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Submitted by David Borden on

If you want to gauge how far out of kilter our country's legal system has gotten, consider my friend Bernie, who was busted for growing marijuana to give to people with medical needs. The feds tried to put him away for a five year mandatory minimum, but for reasons I will go into shortly Bernie pulled eighteen months in a halfway house (which my informants tell me is actually tougher than jail) and two and a half years of “supervised release,” plus the federal government wants to effectively fine him a million dollars by confiscating the farm where Bernie has lived for the last forty years. And, they have appealed his parole and are asking that he be given even more than five years. Please notice it's the feds doing this. If Bernie's case had stayed at the state level, he would have been dealing with two years of probation and an eight thousand dollar fine, and would not be faced with losing his home. Those are the broad outlines. The more I ponder the details, the more I have to mourn what a Kafkaesque mockery “justice” has become in this country.

OK, here's some homegrown Kafka for you. First, the complaint. The person who turned Bernie's name over to the drug task force was was allegedly disgruntled because Bernie wouldn't sell him any marijuana for recreational use. A certain form of popular justice did catch up with this guy, though, as he finally had to leave the area due to the negative force of popular opinion as word of his role in Bernie's bust got out. I can only hope a similar fate awaits the rest of Bernie's persecutors, I mean prosecutors, but so far it hasn't caught up with them.

Irony of ironies: at the time the helicopters, ORV's, and SUV's descended on Bernie's farm, he was in the final stages of preparing a report for the State of New Mexico on how to implement a medical marijuana program—a medical marijuana program that has just been passed, as written by Bernie, and signed into law by presidential contender and New Mexico Governor Bill Richardson. Way to go Bill! I mean, I love Dennis Kucinich's ideals and his willingness to tilt at windmills but Bill Richardson actually got something done about this crazy kink in America's consciousness.

And here's the interesting wrinkle in Bernie and Bill's excellent plan to provide medical marijuana: it will be grown by the State of New Mexico, not by individuals. Now, I think everybody should have the right to grow their own, BUT—in this confrontational day and age, in which the feds have been busting individual growers and private dispensaries right and left in California, New Mexico is setting up a system where the feds will be up against—not individuals, but the State of New Mexico. What a scenario: the feds trying to bust a New Mexico State grow room while the New Mexico State Police deploy to defend the marijuana growing facility.... but, I digress.

So, the state heat came down and busted Bernie, hauling away his plants and his computer (including his draft of the aforementioned New Mexico Marijuana Law). Always back up your work outside your computer, folks! The next thing that happened was...nothing. For three months, nothing. And then, although it had been a state raid, Bernie found himself facing federal charges, allegedly due to the amount of marijuana involved, even though that amount was grossly exaggerated—like, they counted the dirtballs around the roots, not to mention the stalks, as part of the weight, which even violates their guidelines.

At this point, the plea bargaining began. Do you know about plea bargaining? It's pretty diabolic. The feds figure out everything they could possibly charge you with, which, in most people's cases, is quite a lot. You have no idea how complex our web of laws is until you become entangled in it. In most of the cases of which I am aware, friends of mine began by facing decades in jail on open-and-shut cases. (The thing about being a prisoner of conscience is, the law does not recognize your conscience in any kind of positive way. You're lucky we've gotten past burning people at the stake.) The upshot of plea bargaining is, you give them some piece of your soul and they drop most of the charges, and a jury never hears the case.

So, the bargaining began. Bernie's lawyer was adept, and managed to nail down one controversy by getting the evidence reweighed—and discovering that the actual amount was one-quarter of what Bernie had originally been charged with—and that STILL included the freakin' rootballs, fer cryin out loud! In fact, the usable amount of herb that Bernie was busted for growing came to seven pounds—about as much as the feds legally provide to each one of the five people who are legally getting medical marijuana from the U.S. government. (The original charges against him claimed that the confiscated plants weighed a total of one hundred and forty pounds.) Things were looking good for our boys—Bernie would only have to deal with probation and he'd get to keep his farm—but, when he and his lawyer showed up to sign the agreement they thought they had made with the feds, they had a big, ugly surprise—the feds had gone back to demanding a five year minimum and confiscation of Bernie's farm. Problem was, thinking he knew what he was agreeing to, Bernie had already entered a guilty plea, and the court denied his petition to revoke that plea, even though the feds had lied to Bernie about what they were going to ask him to plead guilty to. And—the judge set Bernie's sentencing hearing only two days after that decision, effectively denying him the chance to appeal. How's that for Kafka?

Fortunately, Bernie drew a sympathetic judge, who allowed sixty character witnesses and medical marijuana testimony and ultimately reduced Bernie's sentence below the five year mandatory minimum. But yeah, the feds have court action going to get Bernie behind bars, and they're angling to confiscate his farm. For marijuana he had been demonstrably giving away for years. The guy was a consultant with a six-figure income. He was most emphatically not in it for the money. And if this had been a state case, as many cases of this size are, Bernie would have drawn two years probation and an eight thousand dollar fine. Kafka enough for you?

I am beginning to suspect that this is not some random case of prosecutorial insanity. As I mull over Bernie's story, especially in light of the current controversy over politicization of the US attorney system and direction of it from the executive branch for the purpose of punishing political enemies of the administration, I connect certain dots and suspect I am seeing Karl Rove's pasty finger pushing its way up my poor friend Bernie's ass. I mean, if these people outed Valerie Plame, America's number one anti-WMD undercover agent, why wouldn't they go after a vocal, credentialed proponent of medical marijuana like Bernie? This is not the first time he has come to their attention, after all. On one page in the save Bernie's farm website, he admits that, when he helped win the first big tobacco case against RJ Reynolds in 1984, “Reynolds thugs torched a car in my driveway to send me a message.”

Consider that some of what the junta stands accused of in the prosecutorial meddling affair is dropping the fine against the tobacco industry (of which R.J. Reynolds is, of course, a major part) from a hundred and thirty billion dollars to ten billion dollars, and that the politically appointed Justice Department official who directed this had for many years been a lawyer in a firm that worked for—R.J. Reynolds, a major contributor to the Bush campaign. Kafka, anyone?

I got pretty excited to learn that the current US attorney for middle Tennessee, Craig Morford, who is pressing the appeal of Bernie's sentence, is one of those interim, without-Congressional-oversight Bush loyalist appointees that constitute another wing of the current Justice Department scandal, but actually it was his predecessor, Jim Vines, who worked most of the flimflam on my friend Bernie. Jim left the job highly praised by the DEA, and has not gone public about the “real” reasons for his departure, but it is worth noting in his favor that he was responsible for prosecuting bribery scandals in the (Republican) Sundquist administration. On the other hand, he was part of the Tennessee Waltz sting, which was so blatantly aimed at discrediting Democrats that the only Republican snared in it was not charged . So would he have prosecuted Bernie on orders from the Justice Department, R.J. Reynolds, or the White House? We may never know, but...


I have often commented that the marijuana laws are in place largely to curb dissent in this country. I think I have just made my case.

In closing, our Truth in Strange Places Award goes once again to freshman Senator James Webb, who recently gave the following response to a question about whether he would accept the position of Vice President on the Democratic ticket:

"I am still finding my way around the Senate and I'm having a really good time in the Senate. We've -- this is a chance to put a lot of issues on the table. One of the issues which never comes up in campaigns but it's an issue that's tearing this country apart is this whole notion of our criminal justice system, how many people are in our criminal justice system .. -- I think we have two million people incarcerated in this country right now and that's an issue that's going to take two or three years to try to get to the bottom of and that's where I want to put my energy."

Senator Webb, I'd like you to meet my friend Bernie....

music: REM, “Welcome to the Occupation”

(this commentary was originally written for The Green Hour radio show on WRFN, Nashville, Tennessee)

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