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Angry Afternoon (The Human and Fiscal Cost of the Medical Marijuana Wars)

Two reports came out today about the federal government's attacks on medical marijuana providers. First, California NORML surveyed court records connected with medical marijuana cases, finding nearly 500 person years of incarceration for medical marijuana defendants. Second, Americans for Safe Access has estimated $300 million spent by the Obama administration on anti-medical marijuana enforcement, after $200 million spent in two terms of the Bush administration -- half a billion total.

Dale Schafer and Mollie Fry (canorml.org)
Among the cases highlighted are those of people like Richard Flor, Montana medical marijuana provider who died in federal prison. They include the husband and wife defendants Dale Schafer (a hemophiliac) and Dr. Mollie Fry (a cancer patient). Not highlighted in the release, but on the list, is my friend Bryan Epis, California's second medical marijuana defendant and the first to be convicted. Bryan is getting out soon, but he's spent too many years behind bars. There are many more, of course.

Some people argue that these people knowingly took a risk, violating federal law, and even if one disagrees with a law, it's the law and prosecutors are bound to uphold it. But that misses a basic ethical point, and a practical one. In practical terms, police and prosecutors have discretion to focus their resources on the cases of most importance to them. They also can choose not to prosecute, or make deals to let people out of prison time, no abuse of discretion being thereby committed. In many cases that's what happened.

And so in a situation such as this one -- states passing pro-medical marijuana laws, now even legalization laws, the Obama administration effectively encouraging people further by promising a more-or-less hands off approach to the issue, that clearly would have been the right approach for officials to take. If they felt (rightly or wrongly) that they had to shut down certain operations, the ethical approach, given all that came before, would have been to tell the people things have changed, they have to stop doing what they're doing or face prosecution, but giving them that chance. (The same idea applies to Marc Emery, whose business was accepted by authorities for nine years until they hit him with the years he's serving.)

Instead of doing that, in the many cases CANORML has highlighted, they instead let the parties go about their business for years, until they had the evidence compiled they would need to get the extremely harsh sentences they wanted. If these outlets were really harming the public, shouldn't they have moved to close them down as soon as they could instead? I thought the point of our laws was to protect the public, not to destroy the individuals targeted by the law.

Those are a few of the reasons it's an angry afternoon for me.

California Senate Passes Drug Defelonization Bill

The California Senate Thursday passed a bill that would give prosecutors the option of charging people caught in the possession of small amounts of hard drugs with misdemeanors instead of felonies. Senate Bill 649, the Local Control in Sentencing Act, now goes before the Assembly.

California prison overcrowding (US Supreme Court)
Introduced by Sen. Mark Leno (D-San Francisco), the bill is designed to ameliorate California's ongoing over-incarceration crisis, reduce the burden of county corrections costs (counties are taking up the burden of imprisoning large numbers of people under the state's prison realignment plan), and increase the number of problem drug users entering drug treatment.

"One of the best ways to promote lower crime rates is to provide low-level offenders with the rehabilitation they need to successfully reenter their communities," said Leno. "However, our current laws do just the opposite. We give nonviolent drug offenders long terms, offer them no treatment while they're incarcerated and then release them back into the community with few job prospects or opportunities to receive an education. SB 649 gives local governments the flexibility to choose reduced penalties so that they can reinvest in proven alternatives that benefit minor offenders and reserve limited jail space for serious criminals."

Thirteen other states already allow misdemeanor filings for hard drug possession, Leno said.

"In these 13 other states we can document that there is higher participation in drug treatment," Leno said. "As a result there is lower drug use. As a result, there is less violent and property crime in these 13 other states."

Leno sponsored similar legislation last year, but that measure required that hard drug possession be treated as misdemeanor. That led law enforcement to oppose it on the grounds that it removed leverage necessary to get drug users into treatment. This year's makes hard drug possession a "wobbler," meaning prosecutors could charge it as either a misdemeanor or a felony.

"They need the hammer, the threat of a felony, to make sure certain people go into treatment," Leno explained.

Despite the partial retreat, this year's legislation was again supported by the ACLU of California and the Drug Policy Alliance.

"We commend the Senate for approving this bill at a time when lasting, sustainable and common sense solutions to California's ongoing incarceration crisis are so needed," said Margaret Dooley-Sammuli, senior criminal justice and drug policy advocate for the ACLU of California. "This bill will help counties break the state's addiction to incarceration by enabling them to invest their limited resources in the community-based treatment, rehabilitation and education programs proven to reduce recidivism, prevent crime and increase public safety."

But not everybody supported the legislation, which passed on a 23-14 vote. Three Democrats joined 11 Republicans in voting against the bill. Some of those opponents had old-school solutions instead.

Sen. Ted Gaines (R-Rocklin) noted that people can already go into drug treatment instead of jail under Proposition 36. He said the solution was to build more jails and prisons.

Sacramento, CA
United States

Boulder DA Stops Marijuana Possession Prosecutions

The district attorney in Colorado's Boulder County announced Wednesday he will dismiss all pending small-time marijuana and paraphernalia possession cases, saying that given overwhelming support for Amendment 64 in Boulder County he would be hard pressed to find a jury to convict.

Boulder County DA Stan Garnett (bouldercounty.da.gov)
"You've seen an end to mere possession cases in Boulder County under my office," DA Stan Garnett told the University of Colorado student newspaper the Daily Camera. "It was an ethical decision," Garnett said. "The standard for beginning or continuing criminal prosecution is whether a prosecutor has reasonable belief they can get a unanimous conviction by a jury. Given Amendment 64 passed by a more than 2-to-1 margin (in Boulder County), we concluded that it would be inappropriate for us to continue to prosecute simple possession of marijuana less than an ounce and paraphernalia for those over 21."

While Amendment 64 will not go into effect most likely until sometime in January, Garnett said the high level of support for the measure in the county convinced him to begin dropping cases.

"We were already having trouble sitting a jury anyway," Garnett said. "That overwhelming vote total, that's where we get our juries from."

Boulder police Chief Mark Beckner told the Daily Camera that his department would now stop issuing tickets or making arrests for mere marijuana possession of less than an ounce and paraphernalia.

"We will not be issuing any summonses for the offenses cited by the Boulder DA," Beckner said. "We had already told our officers it was a waste of time to issue summonses for those offenses anyway, given the passage of the amendment. We are in a wait and see mode on how the state will regulate sales and possibly use in public places."

Garnett's stance came the same day Amendment 64 proponents called on other prosecutors, particularly Denver DA Mitch Morrisey, to follow his lead.

"A strong majority of Coloradans made it clear that they do not believe adults should be made criminals for possessing small amounts of marijuana," said Mason Tvert, a proponent of Amendment 64. "Colorado prosecutors can follow the will of the voters by dropping these cases today and announcing they are no longer taking on new ones. We applaud District Attorney Garnett for respecting the will of the voters, and we hope his colleagues across the state will follow his lead," Tvert said. "We do not see why District Attorney Morrissey or any other prosecutor would want to continue seeking criminal penalties for conduct that will be legal in the next month or so."

Prosecutors in some Washington counties, where marijuana legalization also passed, have also dropped pending pot possession prosecutions.

Boulder, CO
United States

Another Reason for Mexico to End Its Drug War

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

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

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

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

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

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

Washington DAs Begin Dropping Marijuana Possession Cases

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

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

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

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

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

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

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

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

WA
United States

Hundreds of Marijuana Cases Were Dismissed in Washington This Week

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

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

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

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

As I noted Wednesday, Tuesday really happened.

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

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

Chronicle Book Review Essay: Two Faces of the Drug War

Cornbread Mafia: A Homegrown Syndicate's Code of Silence and the Biggest Marijuana Bust in American History (2012, Lyons Press, 375 pp., $24.95 HB)

Operation Fly Trap: LA Gangs, Drugs, and the Law, by Susan Phillips (2012, University of Chicago Press, 174 pp., $18.00 PB)

https://stopthedrugwar.org/files/cornbread-mafia.jpg
It's a long way from the Bluegrass Country of central Kentucky to the bungalowed ghettos of South Central Los Angeles, and it's an even greater distance culturally than geographically. In the first locale, the white descendants of Catholic distillers turned moonshiners tend their crops in hidden hollows, distrust of police by now second nature. In the second, the black descendants of post-World War II factory workers scramble to survive in a post-industrial landscape, slinging crack and dodging gang violence, with the police viewed as little more than an occupying force.

Cornbread Mafia and Operation Fly Trap focus on two groups of people separated by time, race, and culture, but united by a common adversary: the repressive apparatus of the drug war. Cornbread Mafia tells the story of some bad ol' good ol' boys who made Kentucky synonymous with top-grade domestic marijuana production in the '80s and who generated the largest domestic grow op bust ever, while Operation Fly Trap tells the story of a small group of LA cocaine suppliers and crack dealers in the early '00s who were wrapped up and sentenced to lengthy prison sentences in a pioneering use of innovative policing and prosecutorial strategems.

While both books critically address the interaction of groups of socially-defined criminals with a  law enforcement complex grown up to feed off them, they feel and read quite differently. Cornbread Mafia is written by a journalist with an intimate knowledge of Lebanon, Kentucky and surrounding Marion County, and it reads like a true crime thriller, full of hillbilly noir and great and crazy tales, except that unlike most of the genre, it is sympathetic to and gives voice to the deviant "others." It's the kind of dope tale you pick up and don't put down until you're done.

It centers on a 1987 Minnesota pot cultivation operation that was busted when an early snowfall killed the surrounding corn hiding it. Organized by Marion County grower and trafficker Johnny Boone, the massive Minnesota grow was the largest ever busted, and by the time the feds had unraveled things, some 70 Kentuckians had been indicted. Although not a one of them rolled over on his peers, many of them went away for long stretches, sentenced under new RICO laws designed to bring the pain to the backwoods pot scofflaws. Boone himself did 15 years.

But that bust and the indictments that followed -- much ballyhooed, of course, by back-patting DEA officials, federal prosecutors, and state law enforcement honchos -- were a long way down a road that wound back to those Prohibition era moonshiners -- Lebanon's location as hot spot on the 1950s and 1960s chitlin circuit, where black performers including a skinny guitarist named Jimi Hendrix performed, and the return of reefer-exposed Vietnam War vets in the 1960s and 1970s.

I recall traveling to Washington, DC, to attend the annual 4th of July smoke-in in 1978. Before DC legends Root Boy Slim & the Sex Change Band played their set, a gangly man in a suit bearing a down home accent took to the stage, introduced himself as Kentucky lawyer and legalization advocate Gatewood Galbraith, and threw large colas of weed into the crowd, yelling, "This is the real Kentucky Bluegrass!" I didn't have a clue then, learned about Galbraith and the Appalachian pot growing scene over the intervening years, but didn't really know the back story about the whole Kentucky scene. Now, thanks to Cornbread Mafia, I feel like I do, and Higdon tells it with grace and empathy.

It's a story that isn't over. Once Johnny Boone got out of federal prison, he couldn't help but return to his old ways. In 2008, he got busted growing 2,400 plants in a neighboring county. Facing life in federal prison as a three-striker, Boone vanished. The feds still haven't found him.

https://stopthedrugwar.org/files/operation-fly-trap.jpg
Operation Fly Trap, on the other hand, is written by an academic, published by an academic press, and reads like it. Granted, ethnographer Susan Phillips knows her stuff -- she spent years working in the neighborhood before even embarking on this project -- and she brings heart and passion to her writing, crafting a compelling and fascinating narrative, but it can still be heavy going at times. Still, even if sometimes wrapped a little too tightly in academic-speak, Phillips is exposing and addressing vital issues of race, class, and the structuring of criminality, and her critique is important and incisive.

Operation Fly Trap, a project of a multi-agency, state-federal joint task force aimed at gang suppression, drew its name from Tina Fly, the central figure in a crack cocaine operation in two Bloods-controlled South Central neighborhoods. Before it was done, it had wrapped up two dozen people from the tightly knit community, many from the same families, and sent them off to long federal prison sentences under anti-gang sentencing enhancements.

Like military commanders patting themselves on the back over the accuracy of their weapons, law enforcement and prosecutors congratulated themselves on the "precision" of their strike against the Tina Fly operation and the surgical removal of the cancer from the community.

But Phillips calls into question both the success of the operation and the means used to conduct it, and along the way, shines a bright light on the ways in which the impoverishment of communities like South Central and their ravaging by both criminals and those sent to catch them is a matter of public policy -- not merely personal pathology, the narrative offered up by all those men in suits at their press conferences.

Indeed, it is the situation that is pathological when the very criminals being hunted are the community's pillars, its breadwinners, and when their removal does not remove criminality, but enhances it. That pathology is only enhanced by the ongoing struggle between the community's criminals and the police, the use of snitches who sow mistrust and suspicion on the street, and by our refusal as a polity to do anything but keep reproducing those conditions that generate such predictable outcomes.

Phillips also documents how, as criticism of the mass incarceration of non-violent drug offenders grew ever louder, the use of anti-gang policing and prosecutions only intensified. "Operation Fly Trap was an attempt to make [mass incarceration] more palatable by recasting nonviolent drug offenders as intimately related to the lethal violence of gangs," she writes. Along with drug sentencing reform and new gang legislation, the Fly Trap task force "represented a need to re-present the drug war as healthy and justifiable."

It's worth noting that although the Fly Trap defendants were pursued under the banner of the war on gangs, they charges for which they were prosecuted were drug charges. And Operation Fly Trap was by no means unusual. In fact, Phillips notes, more than 5,000 gang investigations were mounted nationally between 2001 and 2010, resulting in 57,000 arrests and 23,000 convictions. With sentencing reforms having taken some of the bite out of the federal crack laws, the gang enhancements allow prosecutors to still hold the threat of decades of prison over the heads of those rounded up.

Cornbread Mafia and Operation Fly Trap focus in on different episodes of our perpetual war against the criminality we create through drug prohibition. Both are exceptionally useful in providing what is too often missing in drug policy discussions: the broader context. Journalist Higdon basically gives us a history of Marion County and situates those back woods pot criminals squarely within it, while ethnographer Higdon lays out the stark landscape of black LA, emphasizes how public policy decisions have created that landscape, and shows how other public policy decisions -- around economic policy, education, access to health and mental health services, incarceration as a response to social problems -- have created a milieu where Operation Fly Trap can be recreated in perpetuity.

Read Cornbread Mafia because it's a rollicking gas, but read Operation Fly Trap, too, because it's an eye-opening, sobering look at the whole penalization industry we're created to deal with the unruly underclasses we've created.

10 Years to Life for Medical Marijuana

 

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

Woman Walks After Prosecutorial Perfidy in Tucson [FEATURE]

Special to the Chronicle by Houston-based investigative journalist Clarence Walker, who can be reached at [email protected]. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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