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First Amendment: Kenneth Starr Joins Appeal of 9th US Circuit Ruling in "Bong Hits 4 Jesus" Case

Former Whitewater special prosecutor Kenneth Starr is offering his services pro bono to the Juneau, Alaska, school district in a case pitting First Amendment rights against the district's tough anti-drug policies. The 9th US Circuit Court of Appeals ruled in March that Principal Deborah Morse had violated the rights of Juneau-Douglas High School student Joseph Frederick when she suspended him for 10 days for holding aloft a banner reading "Bong Hits 4 Jesus" during a January 2002 parade. School officials told Frederick he was suspended for advocating illegal drug use.

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Ken Starr's new target: t-shirts about bongs
The 9th Circuit was having none of that. In a unanimous ruling, a three-judge panel held that even high school students have a right to express themselves if they don't disrupt school or its educational mission. "A school cannot censor or punish students' speech merely because the students advocate a position contrary to government policy," wrote Judge Andrew Kleinfeld for the panel.

Starr, whose main claim to fame was investigating the relationship between President Bill Clinton and intern Monica Lewinsky, filed a petition Monday urging the Supreme Court to hear the case. It's not a done deal; at least four of the nine justices must vote to hear it if it is to make it before the high court.

School district Superintendent Peggy Cowan told the Associated Press the district is appealing to seek clarity on the rights of administrators to impose discipline on students who break the district's drug message policy. "The district's decision to move forward is not disrespectful to the First Amendment or the rights of students," she said. "This is an important question about how the First Amendment applies to pro-drug messages in an educational setting."

It looks like someone needs to go back to school on the meaning of the First Amendment.

South Arizona Couple Defend Religious Use of Marijuana

Localização: 
Albuquerque, NM
United States
Publication/Source: 
Arizona Daily Star
URL: 
http://www.azstarnet.com/dailystar/metro/144146

Feature: Pain Doctor William Hurwitz to Get New Trial

In a closely watched case with national implications, a federal appeals court has granted a new trial to a well known Northern Virginia pain doctor sent to federal prison for 25 years as a drug dealer. Pain patient advocates and medical associations praised the ruling in the case of Dr. William Hurwitz, who was convicted in late 2004 of 50 counts in a 62-count indictment, including conspiracy to distribute controlled substances.

Hurwitz appealed his conviction, arguing that trial Judge Leonard Wexler erred by not instructing the jury that Hurwitz should not be convicted if he acted in "good faith." Typically in cases where the quality of medical care is in question, such matters are decided by medical boards or civil courts in the form of malpractice suits. Only doctors who are not prescribing in good faith that they are in line with accepted medical practices face criminal charges. In his jury instructions, Judge Wexler removed Hurwitz' only effective defense.

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Dr. Hurwitz in 1996 (photo courtesy Skip Baker)
For federal prosecutors, who pointed to multiple examples of high-dose prescriptions Hurwitz had written and who claimed he should have recognized some of his patients to be addicts or dealers, Hurwitz was nothing more than a Dr. Feelgood, no different from -- or perhaps worse than -- the kid slinging crack on the street corner. But for patient advocates and a growing number of medical professionals, the case was the highest-profile example yet of a Justice Department and DEA creating a chilling climate toward doctors' willingness to treat chronic pain with opioid pain medications.

That is why even though even some questioned Hurwitz's prescribing practices, his appeal nevertheless won the support of professional organizations like the American Academy of Pain Medicine, the American Pain Foundation, and the National Pain Foundation, all of which filed briefs in his support. Also joining the fray was the Drug Policy Alliance, which filed its own brief on behalf of pain specialists.

A three-judge panel in the 4th US Circuit Court of Appeals in Richmond agreed with Hurwitz and his allies in its opinion Monday. The panel held that Judge Wexler had erred when he told jurors they could not consider whether Hurwitz had acted in "good faith" when he prescribed large doses of opioid pain relievers like Oxycontin to patients.

"A doctor's good faith in treating his patients is relevant to the jury's determination of whether the doctor acted beyond the bounds of legitimate medical practice," wrote Judge William Traxler. "The district court effectively deprived the jury of the opportunity to consider Hurwitz's defense." That was a fatal error, the panel held. "We cannot say that no reasonable juror could have concluded that Hurwitz's conduct fell within an objectively-defined good-faith standard," wrote Traxler.

"We are very gratified by this decision," said Dr. Jane Orient, executive director of the libertarian-leaning Association of American Physicians and Surgeons, a group that has been in the vanguard of the medical profession on the issue of protecting pain doctors and patients. "Overturning one of these verdicts is something that almost never happens, and we hope it represents a tipping point," she told DRCNet. "We hope that the courts will finally begin to pay attention to the fundamental issues of justice involved here. A doctor is not a drug dealer, and neither is he a policeman. Doctors cannot be held responsible for patient misbehavior."

"I'm delighted," said Dr. Frank Fisher, a California physician originally charged with five counts of murder over his prescribing practices by overzealous prosecutors and state agents, but who was eventually completely exonerated. "This means they will have to let Billy out. The appeals court was absolutely correct in its decision," he told DRCNet.

The appeals court decision is a victory for Hurwitz and his supporters, but it is only one battle in a larger war over who controls the prescribing of pain medications -- the medical profession or the cops -- and in the meantime, doctors and patients are the casualties.

"They are still harassing and investigating doctors," said Orient. "And that in itself can destroy your practice. There are still doctors languishing in prison because they tried to do their best for their patients and there are still patients having difficulty finding physicians willing to do the pain treatment necessary to make them functional instead of bed-ridden suicidal people in severe pain," she said. "More doctors are aware of the extreme risk they take in getting involved with chronic pain patients. The DEA wants them to treat patients like they were suspected criminals."

Fisher pointed to the case of Dr. Richard Heberle, an Ohio physician, of how devastating even defending oneself from such charges can be. "Look at what happened to Dr. Heberle," he said. "He won, but his practice is ruined, his reputation is ruined, his life is ruined. The only thing worse than winning one of these cases is losing one, or maybe coming down with a bad case of chronic pain."

Asset Forfeiture: Federal Appeal Upholds Seizure of Cash Despite Lack of Drugs

A federal appeals court has held that police acted within the law when they seized nearly $125,000 in cash from a man's car during a traffic stop, even though no drugs were found in the car. A three-judge panel from the 8th US Circuit Court of Appeals found in US v. $124,700 in US Currency that the cash may have been linked to the drug trade, overturning an earlier decision by a US Magistrate Court judge in Nebraska.

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House of Evil: the 8th US Circuit Court of Appeals
Emilio Gonzolez was pulled over for speeding on Interstate 80 in 2003. Gonzolez told the officer the car he was driving had been rented by someone named Luis, that he had never been arrested, and that he was not carrying drugs, guns, or large sums of money. Gonzolez then consented to a search of the vehicle, which turned up $124,700 in cash in a cooler on the back seat. Police also learned that Gonzolez had been arrested for drunk driving and that the person who rented the car was not named Luis. Police then sicced a drug dog on the vehicle, and the dog alerted on the cash and on the seat where it was sitting.

In court, Gonzolez testified that he had flown from California to Chicago and planned to use the cash to buy a refrigerated truck there, but when he arrived there, the truck had already been sold. He decided to drive back to California, but needed someone to rent a car because he had no credit card, he testified. Gonzolez said he lied about having the money because he feared carrying large amounts of cash could be illegal and he hid it in the cooler because he was afraid it might be stolen. He testified that he didn’t reveal the drunk driving arrest because he didn’t think drunk driving was a crime.

Gonzolez' tale may have been barely credible, but any positive evidence linking his stash of cash to drug trafficking was hard to come by. Still, the appeals court overturned the original decision. "We believe that the evidence as a whole demonstrates... that there was a substantial connection between the currency and a drug trafficking offense," the court wrote. "We have adopted the commonsense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking."

That wasn’t good enough for dissenting Judge Donald Lay, who argued that there was no evidence linking the cash to drug trafficking. "At most, the evidence presented suggests the money seized may have been involved in some illegal activity -- activity that is incapable of being ascertained on the record before us," Lay wrote.

But what about the drug dog alerting on the cash and the car seat? "Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense," Lay reasoned.

San Diego attorney Donald Yates, who represents Gonzolez, told the Associated Press they would appeal the decision. People who do not have credit or bank accounts and who must do business in cash are being treated unfairly, he said. "They do not allow for anybody to have a lifestyle different from the average person in Nebraska."

Court Rules 2003 Money Seizure Correct Despite No Drugs Found

Localização: 
Omaha, NE
United States
Publication/Source: 
Associated Press
URL: 
http://www.mercurynews.com/mld/mercurynews/news/local/states/california/northern_california/15310257.htm

Judge deals blow to claim that meth sting targeted South Asians

Localização: 
Atlanta, GA
United States
Publication/Source: 
Associated Press
URL: 
http://www.macon.com/mld/macon/news/politics/15190586.htm

Sentencing: Federal Judges More Likely to Acquit Than Juries

Federal judges are much more likely to acquit defendants than juries are, according to a review of some 77,000 federal criminal trials between 1989 and 2002. Juries convicted 84% of defendants, while judges in bench trials convicted only about half. The phenomenon is recent, with judges and juries convicting at about the same rate from the 1960s through the 1980s, and prior to that, judges were much more likely to convict than juries.

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The findings come from a paper published by University of Illinois College of Law professor Andrew Leipod, "Why Are Judges So Acquittal-Prone?," published in the Washington University Law Quarterly and discussed at some length at the Volokh Conspiracy blog. According to Leipold, he was puzzled at the shift and sought an answer.

"The core problem," he wrote, "is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries." The evidence suggests a likely culprit, Leipod argued. "I think the sentencing guidelines best fits this description. The guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh - maybe too harsh - sentence. We don't have to say that judges were acting 'lawlessly' to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving."

Because judges do not fill out forms showing what factors they weigh when they rule, any evidence of a link between conviction rates and the sentencing guidelines is necessarily indirect, but, Leipold notes, it is probably not coincidence that "with the Guidelines really hitting stride just as the judicial conviction rate started to slide." Many judges "were harshly critical of the how the guidelines made it harder for them to do justice in individual cases," he noted.

[Editor's Note: One might suppose that mandatory minimum sentencing is also having this effect on federal judges -- an equally, sometimes harsher federal sentencing system that is parallel to and interlocks with the guidelines. Congress enacted mandatory minimums very hastily, two years after creating the sentencing guidelines, following the 1986 overdose death of University of Maryland basketball star Len Bias.]

County, Clinic Begin Faceoff Over Treating Heroin Addicts

Localização: 
United States
Publication/Source: 
Baltimore Examiner
URL: 
http://www.examiner.com/a-182407~County__clinic_begin_faceoff_over_treating_heroin_addicts.html

Sentencing: Justice Kennedy Lashes Out at Harsh Prison Terms

US Supreme Court Justice Anthony Kennedy told a gathering of judges in Southern California Sunday US sentencing practices were harsh and troubling. US sentences are eight times longer than those in Europe, Kennedy said, adding that the public needed to be aware of the length of sentences in the US.

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Justice Kennedy
"If an 18-year-old is growing marijuana for a friend, that's distribution," said Kennedy in remarks reported by the Orange County Register. "If he has his father's .22 rifle, that's a firearm. That will get 15 years. Did you know what 15 years was when you were 18? I didn't when I was 18."

Kennedy, a Sacramento native who was recently designated Supreme Court justice for the 9th US Circuit Court of Appeals, also criticized state sentencing practices. He noted pointedly that California alone has more than 200,000 people behind bars.

Kennedy also complained that the people at whom the harsh sentences are aimed are largely unaware of them until they fall into the hands of the criminal justice system. "If sentences are to be a deterrent, what is the good of them if nobody knows how long they are?" he said.

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