Prosecution

There's something funny going on in Licking County, Ohio. According to the local newspaper's courthouse roundup, a bunch of people were charged with drug trafficking, but the charges don't seem to match the facts. Let me show you what I mean:

• Ti C. Warner, 27, last known address 381 N. Executive Drive, Newark, was charged with aggravated trafficking in drugs, a second-degree felony. The charge also carries a specification of selling drugs near a school. Between March 29 and 30, Warner allegedly was observed by Central Ohio Drug Enforcement Task Force buying a total of about seven grams of methamphetamine on two occasions, according to court reports. Both purchases were allegedly made in the vicinity of a Newark City school, according to court reports. Branstool set Warner’s bond at $40,000. • Sherry L. Runyon, 46, last known address 16328 Pleasant Hills, Newark, was charged with trafficking in crack cocaine, a fifth degree felony. On April 11, she allegedly was observed by Central Ohio Drug Enforcement Task Force buying less than one gram of crack cocaine, according to court reports. Branstool set Runyon’s bond at $10,000. • Kevin L. Barker, 29, last known address 9215 Lancaster Road, Hebron, was charged with aggravated trafficking in drugs, a fourth-degree felony. On March 26, he allegedly was observed by Central Ohio Drug Enforcement Task Force buying 1.64 grams of methamphetamine, according to court reports. Branstool set Barker’s bond at $10,000.

Do you see what I mean? These are people who were apparently caught buying drugs. And they are charged with drug trafficking? I don't know who is responsible for these charging decisions—either the Central Ohio Drug Enforcement Task Force or local prosecutors—but they don't seem to be supported by the facts. And here's one more bizarre charging example from Licking County:

• Kelly L. Mihelarakis, 32, last known address 633 Mount Vernon Road, Newark, was charged with permitting drug abuse, a fifth-degree felony. Between March 29 and 30, Mihelarakis allegedly allowed an associate to buy about seven grams of methamphetamine on two occasions. Both alleged purchases were made in the vicinity of a Newark City school, according to court reports. Branstool set Mihelarakis’ bond at $5,000.

Excuse me!? "Permitting drug abuse"? This person is charging with not stopping someone else from buying speed? This is a crime? You have got to be kidding. Well, my hat is off to the Central Ohio Drug Enforcement Task Force and the Licking County criminal justice system. With their apparently unjustified charging decisions, they are certainly doing their part to ensure that Ohio's chronic prison overcrowding crisis continues.

Jeralyn Merritt linked in TalkLeft today to a Chicago Tribune article covering what sounds like a fairly spectacular police corruption trial. A police ring allegedly engaged in armed robbery of drug dealers, and as part of that engaging in home invasions, falsifying police reports and lying to judges and juries. The prosecutors, not surprisingly, have gotten one cop -- Corey Flagg, who has pleaded guilty -- to testify against another -- Eural Black, who took it to trial -- in order to get a "deal," e.g., a lighter sentence. And Merritt aptly points out that in such a circumstance -- a known criminal providing testimony, in exchange for the compensation of spending less time in prison -- it's really hard to know whom to believe. There is incredibly strong incentive for the guy making the deal to say anything that will get him off more easily, and by definition the guy making the deal is someone we believe to be a criminal in the true sense of the word. Should such a person's testimony really be the basis for handing out hard-time in prison? Defense are pointing this out, and Merritt asks what the jury is likely to make of it:

What does a jury glean from all this? That all the cops were dirty, or that one cop who got caught is trying to save himself by selling out a clean cop who worked with him?... Does a dirty cop really sell out a clean cop? Or does he, caught in the headlights, just spread the blame to others as dirty as him, in hopes of a shorter sentence?

This sort of deal is made all the time, of course, on countless routine cases. I consider it to be a fundamental corruption of the administration of justice -- it is just too obviously true that one cannot trust testimony given under such a circumstance. The older type of practice is that deals would be offered to informants who provide useful information that investigators can use to then find actual evidence. Instead, drug war prosecutors, with the complicity of judges, have shed their morality and instead use the informants' mere testimony. Hmm, maybe that's one of the reasons some people don't like snitching.

Jeralyn Merritt pointed out on TalkLeft tonight that Jay Apperson -- an infamous drug warrior who was fired from his job working for now-former hard-line Judiciary Committee chairman Rep. Jim Sensenbrenner (R-WI) for an inappropriate intervention attempt in a federal drug case -- is back and that his name has come up in a Washington Post article as a hiree for whom DOJ officials bypassed the usual process. It's not clear whether the irregular hiring is part of the larger US Attorneys affair. Read more about this heartless, awful man and his dark works in our 2005 Chronicle report on the aforementioned Sensenbrenner incident.

I did not notice this open letter from Dr. Hurwitz's brother when it came out late last month, but I think it is worth a read.

... in Alex DeLuca's War on Doctors / Pain Crisis blog. In case anyone was wondering, I disagree with the guilty verdicts. But based on what I've read so far, I can't be too harsh on the jurors this time. The following is an uncomfortable thought to have to state: It's not clear to me that a jury is a competent body for reliably evaluating the extremely complex facts at work in medical care, especially when it intersects with criminal law and the "drug war." This case, and dozens more like it, should never have been brought in a criminal venue. A prominent civil liberties attorney told me a couple of years ago he is working on a book about the unwarranted extension of federal power into civil matters where they have no business, including pain control -- I think I will check back with him to see how it is coming along. The main point is, whatever one thinks of Hurwitz's decisions in this matter, having them reviewed by juries in criminal cases brought by federal prosecutors seeking hard time is an absolutely disastrous scenario for pain patients. The under-treatment of chronic pain is a quiet but widespread tragedy afflicting our country today. Prosecutors deserve the lion's share of the blame -- that profession is desperately need of some housecleaning if any is. Click here -- an article posted in a newsletter we published in DRCNet's early days -- for some history from the first chapter of the Hurwitz saga.

See NYT's John Tierney's initial post-Hurwitz trial blog post. Not the result we were hoping for by any means. On the other hand, the last time was far worse, and according to eyewitness accounts the prosecutors seemed really disappointed too. Judge Brinkema has the power to give a much less draconian sentence or even time served, and her handling of the case seemed pretty reasonable; we'll find out in July what she decides.

This editorial was published as part of our 12/29/06 "Mini-Bulletin." The entire bulletin can be read online here. One of the news items today -- not in drug policy -- was the filing of an ethics complaint by the North Carolina Bar Association against Mike Nifong, the now high-profile prosecutor in the case involving three Duke University lacrosse players who originally faced rape charges and are still charged with kidnapping and sexual assault. The complaint comes on the heels of a letter sent by a member of Congress from the state, asking the US Attorney General to investigate Nifong. No, I'm not about to express a wish related to this case. I'm not familiar enough with it to express what I would consider an informed opinion, and I wouldn't post such an opinion here in this drug policy newsletter if I did. But I do know something about prosecutorial misconduct in general. For example, that a 2003 report by the Center for Public Integrity, "Harmful Error," found that it is widespread but almost never punished. According to CPI, prosecutorial misconduct falls mainly in several categories:

• courtroom misconduct;
• mishandling of physical evidence;
• failing to disclose exculpatory evidence;
• threatening, badgering or tampering with witnesses;
• using false or misleading evidence;
• harassing, displaying bias toward, or having a vendetta against the defendant or defendant's counsel;
• improper behavior during grand jury proceedings.

(There's much more detail about these, of course, on the web site.) Another thing I know about prosecutorial misconduct is that the most common victim of it is black or brown, and poor, is not enrolled at a prestigious university, and doesn't have the best lawyers that money can buy. Media outlets, certainly national ones, almost never focus on their cases. Often they receive the arguably sound advice that innocent or guilty they should really not fight the charges, or the outcome will be much worse. And the Bar Association won't do anything about their cases, because there are just too many. Misconduct in the criminal justice system is by no means limited to the ranks of prosecutors. Police are also serious, perennial offenders. For example, a recent case in Hartford, Connecticut involved a retired police officer who was convicted recently of falsifying an arrest warrant. His colleagues came to his defense, arguing that this was common practice in the department. The judge gave him a special form of probation that will allow him to get his record expunged upon completion of it. The trial has myriad implications. First, there is confirmation by actual police officers, under oath, that police officers constantly break the law in order to make arrests. Second, the officers obviously felt comfortable enough with that fact to state it publicly, before a judge. Third, the judge was okay enough with this to give the officer a sentence that is a little more than a slap on the wrist, but not all that much more. How is police and prosecutorial misconduct to be stemmed if it is tolerated? And if it isn't, how can we in the public have faith in the outcome of any criminal case? One of my many wishes for the New Year is that fewer police and prosecutors commit misconduct, and that more complaints are filed against those who do.