothing less than our country's scientific integrity and the imminent needs of millions of patients."

Oral arguments will take place Tuesday, October 16, at 9:30am at the E. Barrett Prettyman US Courthouse in downtown Washington.

Washington, DC
United States

Medical Marijuana Update

Harborside fights for its life, LA bans dispensaries, and Oregon transplant hospitals are lightening up on medical marijuana patients. Those are the big stories this week, but there's plenty more, too:

Arizona

Last Friday, Arizona public health officials refused to add several new disorders to the list of those that may be treated by medical marijuana. Patient advocates had petitioned to PTSD, anxiety, depression, and migraines to the list of approved illnesses and conditions, but state officials said there was not sufficient evidence to add them.

California

Last Tuesday, the Delmar City Council voted to put an initiative to legalize dispensaries on the November ballot. The city attorney said the initiative was so flawed it should be kept off the ballot, but the council said its hands were tied after supporters collected more than enough signatures to move it forward. The initiative is identical to proposals put forth in Solana Beach and Encinitas, along with the East San Diego County cities of Lemon Grove and La Mesa. Citizens for Patient Rights, a San Diego-based political committee working with the nonprofit Patient Care Association, collected 961 signatures in Del Mar, more than three times the 303 valid signatures that were needed to force an election. The city clerk's office said 554 signatures were deemed invalid. Under the proposal, dispensaries could not open within 600 feet of a school or playground and would have to be at least 1,000 feet from one another. Del Mar would collect a 2.5 percent tax on all marijuana sales, with the cash going into the general fund for day-to-day operations of the city. The city council action came the same day the US Attorney's Office in San Diego released a statement threatening city employees that they "are not immune from liability under the Controlled Substances Act." The feds have taken enforcement action against scores of dispensaries in San Diego and Imperial counties, and more than 200 have since closed.

Last Wednesday, Trinity County planners made their recommendations for regulating large grows in the county. Previous recommendations had relied on a permit system, but this time planners are recommending a mandatory registration scheme. Under the plan, growers who comply with 31 standards, register their operations and submit to inspection would be immune from county code enforcement actions. County planners moved away from the permit plan out of fears it could potentially place the county in conflict with federal law against controlled substances. The Planning Commission’s aggregate grow recommendations would limit collective marijuana farms to 30-acre parcels or greater with a resource or agricultural land use designation in the county’s general plan. More than 1,200 parcels of land in the county meet that criteria.Operations would also be subject to a 500-foot setback from any parcel boundary, or 500 feet from any neighboring residence if the grow is on a larger parcel. Garden size would be limited to a maximum of 99 plants in an area not to exceed 2,500 square feet whether it is indoors or outside.

Last Thursday, Harborside Health vowed to stay open and fight federal asset forfeiture claims. Harborside, the largest dispensary in the state has been hit with forfeiture claims against its building in Oakland and its location in San Jose. The federal government can seize property under current drug laws if the property is used in the distribution of a drug--in this case, federally illegal cannabis. "Harborside has nothing to hide, we have nothing to be ashamed of and we have no intention of closing our doors," said Harborside CEO Steve DeAngelo. "We shall continue to provide our patients with medicine. We will contest the [US Department of Justice] openly, in public and through all means at our disposal. We look forward to our day in court. We will never abandon our patients." State and local elected officials and US Rep. Barbara Lee (D) stood with him in support.

Also last Thursday, a Shasta County judge upheld the town of Anderson's ban on collectives and set a December trial date for the Green Heart Collective's lawsuit challenging the ban. The city has won a preliminary injunction halting sales of medical marijuana at the collective based on recent California court decisions.

Also last Thursday, Lake County authorities arrested two men for violating a disputed 10-day old emergency ordinance aimed at restricting medical marijuana grows. The two men were growing on unoccupied land, but the regulations adopted by the county prohibit grows on properties without residential structures. Three other growers at different sites who were also out of compliance with the new rules were given warnings. Those three growers each had in excess of 80 plants, while county rules stipulate a maximum of 48.

Also last Thursday, the Dunsmuir City Council approved an initiative for the November ballot that would loosen the city's growing rules. Petitions were circulated by Leslie Wilde, owner of Dunsmuir's sole dispensary, who started work on the initiative after the council passed a strict growing ordinance in August. The measure would remove canopy area limits for qualified patients, remove limits on qualified patients growing on any parcel, allow growers to cultivate on property other than where their homes area, and allow publicly-visible grows, grows in garages, grows in the city's historic district, and grows near youth-oriented activities. The current rules restrict or prohibit those activities.

On Monday, hundreds of protestors gathered in Oakland to greet President Obama and demand he rein in the federal crackdown on medical marijuana providers and the patients they serve. The march was preceded by a press conference featuring patients, Oaksterdam founder Richard Lee and his successor Dale Sky Jones, Harborside CEO Steve De Angelo, and Libertarian Party vice-presidential candidate Judge Jim Gray, among others.

On Tuesday, the Los Angeles City Council voted to ban all dispensaries. Under the ban, all of the 762 dispensaries registered in the city will be sent letters ordering them to shut down immediately. Those that don't comply may face legal action from the city. Medical marijuana activists erupted in jeers after the decision, and police officers were called into the council chambers to quell them. Some activists threatened to sue. Others vowed to draft a ballot initiative to overturn the ban. The new ordinance will allow patients and their caregivers to grow and share marijuana in groups of three people or fewer. But activists complain that few patients have the time or skills for that, with one dispensary owner saying it costs at least $5,000 to grow the plant at home. But the council also voted to instruct city staff to draw up a separate ordinance that would allow dozens of dispensaries  to remain open. Officials said that proposal, which would grant immunity to shops that existed before a 2007 moratorium on new dispensaries, could be back to the council for consideration in three months.

Also on Tuesday, Rep. Tom Ammiano vowed to push ahead with his bill establish statewide regulations on growing, transporting and selling medical pot. The San Francisco Democrat said he was refining Assembly Bill 2312 and would reintroduce it next year. The bill would create a state board to enact and enforce statewide regulations on medical marijuana, require all dispensaries to register with the state and allow cities and counties to tax sales. Medical marijuana advocates have called on the state to clarify the gray legal areas that continue to plague the state's voter-approved program.

Also on Tuesday, federal medical marijuana prisoner Bryan Epis got his sentence reduced. US District Court Judge Garland Burrell reduced his sentence from 120 months to 90 months, meaning Epis, who is currently serving his sentence at the Terminal Island federal penitientiary, will get out next year instead of 2013. Epis has been serving a 10-year mandatory minimum for allegedly conspiring to grow over 1,000 plants for a medical cannabis collective, though in fact he never grew 1,000 plants and was convicted on evidence misrepresented by the US attorney. The court ignored defense claims of prosecutorial misconduct by US Attorney Samuel Wong, but ruled that he had received inadequate defense counsel instead.

On Wednesday, San Diego-area activists vowed to challenge the federal asset forfeiture threat against the Mother Earth Collective in El Cajon. Dispensary owners, patients, and advocates gathered at the federal courthouse in San Diego and vowed to "go to the Supreme Court" if necessary. But they needed a temporary restraining order by this week to avoid Mother Earth having to close its doors, leaving 13 employees out of a job and 2,300 patients without a provider.

Oregon

Last week, the two hospitals that do organ transplants in the state eased restrictions on medical marijuana use among patients seeking organs. OHSU Hospital and the Portland VA Medical Center have revisited longstanding policy that required six months of negative drug screens and even the possibility of drug rehabilitation for marijuana users before patients could be wait-listed for a liver transplant. The revised policy allows marijuana users who meet all other criteria to be wait-listed for liver transplants if a single screen turns up negative. It's a step in the right direction.

On Tuesday, demonstrators gathered in Portland to protest the federal crackdown as President Obama came to town on a fundraising trip. He was hit by similar protests in Oakland a day earlier.

Medical Marijuana Update

The federal crackdown on medical marijuana continues in California, the first plants are now being grown in New Jersey, and there's lot's more medical marijuana news, too. Let's get to it:

National

Last Tuesday, the US Department of Agriculture warned states that they cannot allow food stamp applicants to deduct the cost of medical marijuana expenses. The department acted after Portland's Oregonian newspaper surveyed medical marijuana states and found three -- Oregon, New Mexico, and Maine -- that allowed the deduction. Now, all three will have to stop.

On Tuesday, Rep. Sam Farr (D-CA) introduced the Truth in Trials Act, which would allow medical marijuana patients and providers facing federal criminal prosecution to present evidence that they were in compliance with state medical marijuana laws. The bipartisan bill has 18 cosponsors, including Reps. Barney Frank (D-MA) and Ron Paul (R-TX).

California

Last Wednesday, the DEA raided a Venice dispensary. The feds hit the Pacific Collective. The warrant remains under seal, so no further information is available, but it was the first federal action against Venice dispensaries since the state's US Attorneys announced a crackdown last fall.

Also last Wednesday, the Palm Springs City Council approved an urgency ordinance requiring city-approved dispensaries to visibly post that they are operating legally. While the city has numerous dispensaries, only three are legally approved by it. The ordinance also establishes an abatement process and fine program for dispensaries that do not comply with city mandates.

Last Thursday, Oakland officials ripped federal prosecutors for targeting the Harborside Health Center for closure. With 100,000 patients, Harborside is the world's largest dispensary. US Attorney for Northern California Melinda Haag filed asset forfeiture lawsuits against Harborside's two locations. The other one is in San Jose. At an early morning press conference, city and state officials lambasted the feds.The uproar will continue Monday, when President Obama visits the city. Protests are being planned now.

Also last Thursday, the former mayor and one-time city manager of Cudahy agreed to plead guilty to bribery charges for taking money to support the opening of a dispensary. Ex-Mayor David Silva and former City Manager Angel Perales will each plead guilty to one count of bribery and extortion. They solicited and received a $1,700 bribe from the would-be operator. Then they took $15,000 offered to them by a former dispensary operator turned FBI informant. They each face up to 30 years in prison.

On Monday, a Clovis dispensary operator was hit with federal money-laundering charges. Mark Bagdasarian owned the Buds 4 Life dispensaries in Tarpey Village and Friant. He already faced federal marijuana possession and distribution charges from an indictment filed last October, but now the feds have updated the indictment to include money laundering. They accuse Bagdasarian of laundering money through ATMs at his dispensaries.

Also on Monday, the San Leandro City Council moved to begin regulating dispensaries. The move came against the advice of city staff, who recommended a ban within city limits. Instead, the council directed staff to start work on regulating where and how such facilities could be located. The issue now moves to the council's rules committee, which will start work with city staff to determine how to begin the process of creating zoning and permitting rules.

On Tuesday, a dispensary sued the city of Victorville over its recently-passed ordinance banning dispensaries. High Desert Herbal Therapy opened in September and was cited for a city code violation and fined $400 in May for operating without a permit. The dispensary says the city refused to issue a permit and its ordinance conflicts with state law. It will seek a temporary restraining order next week.

Also on Tuesday, Lake County supervisors voted to disband the Medical Marijuana Cultivation Ordinance Advisory Board. The move followed the adoption of a 45-day urgency cultivation ordinance at a special BOS meeting July 9 and the filing of a request for a temporary restraining order and injunction against Sheriff Frank Rivero and the County of Lake last Thursday by an attorney on behalf of Don Merrill, who was a member of the committee.

Also on Tuesday, the DEA raided a Lake Elsinore dispensary for the second time in three months. The feds hit the Compassionate Patients Association and seized marijuana, but not cash or paperwork. The collective was first raided in April. Now, the new owner says she doesn't know if she will reopen.

Also on Tuesday,  the Lemon Grove City Council voted to study regulating dispensaries. The council ordered city staff to prepare a report on the legal, financial, economic, and land use impacts dispensaries would have on the town. The council acted after Citizens for Patient Rights gathered enough voter signatures to put the issue to a vote if the council fails to act. The council also voted to have a subcommittee look into placing a competing measure on the same ballot that might include a ban on medical marijuana dispensaries.

As of month's end, the number of dispensaries in San Francisco will be at a 10-year low. The announced July 31 closures of HopeNet and the Vapor Room under federal threat will bring the number of dispensaries to fewer than 20. A year ago, there were 26 licensed dispensaries operating in San Francisco. US Attorney Melinda Haag's office has shut down six to date. A seventh dispensary was put out of commission by a house fire. There were as many as 40 dispensaries in the city in 2005, but the municipal Medical Cannabis Act limited the areas in which they could do business, leading some to close.

Michigan

Last Tuesday, a medical marijuana initiative campaign conceded it wouldn't make the ballot. The Committee for a Safer Michigan said it had collected only about 50,000 signatures while it needed 322,609 valid ones. The group is pledging to return in 2014.

Last Wednesday, Kalamazoo officials confirmed a dispensary initiative will be on the ballot this fall. Initiative backers had met the signature requirements, but city officials had concerns that medical marijuana court decisions in the state might affect its legal viability. Now, they are prepared to let the vote go forward.

Last Thursday, a medical marijuana rally was canceled because of a cease and desist order from Hayes Township, where it was to have been held. Donnie and Billie Jo Hogan, owners of the Mid-Michigan Caregiver's Club in Harrison, had planned the rally as a protest after being arrested for selling marijuana last month. But Hayes Township said it sought the order because the Hogan's didn’t have permits for food and camping. The Hogans canceled the rally on their attorney's advice.

Montana

Last Friday, a medical marijuana grower and provider was sentenced to seven years in federal prison in one of the harshest sentences yet related to last year's federal raids of large Montana medical pot operations. Christopher Ryan Durbin pleaded guilty in March to charges of conspiracy to manufacture and distribute marijuana and structuring or making bank deposits of less than $10,000 to avoid IRS reporting requirements. Durbin owned and operated several medical marijuana businesses in the Columbia Falls area and was in charge of the distribution network.

New Jersey

On Monday, Assemblyman Reed Gusciora called for hearings on delays in the state's medical marijuana program. The Trenton Democrat was one of the sponsors of the law, and he says the state's administration should explain the delays, but a schedule for his proposed hearings hasn't been announced. The state planned to have dispensaries open by July 2011. But the first one to operate legally now won't open until at least late August.

On Wednesday, the Greenleaf Compassion Center revealed it had been growing medical marijuana for the past few weeks. That marks the first time in decades that marijuana has been grown legally in the state. The first plants are about a foot high and the center's Montclair dispensary should be open and accepting patients by mid-September, said center president Joseph Stevens.

Washington

Last Tuesday, the Leavenworth City Council voted to ban collective gardens and dispensaries. The 5-2 vote confirmed a moratorium  enacted in June after a collective garden opened in the city. Leavenworth Mayor Cheri Kelley Farivar said the city worried about liability, legality, zoning and public safety.

On Monday, the Shoreline City Council voted to approve regulations for collective gardens. It passed an ordinance providing for the adoption of  permanent development code regulations for medical marijuana collective gardens. The 6-1 vote was met with cheers from a packed chamber.

Georgia Governor Puts Welfare Drug Testing on Hold

Georgia's new welfare drug testing law was supposed to go into effect July 1, but that didn't happen. According to a spokesman for Gov. Nathan Deal (R), the governor still supports the law, but will hold off on implementation until a legal challenge against a similar bill next door in Florida is resolved.

The Florida law took effect last July, but was blocked by a federal judge in October. That case is expected to go before the 11th US Circuit Court of Appeals.

Civil rights and civil liberties groups in Georgia said when the law was passed they would challenge it as soon as it is implemented. But they may not have to if the court, which has jurisdiction in Alabama, Florida, and Georgia, strikes down the Florida law.

The federal courts have generally taken a dim view of random, suspicionless drug testing. They consider drug testing a search under the meaning of the Fourth Amendment and have carved out only limited exceptions to the general prohibition against warrantless drug testing. Those exceptions include public safety-sensitive positions (airline pilots, truck drivers), law enforcement personnel engaged in anti-drug work, and high school students involved in athletics or extracurricular activities.

"The governor feels confident that the law in Florida, and therefore in Georgia, will be upheld," spokesman Brian Robinson told the Associated Press. "We plan to move forward on this as soon as we can, but we're willing to wait a little bit longer on the federal courts. There's just no need in us hopping in."

Under the Georgia law, the state Department of Human Services is mandated to create a drug testing program for welfare applicants at their own expense. Those who pass the test would be reimbursed, but those who don't would not only not be reimbursed, they would be ineligible to receive benefits for one month. A second positive test would result in a three-month ban, while a third positive test would result in one year of ineligibility.

Any applicant who fails a drug test must first pass another drug test before benefits would be reinstated. The department would have to provide people who fail the drug test with a list of drug treatment providers, but the state would not pay for drug treatment for them.

Sen. Vincent Fort (D-Atlanta) told the AP Deal should have voiced his concerns about the law when it was being debated.

"During the debate, we talked about the viability of the law based on the Florida case," said Fort, who opposed the measure and was among the parties vowing legal action against the law. "It would've been appropriate for him at that time to have injected that point, but he's waiting until after he signed it, until it's about to be implemented. He chose not to say anything about it."

Ford said that if the law is upheld, it would set a dangerous precedent.

"The question is, if you're poor and need assistance, do you forfeit your constitutional rights or not?" he said. "I think that's dangerous. If it's poor people today, it could be other people tomorrow."

Atlanta, GA
United States

Supreme Court Grants Lesser Sentences in "Pipeline" Crack Cocaine Cases

The US Supreme Court ruled last Thursday that decreased crack cocaine sentences approved by Congress in 2010 also apply to people who were convicted but not yet sentenced when the law took effect. The decision could result in reduced sentences for thousands of so-called "pipeline" federal crack cocaine defendants.

Congress passed the Fair Sentencing Act and President Obama signed it into law after years of complaints about the sentencing disparities between crack and powder cocaine and the racial impact of those disparities. Under laws passed in the late 1980s, it took 100 times as much powder cocaine to generate mandatory minimum prison sentences as it did for crack cocaine. The act reduced the quantity disparity to 18:1.

The decision in two cases of men convicted on federal crack charges but sentenced after the act became law came on a narrow 5-4 vote. The two cases were consolidated in a single ruling in Dorsey v. United States.

In one case, Edward Dorsey was arrested in 2008 and pleaded guilty in July 2010 to possessing 5.5 grams of crack with the intent to distribute. He was sentenced to a mandatory minimum 10 years; under the new law, his sentence would likely have been around four years.

In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack in 2007 and sentenced to 10 years in prison; under the new law, his sentence would have been around five years.

Federal appeals court split on whether the new law should be applied retroactively, prodding the Supreme Court to take up the cases and bring clarity to the issue.

The court split in what has become almost standard for the Roberts court. All four liberal justices weighed in on the side of extending the sentencing reductions and were joined by swing justice Anthony Kennedy. The court's four staunch conservatives all dissented.

Sentencing reform advocates welcomed the ruling.

"We are thrilled with the court's decision," said Julie Stewart, executive director of Families Against Mandatory Minimums, which had filed a friend of the court brief in the case. "We considered it patently unjust to make these pipeline defendants serve longer sentences under a scheme that was completely repudiated by Congress. As the court found, doing so would have flouted the will of Congress, which called on the US Sentencing Commission to lower crack cocaine sentences 'as soon as practicable' after the Fair Sentencing Act was signed into law. Especially exciting is the fact that Justice Breyer's opinion for the majority recognized that people who were sentenced after August 3, 2010 to an old law sentence are eligible to seek relief in federal courts."

Washington, DC
United States

Federal Appeals Court Rejects Job Corps Worker Drug Tests

A federal appeals court ruled last Friday that a random, suspicionless drug testing program for workers at Job Corps centers is unconstitutional. In a 2-1 decision, the US Circuit Court of Appeals for the District of Columbia held that the US Forest Service, which operates those Job Corps camps, did not demonstrate that drug use among staff or clients was such as problem that it qualified as an exception to the Fourth Amendment's proscription against unreasonable searches and seizures.

drug testing lab
The federal courts have held that drug tests are a search under the Fourth Amendment and have crafted only narrow exceptions to the rule, including testing of truck drivers and airplane pilots, police involved in narcotics work, and school students involved in sports or extracurricular activities.

The Job Corps program operates 28 centers for at-risk youth between the ages of 16 and 24. Clients there receive vocational training at the typically remote locations. The Forest Service had informed the union during negotiations in 2010 that it was going to impose random, suspicionless drug testing on all employees. The National Federation of Federal Employees, which represents Job Corps workers, filed suit seeking a preliminary junction, but was turned down in federal district court.

But in National Federation of Federal Employees v. Vilsack, the appeals court sided with the union. Vilsack is Agriculture Secretary Thomas Vilsack, who oversees the Forest Service.

"Although identifying governmental interests in the students' abstention from drug use and in their physical safety, the Secretary offered no foundation for concluding there is a serious drug problem among staff that threatens these interests and thus renders the requirement for individualized suspicion impractical," wrote Judge Judith Rogers, who was joined by Judge Douglas Ginsburg in the majority opinion. "Rather, the Secretary's evidence to date suggests the contrary. Because the Secretary has offered a solution in search of a problem, the designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the 'closely guarded category of constitutionally permissible suspicionless searches.'"

In his dissent, Judge Brett Kavanaugh argued that it seemed sensible to drug test employees at residential schools for at-risk youth, some of whom have previously used drugs.

"In these limited circumstances, it is reasonable to test; indeed, it would seem negligent not to test," Kavanaugh wrote. "To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem. That is especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools."

But Kavanaugh's was the minority opinion, and once again, the federal courts have ruled against random, suspicionless drug testing absent the government making a strong case for its necessity.

Washington, DC
United States

Medical Marijuana Update

The Rhode Island governor has finally opened the door to compassion centers, a medical marijuana initiative campaign is getting underway in North Dakota, people are going to federal prison in Montana, and the battles continue in California. Let's get to it:

California

Last Wednesday, Fresno police said they would shut down a newly opened dispensary. The California Herbal Relief Center opened quietly and said "a loophole" in the city code allowed it to circumvent the city's ordinance against dispensaries, but Fresno police were having none of it. The department has sent the operator  a "hand delivered note that he needs to stop doing what he is doing," a police spokesman said.

On Saturday, Sunday, and Monday, advocates held a three-day unity event in Sacramento to rally support for state-regulated medical marijuana industry. About 200 people turned out Saturday to rally for a bill sponsored by Assemblyman Tom Ammiano (D-San Francisco) that would do just that. On Monday, reformers took to the capitol to lobby for the bill, Assembly Bill 2312.

On Monday, a federal appeals court ruled that cities do not violate the rights of the disabled when they ban dispensaries. A three-judge panel of the US 9th Circuit Court of Appeals in San Francisco rejected a claim by patients from Costa Mesa and Lake Forest that those cities' efforts to close dispensaries violated the Americans with Disabilities Act. The law does not protect the use of drugs banned by the federal government, the court held.

Also on Monday, the LA branch of the NORML Women's Alliance launched a voter education project aimed at identifying favorable (or unfavorable) candidates Los Angeles County Superior Court Judge in the June 5 primary election. Candidates for Superior Court Judge in Los Angeles County are being asked their positions on issues relating to medical marijuana, as well as three-strikes laws, mandatory minimum sentencing and the recent United States Supreme Court mandate to end overcrowding in California prisons.

Also on Monday, Tulare County filed suit against five collective members for growing medical marijuana in the wrong place. The lawsuit asserts that they are violating the county's land use ordinance by growing marijuana in a rural area near Cutler in northern Tulare County zoned exclusively for agriculture. Under the county's ordinance, medical marijuana collectives and cooperatives must operate in a commercial or manufacturing zone. This is not the first time Tulare County has sued medical marijuana growers. In 2009, the county sued Foothill Growers Association for growing marijuana in a building on agricultural property near Ivanhoe and cited the same ordinance. The collective put up a court fight but lost.

On Tuesday, Novato's last remaining dispensary announced it was closing. The Green Door Wellness Education Center will shut its doors June 15. It had been open since April 2010. The city has a moratorium on dispensaries, and the second-to-the-last one, the Green Tiger, closed in April under federal pressure.

Also on Tuesday, an attorney filed a suit to block Nevada County from enforcing an emergency marijuana cultivation ordinance it passed earlier this month. Attorney Jeffrey Lake is seeking a temporary restraining order on behalf of Americans for Safe Access Nevada County, Grassroots Solutions and Patricia Smith, who is the founder of the nonprofit patient advocacy group and the ASA chapter.

On Wednesday, Imperial Beach initiative campaigners announced they had gathered more than 2,000 signatures in less than two months for a municipal initiative to repeal a ban on dispensaries and replace it with reasonable regulations. Canvass for a Cause, a San Diego based nonprofit with the largest gay rights field program in the county, has partnered with San Diego Americans for Safe Access, a local chapter of the nation’s largest medical marijuana patients’ rights advocacy group on this campaign. They will hand in signatures to the city clerk on Saturday.

Maine

Last week, a medical marijuana clinic opened in Brewer. It is operated by Wellness Connection of Maine.

Massachusetts

Last Wednesday, the Massachusetts Prevention Alliance filed a lawsuit challenging the language in a likely ballot initiative to legalize medical marijuana. The lawsuit argues that the language is "misleading" and the initiative has "radical components." Attorney General Martha Coakley's office has already certified the ballot initiative titled, "An Act for the Humanitarian Use of Medical Marijuana." Proponents of the initiative must now collect 11,485 signatures by early July to get the initiative on the November ballot.

Over the weekend, the Massachusetts Medical Society approved a resolution opposing the legalization of medical marijuana without further scientific study. It did, however, pass another resolution calling on the DEA to reclassify marijuana to permit more studies.

Michigan

On Tuesday, the Marijuana Policy Project warned that more bad bills are coming in the state Senate. The bills would dramatically undermine the state's medical marijuana law, the group said, and it urged Michiganders to contact their senators.

Montana

On Monday, a Kalispell landlord was sentenced to a year in federal prison for renting a property to a medical marijuana business. Jonathan Janetski pleaded guilty to maintaining a drug involved premises, but he said he had no ties to the growing operation. The prosecution said Janetski wasn't just a landlord, that he didn't take money for rent for a year, and that he was an equal partner.

North Dakota

On Tuesday, a medical marijuana initiative campaign got underway. Rep. Steve Zaiser (D-Fargo) turned the proposed law in to the secretary of state's office for its approval, which is needed before signature-gathering can commence. The proposed law says someone with a "debilitating medical condition" may grow and use marijuana, and possess up to 2 ½ ounces of the drug. It says people with cancer, the HIV virus, post-traumatic stress disorder and other conditions may use marijuana legally.

Rhode Island

On Tuesday night, Gov. Lincoln Chafee (I) signed the bill allowing compassion centers to open. Championed by Sen. Rhoda Perry and Rep. Scott Slater, the bill was crafted to allay the governor's concerns, which had caused him to block them from opening more than a year ago. The amended law only allows centers to possess 1,500 ounces at one time and they can have no more than 99 mature plants at one time. Patients and caregivers will be able to sell any excess medical marijuana they produce directly to the centers as well.

(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.)

Harsh Cameron Douglas Sentence Sparks Appeal, Support

Cameron Douglas, the son of noted Hollywood actor Mike Douglas, had a well-known history of drug addiction when he was sentenced to five years in federal prison for heroin possession and drug distribution. Not offered drug treatment, Douglas relapsed while in prison and was caught in possession of a small amount of heroin and Suboxone.

Cameron Douglas
Most federal prisoners caught with small amounts of drugs are dealt with administratively, and that happened to Douglas. He spent 11 months in solitary confinement and was denied visits during that period for his transgression.

But, unusually, Douglas was also prosecuted for drug possession by a prisoner, and even more unusually, he was hammered hard at sentencing. Federal District Court Judge Richard Berman nearly doubled his original drug trafficking time, sentencing him to an additional 4 ½ years in prison. Prosecutors had asked for at most an additional two years.

In imposing the harsh sentence, Judge Berman said that Douglas was "continuously reckless, disruptive, and noncompliant" and had repeatedly refused to obey the law.

The draconian sentence for Douglas has sparked a reaction. Unlike most federal prisoners, thanks to his father, Douglas had the resources to appeal his sentence, which is possibly the longest in federal prison history for simple drug possession behind bars. And now that appeal has been joined by about two dozen addiction and drug treatment doctors and organizations who have signed an amicus curiae brief on his behalf.

The brief does not just argue that Douglas should be sentenced more leniently; it argues that Douglas is a classic example "of someone suffering from untreated opioid dependence" and that more prison time will do nothing to address his addiction. The brief shows that many federal prisoners suffer from drug addictions, that many fail to get any meaningful treatment for it in prison, and argues that imposing additional incarceration for drug-addicted prisoners serves no penological purpose.

"A central theme of the [brief] is the need to provide effective, evidence-based treatment to opioid-dependent persons, particularly to those under criminal justice supervision. Time and again, over the past four decades, the provision of appropriate substance abuse treatment to opioid-dependent persons has been shown to profoundly improve not only their health and well-being across a broad range of metrics, but also the health and safety of the larger public. This is especially true of methadone and other opioid substitution treatments," the brief argued.

"Conversely, [we] are acutely aware of the ramifications when such treatment is withheld -- the suffering, disease, death, and criminal behavior that result when punitive sanctions replace proven medical interventions and opioid dependence is left to fester," the addiction specialists argued.

The brief was written by Dan Abrahamson, director of legal affairs for the Drug Policy Alliance, which organized the effort to intervene in the Douglas case. Its signatories include the New York and California Societies of Addiction Medicine, as well as other medical, public health and human rights organizations, along with prominent individual physicians and substance abuse researchers.

"Tacking on more prison time for a person who is addicted to drugs because they relapse behind bars goes against fundamental principles of medicine, inflicts unnecessary suffering and undermines both safety and health," said Abrahamson.  "Such a response only fuels the vicious cycle we see daily across the country of drug-dependent persons being imprisoned while sick, coming out sicker, and then returning to jail even quicker -- at huge expense to everyone."

Most federal prisoners don't have the resources or the celebrity of Cameron Douglas, but many share his struggles with addiction. Justice for Cameron Douglas could help lead to more just treatment for them, as well.

New York, NY
United States

Oklahoma Governor Signs Welfare Drug Test Bill

Oklahoma Gov. Mary Fallin (R) last Wednesday signed into law a bill, House Bill 2388, that requires welfare applicants to be screened for possible drug use and drug tested upon suspicion they are using. They would be denied benefits if they test positive. The screening requirement is designed to surmount constitutional objections to mandatory, suspicionless drug testing of public benefits applicants and recipients.

Oklahoma Gov. Mary Fallin (wikimedia.org)
In the past two years, two states, Florida and Georgia, have passed laws requiring mandatory, suspicionless drug testing of welfare applicants. The Florida law has been blocked by a federal judge's temporary order as she considers whether to declare it an unconstitutional violation of the Fourth Amendments proscription against warrantless searches. Civil liberties and civil rights advocates in Georgia have vowed similar action against the law there when it goes into effect July 1. An earlier Michigan attempt to impose suspicionless drug testing of welfare recipients was found unconstitutional by a divided federal appeals court it 2003. That ruling was not appealed.

Several other states have passed public benefits drug testing laws with a screening process to create "reasonable suspicion" that a given individual might be a drug user. Those include Arizona and Missouri last year and Utah and Tennessee this year. The Tennessee bill has yet to be signed by the governor, but he has said he will do so. None of these state laws have yet faced legal challenges.

The Oklahoma law takes effect November 1 and is aimed at adults applying for the Temporary Assistance to Needy Families (TANF) program. Applicants who refuse to take the drug test or who test positive will be denied benefits. Applicants who test positive and then undergo a drug treatment program -- at their own expense -- can reapply for benefits after six months.

Child-only cases and cases where the parent is underage would not have to be drug tested. If a parent is denied benefits, the bill allows for payments to be made to an alternative payee.

Under an amendment passed in the Senate, the state will pay for the cost of drug testing. The bill originally called for applicants to pick up the tab.

"House Bill 2388 will help ensure welfare checks are not being used to pay for drugs. Hard working taxpayers shouldn't be asked to subsidize drug abuse, and this bill will help to ensure they are not," Fallin said in a signing statement.

"Additionally, HB 2388 helps to preserve the mission of state-funded welfare -- to provide a social safety net helping the unemployed and needy get back on their feet, find work and support their families," the Republican governor continued. "Unfortunately, drug abuse prevents many recipients of welfare from achieving any of these goals. Drug addiction and illegal drug use contribute to child abuse and child neglect. They also make it difficult to find and hold a job. For all these reasons it is important for drug users and those with substance abuse problems to seek treatment rather than simply being handed a check from Oklahoma taxpayers."

Oklahoma Democrats opposed the bill, with Sen. Jim Wilson (D-Tahlequah) calling it "poor policy" and "mean-spirited" during earlier debates, and Sen. Tom Ivester (D-Sayre) questioning why only one population that receives state assistance should be subjected to drug testing. But their Republican colleagues weren't listening.

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School

StopTheDrugWar Video Archive