Prosecution

A seldom-discussed but significant weak link in the drug war infrastructure is the ability of any defendant to have their fate decided by a jury. Although the threat of draconian sentences leads the vast majority to plead out and accept an agreed-upon punishment, those who choose to fight it out before a jury of their peers have an opportunity to escape the drug war's icy death-grip. It's a high-risk/high-reward strategy that could become more effective as public support for the war on drugs continues to decline.

A not guilty verdict in San Diego this week highlights the difficulty of securing convictions against medical marijuana providers:

SAN DIEGO COURTS — A Navy veteran who was the manager of a medical marijuana dispensary was acquitted of five charges of possessing and selling the drug illegally yesterday, a verdict that emboldened medical marijuana activists and was a setback for San Diego prosecutors who have aggressively pursued medical marijuana cases. [San Diego Union Tribune]

Meanwhile, in Baltimore, the acquittal of an accused street dealer shows how aggressive drug war tactics have eroded public trust in police:

Only two witnesses testified at the two-day trial – Correa [the arresting officer] and a crime lab technician who tested the drugs and concluded they were indeed heroin and cocaine. Defense attorney Marie Sennett told jurors in her opening statement that the case rested solely "on the word of the officer."

And, Sennett added, "Unfortunately, that's not enough."

The jury agreed and acquitted Walker-Bey on all charges of possessing drugs and possessing drugs with intent to distribute. [Baltimore Sun]

In a climate of increased public skepticism surrounding the efficacy of the war on drugs and the fairness of the criminal justice system, outcomes like these will hopefully become more commonplace. When the jury refuses to play along, even the virtually unchecked prosecutorial powers that have done so much to fill our prisons with drug offenders can be overcome. There's no reliable formula for spotting jurors who might be reluctant to convict in a drug case, and it only takes one to complicate the process dramatically. Provided they don't, for example, write a blog about legalizing drugs, getting on a jury can be as simple as dressing appropriately and affirming their willingness to uphold the law.

The power of juries to reshape the drug war landscape can already be seen in California, where prosecutors learned years ago that medical marijuana cases aren't nearly as open and shut as federal law would suggest. The Ed Rosenthal saga, in which the jury revolted after the verdict and got the conviction thrown out, gave federal prosecutors an early taste of what lay ahead if they tried to win the war on medical marijuana in the courtroom.

Such events go a long way towards explaining why DEA agents so often raided dispensaries and confiscated profits, while declining to press charges against anyone. Every medical marijuana trial is a guaranteed public relations nightmare and there's no upside if you can't even count on a conviction. I've long suspected that the threat of uncooperative juries may in fact have been the most significant factor in enabling California's medical marijuana industry to survive and expand during the Bush Administration. With little confidence in their ability to make an example of anybody, the Feds just broke stuff instead, while leaving the industry almost completely intact.

With marijuana legalization now rapidly approaching majority support among the American public, it just seems inevitable that prosecutors will have a harder time getting groups of 12 random people to send someone to jail for marijuana. And if that happens, even a little, the implications are far-reaching. The criminal justice system is pathetically dependent on plea-bargaining in drug cases, and would grind to a halt rather quickly if more defendants insisted on taking their case to trial.

I'm beginning to fantasize here, obviously, but I do think it's important to start looking at some of the ways in which growing public support for our cause can manifest itself in contexts besides just the ballot box. The drug war is vulnerable on all fronts and the harder we work to expose and exploit its countless weakness, the more efficient and decisive our victory will be.

For more on the rights of jurors, visit the Fully Informed Jury Association.

Editor's Note: We wanted to get this important story posted today, but we will develop it further for the Drug War Chronicle on Friday. In a new federal medical marijuana policy memo issued this morning to the DEA, FBI, and US Attorneys around the country, the Justice Department told prosecutors that medical marijuana patients and providers in states where it is legal should not be targeted for federal prosecution. The memo formalizes statements made by Attorney General Eric Holder in February and March that going after pot-smoking patients and their suppliers would not be a high Justice Department priority. The memo marks a sharp break with federal policy under the Clinton and Bush administrations, both of which aggressively targeted medical marijuana operations, especially in California, the state that has the broadest law and the highest number of medical marijuana patients. The announcement of the policy shift won kudos from the marijuana and broader drug reform movement. But some reformers questioned what the shift would actually mean on the ground, pointing to DEA raids and federal prosecutions that have occurred since Holder's signal this spring that the feds were to back off, as well as continuing controversies, especially in California, over what exactly is legal under state law. Others noted that for real protection to be in place, federal law—not just prosecutorial policy—needs to change. In the memo, federal prosecutors were told that going after people who use or provide medical marijuana in accordance with state law was not the best use of their time or resources. According to the memo, while the Justice Department continues to make enforcing federal drug laws a key mission:

"As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources."

But the memo also said that federal prosecutors should continue to target marijuana production or sales operations that are illicit but hiding behind state medical marijuana laws. It explicitly singled out cases involving which involve violence, the illegal use of firearms, selling pot to minors, money laundering or involvement in other crimes. "It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," said Attorney General Holder. "This is a huge victory for medical marijuana patients," said Steph Sherer, executive director of Americans for Safe Access, the nationwide medical marijuana advocacy organization, which had been in negotiations with the Justice Department to get written guidelines issued. "This indicates that President Obama intends to keep his promise not to undermine state medical marijuana laws and represents a significant departure from the policies of the Bush Administration," continued Sherer. "We will continue to work with President Obama, the Justice Department, and the US Congress to establish a comprehensive national policy, but it's good to know that in the meantime states can implement medical marijuana laws without interference from the federal government." "This is the most significant, positive policy development on the federal level for medical marijuana since 1978," said the Marijuana Policy Project in a message to its list members today. "It's great to see the Obama administration making good on the promises that candidate Obama made last year. These new guidelines effectively open the door to sensible collaboration between state governments and medical marijuana providers in ensuring that patients have safe and reliable access to their medicine," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "What remains unclear is how the Justice Department will respond to rogue state attorneys, such as San Diego's Bonnie Dumanis, who persist in undermining state medical marijuana laws in their local jurisdictions. Now is the right time for the Obama administration to move forward with federal legislation to end the irrational prohibition of medical marijuana under federal law." While the policy memo was "encouraging," the "proof will be in the pudding," said California NORML head Dale Gieringer, who also cited the recent raids in San Diego, as well as the August federal indictment of two Lake County medical marijuana providers. "Note that the new Obama policy has a glaring loophole, emphasizing that 'prosecutors have wide discretion in choosing which cases to pursue, and ... it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law,'" Gieringer said. "The salient question is, who decides what is 'without a doubt' in compliance with state law? As shown by the recent statements of LA's DA and City Attorney, there exist significant doubts about the legality of most dispensaries in California. It remains to be seen how far the administration's new policy guidelines will go to prevent further abuses, when what is really needed is fundamental reform of federal laws and regulations." And so opens the next chapter in America's long, twisted path to the acceptance of medical marijuana.

The government's war against pain doctors hit a new low last spring, when federal prosecutor Tanya Treadway, busy prosecuting Kansans Steve and Linda Schneider, subpoenaed pain control advocate Siobhan Reynolds for information on the Pain Relief Network's (PRN) public advocacy in support of the Schneiders. Despite ACLU efforts to quash the subpoena as an attempt to shut down free speech, judge US District Judge Julie Robinson allowed it. Friday, according an update from Jacob Sullum on Reason, Robinson imposed a $200/day civil contempt fine on both Reynolds and PRN, to begin in 10 days if she does not comply with the subpoena. An appeal is planned -- stay tuned. Earlier in the week, Boston-based civil liberties attorney Harvey Silverglate criticized Treadway in a column in Forbes magazine. We reprint a few paragraphs, also via Sullum:

When Reynolds wrote op-eds in local newspapers and granted interviews to other media outlets, Assistant U.S. Attorney Tanya Treadway attempted to impose a gag order on her public advocacy. The district judge correctly denied this extraordinary request. Undeterred, Treadway filed on March 27 a subpoena demanding a broad range of documents and records, obviously hoping to deter the peripatetic pain relief advocate, or even target her for a criminal trial of her own. Just what was Reynolds' suspected criminal activity? "Obstruction of justice" is the subpoena's listed offense being investigated, but some of the requested records could, in no possible way, prove such a crime. The prosecutor has demanded copies of an ominous-sounding "movie," which, in reality, is a PRN-produced documentary showing the plight of pain physicians. Also requested were records relating to a billboard Reynolds paid to have erected over a busy Wichita highway. It read: "Dr. Schneider never killed anyone." Suddenly, a rather ordinary exercise in free speech and political activism became evidence of an obstruction of justice.

In July and September I wrote here about the plight of Bill Mangino, a Pennsylvania physician who was decent enough to treat patients with the pain medications (opiates) that they needed, and was punished for these good deeds with a prosecution and now imprisonment -- all over a crime that never happened and for which no evidence exists happened. Yesterday I heard from Dr. James Stacks, a Mangino supporter and board member of the Pain Relief Network, with the news that Dr. Mangino had asked we post correspondence he sent to a judge prior to a hearing today that he hopes will get him a new trial and freedom in the meantime. The briefs were put together by Mangino himself, written by hand, but has been scanned for our edification online as well. Interested parties can read some commentary on it by Alex DeLuca here, or go straight to the briefs online here or here. A cutting quote that Dr. Mangino used as his signature line in the documents:

Statutes must mean what they say... and say what they mean.

Another pain physician, Dr. William Mangino, was convicted on trumped up charges equating his reasonable prescribing of opioid pain medications in the course of practicing medicine with illegal drug dealing. He is in jail pending sentencing, unless someone comes up with the $3,500 bail he needs to get out. Dr. Mangino is a writer and a thinker, and throughout his lengthy travail he has sent a copious amount of email to people who are interested in this problem, including myself -- not just about himself but commentary on the issue too, and on prosecutions brought against other doctors, much of it very detailed. It always makes me sad when these cases turn out badly (or when most drug cases turn out badly, for that matter), but the combination of the absence of his emails with the news itself has reinforced the reality of it for me. It probably won't be long, though, before he writes some things for us about this latest stage and someone gets it typed up and posted. Alex DeLuca has an update that includes some of the defense strategies for challenging the conviction (which include a Motion for a Directed Verdict of Not Guilty), the address for writing to Dr. Mangino in jail, and other information.

This one has me as angry as I've been in a long time. Tampa Bay, Florida, area resident Mark O'Hara served two years of a 25-year mandatory minimum sentence for 58 Vicodin pills. (Vicodin is an opiate pain reliever.) Sound like an extreme sentence for such a small amount, even if it was trafficking as the charges read? But there's more. O'Hara had a prescription for the pills. He's a pain patient. His doctor confirmed that he had prescribed the Vicodin to O'Hara and that he had been treating O'Hara for years. But prosecutors moved against him, and -- astonishingly -- argued to the judge that the jury shouldn't be informed that O'Hara had a prescription for the Vicodin, because there's no "prescription defense." And the judge -- doubly astonishingly -- actually bought it. Never mind the fact that the drug law O'Hara was charged with violating specifically exempts people who have a prescription. The appellate judges who threw out his conviction used words like "ridiculous" and "absurd" to describe it. Sickeningly, prosecutors have yet to say that O'Hara is off the hook and won't be taken to trial again. I think we need to organize on this one and press the system to do justice to the prosecutors and judge for the terrible atrocity they committed against Mark O'Hara. Knowingly imprisoning an innocent person is the functional equivalent of kidnapping. It should be treated as such. Prosecutors Mark Ober and Darrell Dirks should be in chains; their continued status as individuals holding power in the criminal justice system poses a threat to the safety of all Americans. The judge who enabled the kidnapping, Ronald Ficarrotta, may only be completely incompetent, but I'm not sure he should get that benefit of the doubt. Read more at Reason.

One of the feature stories I'm working on this week is the Ed Rosenthal re-trial on federal marijuana production and distribution charges, which ended yesterday with a split verdict. The trial was a complete waste of time since even if Rosenthal was found guilty, he could not be sentenced to anything more than the one day he had already served, but federal prosecutors were vindictively determined to get their man. Rosenthal's supporters were equally determined not to help the government, and that's where the new tactic emerged: A dozen people in the medical marijuana movement who had been subpoenaed to testify against Rosenthal simply refused. A civil contempt citation is the usual response to such refusals, but as the judge in the case noted, the contempt citation is designed to impel people to testify, not to punish the. When the judge asked if throwing them in jail for the weekend would change their minds, they all said no. Since they convinced the judge they were rock solid in their positions, he decided not to issue the citations and instead dismissed them. He also thanked them for the dignity they displayed in articulating their positions. We should all thank them for taking this courageous stand. Who knows? Maybe we can start a movement. Look for a feature story on the trial and the witness rebellion tomorrow.

good riddance to Paul McNulty!!!!!

One of the big news stories today was the resignation of Deputy Attorney General Paul McNulty as part of the US Attorneys firings scandal. I commented on the possibility of a McNulty firing on March 20th here in the Speakeasy, pointing out his history as the prosecutor who initiated charges against pain physician Dr. William Hurwitz, got the DEA's pain FAQ pulled to influence the trial, as well as his role in getting parole abolished in the state of Virginia. McNulty was present last month when the new Hurwitz verdicts -- more limited than the original, though still negative -- were read. Good riddance to Paul McNulty. May this mark an end to his evil works once and for all.

The Pain Relief Network has posted updates on the case of Virgin Islands pain physician Dr. Paul Maynard, here, here and here. I don't think we have past coverage of Dr. Maynard's case on DRCNet, but our under-treatment of pain feed gets updated regularly (and is also available via RSS).