Monday, March 31, 2014
Last week, a Louisiana appeals court upheld the conviction and ten-year sentence (PDF) of Kyle Everett for attempted possession with intent to distribute marijuana. From the decision, it appears that Everett was found with somewhere in the neighborhood of $50 worth of marijuana (it isn't clear from the opinion why Everett was convicted of attempted, as opposed to actual, possession).
Officer Hunt then conducted a safety pat down. The officer felt a bulge in the front of the defendant's pants. He asked the defendant about the bulge, and the defendant told the officer that it was marijuana. The defendant shook his leg, and three bags of what appeared to be marijuana fell out of the defendant's pants leg. One bag contained loose marijuana, and the other bag contained ten individually hand-tied baggies of marijuana. The defendant was taken to the police station, where the green material was field tested positive for marijuana. Officer Birks testified that each little baggie appeared to be a "nickel" bag, indicating a value of five dollars for each baggie. Officer Birks further stated that the amount of marijuana that the defendant had in his possession was excessive for personal consumption.
To make matters worse, the officers who arrested Everett were later found to have planted cocaine on a different suspect (by coincidence, Everett's cousin) about a month after they arrested Everett! The officers pled guilty to perjury and malfeasance charges for the cocaine-planting incident. They received suspended sentences and were fined $5,000 and $2,500.
The contrast between the officers' sentences (no jail time, low fines) and Everett's (10 years) is pretty striking.
In his appeal, Everett challenged the constituionality of the search and argued the trial court should have granted his motion for a new trial "on the basis of the subsequent convictions of Officers Hunt and Birks." (The appeals court rejected both arguments.)
Here's the officers' story about stopping Everett:
"[B]oth officers testified that they stopped their vehicle and approached the defendant and the other unknown man as they were riding bicycles and "goofing off" in the middle of the street. The officers stated that they only sought to talk to the defendant about bicycle safety because the defendant and the other man almost created an accident when the officers turned onto the street. We find that the officers were well within their right to make such a stop."
And here's what these same officers did to Everett's cousin one month after Everett's arrest:
Joshua Hunt and Samuel Birks claimed they arrested Bean on Jan. 25, 2011, while on foot patrol at Jackson’s Landing apartments in Algiers. They said a rock of crack cocaine fell out Bean’s pocket as they searched him.
Bean spent more than four months in the parish jail before Hendrix proved that the officers had lied in a police report on the arrest, and that Hunt had lied under oath during a pre-trial hearing in the case.
According to the suit, filed in December 2011, Birks drove up as Bean left his apartment, handcuffed him and placed him in the back of his patrol car.
Birks allegedly told Bean he was wanted in connection with drug dealing in the area. Birks then got a phone call from Hunt, asking to be picked up at a dentist’s office in the 4000 block of MacArthur Boulevard, also in Algiers, the suit says.
With Bean in the back of their patrol car, the officers returned to the Garden Oaks Drive area to cruise around and ask Bean about criminal activity in the area, the complaint alleged.
Hunt then ran a check on Bean’s criminal history and found he was a parolee with three prior convictions. According to the complaint, Hunt then placed a rock of crack in Bean’s jacket pocket, and the officers drove him to the 4th District station to arrest him.
Did these officers do something similar to Everett? The appeals court recognized the possibility but didn't think it likely enough to warrant a new trial (or, apparently, to cast doubt on the officers' questionable account of their stop/frisk of Everett):
[Everett] maintains his innocence and claims that the officers lied to effectuate his arrest and conviction just as the officers lied in the Alvin Bean case. The defendant's argument, while plausible, is simply argument without any factual support or evidence. We do not find that the trial court abused its great discretion when it denied the motion for new trial based on serving "the ends of justice" pursuant to La. C.Cr.P. art. 851(5).
More about Louisiana's marijuana sentencing practices here.
Tuesday, March 25, 2014
The other week a Colorado appellate court held that Amendment 64 applies retroactively, to at least some pre-passage marijuana possession convictions. Just how many marijuana possession convictions remains uncertain, however.
John Ingold of the Denver Post has an article exploring this question today. The headline says it all: "Marijuana ruling could overturn thousands of convictions — or dozens."
Anywhere from a few dozen to more than 10,000 people could be eligible to have their old marijuana convictions overturned as the result of a landmark Colorado Court of Appeals ruling that applied marijuana legalization retroactively.
Colorado defense attorneys are poring through previous marijuana cases, looking for former clients who might be eligible for such relief, but much depends on how subsequent courts apply this month's ruling. On the surface, the ruling appears to have little reach, but attorneys say it is possible courts could follow the reasoning of the ruling to overturn every marijuana case in the state in which an adult was convicted of a crime that stopped being illegal when the state's marijuana-legalization law went into effect in late 2012.
"I think there are thousands of people who could potentially have their convictions overturned," said Sean McAllister, an attorney who specializes in marijuana cases and who said he is already working with several clients to see if their previous convictions could be tossed.
But, in order for that to be true, Colorado courts will have to adopt an expansive reading of the ruling — a scenario prosecutors see as unlikely.
The full article explains the issues and uncertainty in more detail.
Friday, March 21, 2014
When it comes to marijuana-related violence, most of the focus today is on "the drug cartels"--specifically, it seems, Mexican drug trafficking organizations. Though the attention is well deserved, I sometimes feel like black market violence right here at home is often overlooked. I think this may be because of a belief that most illegal marijuana dealers are just peace loving stoners. There's probably some truth to that.
But it is important to remember that, even so, violence is still a part of the domestic marijuana market. The facts from this Texas appeals court decision from earlier this week provides a sad reminder of the sort of black market violence that legalization could help to reduce:
In 1993, Fortino Delangel was working at a used car dealership from which appellant had purchased two vehicles. After the second purchase, appellant asked Delangel if he knew anyone who sold marijuana. Delangel contacted his brother-in-law, Jose Guerrero, and asked if he knew anyone who sold marijuana. In turn, Guerrero contacted Salvador Vargas. With Delangel and Guerrero acting as middlemen, appellant and Vargas agreed that appellant would purchase approximately thirty pounds of marijuana from Vargas. Delangel understood that appellant would compensate him for his participation, although the precise amount of that compensation was not clear.
Delangel, Guerrero, appellant, and an unidentified companion of appellant, drove in two cars to Room 28 at the Lafronda Motel in South Houston to meet with Vargas. Delangel and appellant rode in separate cars. Delangel testified that he had never met Vargas before that evening.
Vargas initially stated that only one individual could come into the room; he relented when appellant insisted that all four men be allowed to enter. Appellant's unidentified companion stood near the door inside the room and Delangel stood off to the side of the room with Guerrero while Vargas and appellant conducted the drug transaction.
Appellant asked Vargas about the marijuana, and Vargas replied, "[W]here is the money[?]" Appellant "opened his jacket" and said "[h]ere's the money." Delangel did not see what was in appellant's jacket, but assumed it was payment for the marijuana.
Vargas removed a "suitcase" from under the bed and handed appellant a package of marijuana from the bag.
Appellant tore each package open with his teeth, smelled the marijuana, and told Vargas, "[T]his is the money." However, rather than give Vargas the money, appellant pulled out a gun and shot him in the chest. Vargas fell forward onto the floor of the room and died shortly thereafter.
Sadly, cases like this one aren't all that unusual. But I think they are worth trying to call more attention to.
Of course, if someone is intent on committing a robbery changing the marijuana laws won't stop them. But forcing the marijuana trade underground is a recipe for (and certainly increases) this type of violence. Illegal dealers are sitting targets for robberies like this because they have a valuable product and sell it behind closed doors, without video cameras to record customers. As a result, there is a steady stream of robbery/murder cases that center around marijuana deals gone bad. This is one of the more compelling reasons to support legalization, in my view, though it is often overshadowed today by the more pressing black market concern of the drug cartels.