Legislators in California and Massachusetts introduced bills legalizing the cultivation, use, possession and sale of marijuana. In California Assemblyman Tom Ammiano’s bill, which would place a fifty dollar per ounce tax on marijuana would provide 1.3 billion dollars for the state according to a study conducted by the State Board of Equalization.

Likewise the Massachusetts law would regulate and tax marijuana. The Massachusetts law, if passed would raise $100 million for the state coffers. Not only would the legalization of marijuana allow the states to collect significant taxes on it sale but it would also save the states significant money now used to enforce the marijuana laws. Both states would allow those over 21 to use marijuana. Marijuana would remain illegal, at least for the time being, under Federal law.

California has been a leader in the medical marijuana movement since the 1996 passage of Proposition 215 and currently collects 20 million dollars in sales tax on medical marijuana sales.

Prior to 1937 marijuana was legal in the United States. But shortly after the end of prohibition 1n 1933, Congress passed an act making it illegal. But despite hundreds of thousands of arrests the government has not been able to prohibit the use of marijuana and its use continues to grow.

Just as no one in the 21st century would advocate the prohibition of alcohol, the prohibition of marijuana should be abolished. Both drugs if used in excess can result in considerable harm but criminalizing the use, possession and sale of these drugs does not result in any benefit to society. In fact criminalization has only resulted in increased use. Hopefully some of the money saved from the decreased cost of prisons, lawyers, judges, police, and other related criminal justice expenses as well as some of the money collected in taxes on marijuana can be used to treat those who use it excessively.

Jerome Marquis Blanchett is not the brightest person around. He not only robbed an ex police chief but he did it at a convention of police officers in Harrisburg, Pennsylvania. Blanchett pulled a large semi-automatic handgun on the chief in the restroom at the Harrisburg Holiday Inn which was hosting the convention and demanded his money and his cell phone. He then threatened the chief that he would kill him if the chief followed him. The victim, John Comparetto, using a gun from his ankle holster, which Blanchett did not take from him, quickly, with the help of several other officers at the convention arrested Blanchett and took him to the Dauphin County Jail where he is being held on a million dollar bail.

At the time of the robbery Blanchett was out on bail for four other robberies. You would think that someone who had already been arrested for four robberies would know better than to try a fifth. No details were provided on the other four robberies but with Blanchett’s luck he probably tried to rob a judge in open court or President Obama while he was swearing in a new head of the Secret Service.

Two priests stole over $8,000,000 from the collection plate and bequests at the Saint Vincent Ferrer Catholic Church in Delray Beach, Florida. Much of the money stolen was beyond the statute of limitations. However both priests who were from Ireland were convicted and sent to prison.

John Skehan, 81 received 18 months in prison and seven yearrs probation after pleading guilty to stealing over $100,000. Francis Guinan, 66 was sentenced to four years in prison after being found guilty at trial of stealing under $100,000. Judge Krista Marx said he exhibited “unmitigated greed and unmitigated gall..”

Some of the money was used for gambling trips to Las Vegas and the Bahamas. Skehan owns a cottage and a pub in Ireland as well as a condominium on Singer Island Florida.

The Supreme Court ruled yesterday that the failure of an attorney to object to the government’s disavowal of a plea bargain is subject to the plain error rule.

Normally the failure of a side to object to an error before the trial court forfeits the right to raise the issue on appeal. Under the Plain Error Rule (Section 51(b) of the Federal Rules of Criminal Procedure) an issue may be raised on appeal even if it was not raised in the trial court under limited conditions. To obtain relief under rule 52(b) one must comply with four prongs. They are 1) there has been an error or defect that has not been waived by the defendant, 2) the error must be clear and obvious, 3) the error must have affected the defendant’s substantial rights, and 4) it can be granted only if the appellate court, using its discretion, finds that it seriously affected the fairness, integrity or public reputation of the court.

In Puckett v. United States, at the time the plea was taken, the U. S Attorney agreed that in exchange for a guilty plea in a bank robbery case the government would agree to a three level reduction in the sentencing guidelines for acceptance of responsibility and that Puckett would be sentenced at the bottom of the guideline. But due to the defendant’s health problems three years passed before sentencing. During that time Puckett admitted to further criminal activity. As a result at sentencing, the government refused to agree to the three level reduction and the Court said it would not give the reduction, in any case, because of the intervening criminal behavior.

At sentencing Puckett’s lawyer failed to mention the plea agreement and failed to request that Puckett be allowed to withdraw his plea.

On appeal the Supreme Court found that Puckett met prongs one,two and four of Rule 52(b). But he did not meet prong three: that a substantial right be affected because the the judge was not going to grant the three level reduction regardless of what the U. S. Attorney did.

Well now comes the habeas for incompetence (IOC) of counsel. But see yesterday’s post on IOC. The seven justices in the majority here (Scalia, Roberts, Ginsberg, Breyer, Alito, Thomas, and Kennedy) seem to have decided that Puckett was not prejudiced by the government’s turn around and that means trouble under Strickland.

The Supreme Court reversed a finding of incompetence of counsel (IOC) made by the Ninth Circuit in Knowles, Warden v. Mirzayance. Mirzayance was convicted of first degree murder of his 19 year old cousin. Under California law the trial was bifurcated. During the first part of the trial the jury found Mirzayance guilty of murder. At the beginning of the second phase Mirzayance, on the advice of counsel, waived his right to a trial on whether he was not guilty by reason of insanity (NGI). The issue on habeas was whether his trial attorney was incompetent when he advised Mirzayance to waive the NGI defense.

Counsel’s plan at trial was to convince the jury that due to his mental condition, Mirzayance could not form the intent to murder his cousin and therefore he was guilty of only second degree murder. When the jury rejected the mental health evidence and found Mirzayance guilty of first degree murder, his lawyer felt that any NGI defense was futile and urged him to waive his right to a trial on the NGI defense.

The lead Supreme Court decision on incompetence of counsel is Strickland. Under Strickland, in order to reverse a conviction the court must find on habeas that the attorney did not perform as reasonably competent counsel would act and that the defendant was prejudiced as a result. The Ninth Circuit instead of applying Strickland found that counsel was incompetent in that there was no strategic reason for surrendering the only possible defense which could help Mirzayance. After all, he had already been convicted of first degree murder and there was no downside to going ahead with the NGI phase of the trial. The chances of winning might not have been great but there was nothing to lose.

On habeas the Federal courts will not intervene unless the state court decision was contrary to or involved an unreasonable interpretation of Supreme Court precedent. Here it was not the state court but rather the Ninth Circuit that misinterpreted Supreme Court precedent.

Assuming that the Supreme Court is correct and that the trial counsel’s performance failed to meet the Strickland standard in that it did not show that counsel either failed to perform as a reasonably competent attorney would perform or that Mirzayance was prejudiced since the jury rejected the mental health evidence the first time around.

Regardless of whether or not counsel met the Strickland
standard, counsel acted poorly. When you have only one defense and you have nothing to lose, particularly in a first degree murder case, you must go with it. Besides surrendering the only chance your client has to prevent a life sentence, the failure to use the defense, can only result in a habeas, a civil trial for IOC and considerable bad will. Any reasonable attorney would use the Ninth Circuit’s “nothing to lose” standard. But the Supreme Court, at least in this case is not willing to accept it.

Alameda County Superior Court Judge Don C. Clay today postponed the Preliminary Examination in the case of former Bay Area Rapid Transit (BART) police officer Johannes Mehserle for the New Years Day murder of Oscar Grant at the Fruitdale BART station following the weekend killing of three Oakland police officers. A fourth officer is brain dead following the incident this weekend in which a parolee is alleged to have shot the four officers following an automobile stop. Defense attorney Michael Rains said that he was close to two of the officers and emotionally he could not give it his best at the Preliminary Examination scheduled for the 23rd.

The American Constitution Society has published another essay detailing the failure of the War on Drugs which is celebrating the fortieth anniversary of President Nixon’s declaration.

Just about everyone agrees that, unless you measure its success by the number of people put in prison or the billions of dollars spent annually, the war has failed. The purpose of the war was to cut back on drug use. Yet a WHO study of 17 nations shows the United States has the highest rate of use of illegal drugs. This is despite the fact that over the past twenty years the number of Americans incarcerated has doubled and one quarter of those in prison are there for drug offenses.

In the ACS report Alex Kreit proposes a number of short term changes in the law and the way we spend money that would have an immediate affect upon our society for the new administration. He points out that during the last forty years we have spent a lot of money on supply reduction and insufficient funds on demand reduction. Yet the dollars spent on demand reduction are much more effective than those spent on supply reduction. He suggests spending less money on ineffective supply reduction programs such as source-country crop eradication programs and more money on treatment programs such as the Adult, Juvenile and Family Drug Court Program. Even when the eradication in one county is successful the growth of poppies or coca just moves to another country. Kreit points out that the drug courts are not perfect but they have positive results and are less expensive.

Among the immediate modifications of the law that he recommends are amendments to the mandatory minimum drug sentence laws, Federal encouragement of state medical marijuana laws, lifting the 1988 ban on the use of Federal money on needle exchange programs, and repealing the ban on financial aid to students with drug convictions. Under the mandatory minimums, sentences are base on the quantity of narcotics. Thus a mule who drives a truckload of drugs across the border has the same mandatory minimum sentence as the drug kingpin who owns the drugs. Kreit recommends that the mandatory minimums be amended in such a way that they exclude lower level and mid level participants. Needle exchanges have proved to be financially effective and they are an important tool in the fight against AIDS. The ban on financial aid affects mostly the poor and middle class and is counter productive in decreasing drug use.

One glaring omission in his list of immediate changes is the need to amend the public housing one strike law. Under the HUD rule families get evicted from public housing when any member of the family is arrested for violation of the law. Its not limited to the immediate family. It includes arrests of guests and those under the control of a member of the household. Thus if a grandchild who spends summers with his grandparents gets arrested for bringing marijuana to school the grandparents can be evicted from public housing. Certainly in the case of drug offenses the rule needs to be modified to limit it to members of the household and to the possession of drugs in the residence.

But the bigger question needs to be answered and it needs to be answered now. It is not too much to ask that a president who ran on the need for change, appoint a blue ribbon commission including doctors, scientists, law enforcement, and specialists in addiction to propose a complete reworking of our drugs laws. While Kreit’s immediate changes make some sense it is more important that the commission be appointed and be given one year to propose significant changes in our drug laws.

The police report says that Raymond L. Bell after being stopped, allegedly for a DUI, lost his balance and used his arms to steady himself. It says he was driving 85 mph is a 40 mph zone and could not stop when the police officer turned on his siren.

The video on the police car shows Bell walked steadily and stopped the car within 40 second of the officer turning on the siren.

The arresting officer was Chicago police officer, Joe D. Parker, who has won awards for being among those officers who have arrested more people for DUI’s in the Chicago area.

Parker’s report says Bell staggered and that his gait was unsteady. Again the video contradicts Parker. Parker claimed that Bell flunked the “walk and turn test’ but the video show that after some initial confusion, Bell did fine.

Bell asked for a breatyalyzer. Parker refused.

On February 20, seven months after the initial arrest prosecutors dismissed the case. Parker has been put on desk duty pending the results of an internal investigation.

Are Parker’s lies unique–no. Another Chicago officer, John Haleas, who like Parker, has been commended by the Alliance Against Intoxicated Motorists, as a Top Cop for the number of his arrests has been criminally charged for filing false reports and 156 people arrested by Haleas have had their charges dismissed.

One question this raises is why would an officer lie about an arrest when the arrest is on tape? I don’t know the answer to this question. Do they believe that prosecutors will let them get away with anything in order to get the police union’s endorsement when they are up for reelection. Do they believe that defense attorney are so lazy that they will not look at at the tape or listen to their clients? Have they been getting away with it for so long that it doesn’t matter? After all it took seven months from the time of Bell’s arrest until the charges were dismissed and Haleas made hundreds of arrests before charges were brought.

But the more important question is why doesn’t every police car in the country have video machines that video arrests. As TChris says in Talk Left: The Politics of Crime:

When squad car cameras are available, the recordings usually tell the tale: either the driver looks drunk or he doesn’t. When the picture matches the police report, the driver pleads guilty. When it doesn’t, the case is often dismissed

Not only would many innocent people be protected (Remember Rodney King and the arrest of Bay Area Rapid Transit police officer, Johannes Mehserle but many guilty individuals would be more inclined to plead guilty, early in a case, saving the government more money than the cost of the video equipment, when they know the video shows that they cannot win at trial.

The Texas Court of Criminal Appeals found that Andre Lee Thomas who plucked out both of his eyes, eating at least one of them was not insane under Texas law. It upheld his conviction for the murder of his estranged wife’s thirteen month old daughter and the imposition of the death penalty.

Thomas starting drinking alcohol at ten and smoking marijuana at thirteen. He dropped out of school in ninth grade. In the months before he killed his wife, son, and his wife’s daughter, his behavior became increasingly bizarre. He put duct tape over his mouth so that he wouldn’t talk. He said he was experiencing deja vu and that god was talking to him. He had auditory and visual hallucinations of god and demons. He overdosed on pills. Twice he was taken to mental health facilities but each time he walked away before he was seen.

On March 25th he stabbed himself. The next day he went to Laura’s,his estranged wife, apartment. His wife and her boyfriend, Bryant, were listening to religious tapes. He thought god wanted him to kill Laura because she was Jezebel. God also wanted him to kill his four year old son who he saw as the anti-Christ and Laura’s thirteen month old daughter, Leyha because she was also evil. He saw Bryant twisting an extension cord and he thought that was a sign that Bryant wanted to kill Laura, Andre decided he had to kill Laura before Bryant killed her. He went into Laura’s kitchen to find a knife but he thought it was not the right time.

The next day. he heard god’s voice tell him that he needed three different knives to kill Laura and the two children in order not to cross contaminate their blood and allow the demons inside them to live. He walked to Laura’s He saw Bryant drive by and wave at him. He took this as a sign that he was doing the right thing. He killed Laura and the children using a different knife on each one. He cut out the hearts of the children and put them in his pocket. He meant to do the same with Laura’s heart but instead he cut out part of her lung. He then stabbed himself in the heart but he was able to walk home. When he got home he changed his clothes and threw the hearts into the trash.

He walked to his father’s house to use the telephone. He planned to call Laura who he just killed. Instead he called her parents and said he needed help. He walked back to his trailer where he confessed to his girlfriend and his cousin who took him to the police station.

Five days later, while in jail reading the bible, he gouged out one eye.

He was sent to Vernon State Hospital. After five weeks on medication he was found to be competent.

At trial the jury was presented with two views. His lawyer claimed he was not guilty by reason of insanity. To prove this they had to show that he did not know that what he was doing was wrong. The prosecutor’s position was that the hallucinations and the murders were a result of voluntary intoxication even though there was very little drugs in his body at the time of the murder.

The jury believed the voluntary intoxication theory and he was sentenced to death. On habeas Texas’ highest court upheld the verdict finding that there was sufficient evidence for the jury to convict.

Last December, while on death row he plucked out his good eye and ate it.

A recent Missouri case reported in Fourth Amendment.com State v. Allen illustrates the need not to let police into your house or your car or anywhere else that you have an expectation of privacy. The police conducted a “knock and talk” at the residence of Amy Jo Dean Rig. A “knock and talk” occurs when the police believe that criminal activity, in this case drug use and sales, is occurring in a residence. They do not have probable cause to search the residence or to get a search warrant. If they had probable cause they would go ahead and get the search warrant. But since they don’t have probable cause they knock on the door and attempt to either get information from the resident that gives them probable cause or even better yet get the resident to let them into the house to search for contraband.

In this case Rig initially said “no.” But police are taught to be persuasive talk. Many department have officers who specialize in talking their way into a residence. In this case they used a female officer. Presumably they thought that the female was more likely to get into the apartment.

The officers asked Rig if there were drugs in the apartment. She said “no.” In a not unusual move the officers told Rig to let them in to show that she was telling the truth. She continues to say, “no.” The officers start talking about Rig’s children and how bad it is to have drugs around them. Eventually they get her to admit that she has a marijuana pipe. The officers ask if they can come in and get it. They will only write her a ticket if they get the pipe. She says she’ll get it and give it to them. They say “for officer safety purposes” they want to come in and get it. At this point Rig gives up and says, “yes.” They come in. One of the officers stays in the living room with Rig’s guests. the other follows her to the bedroom. She goes to the bedside table and quickly takes the pipe out of a drawer and gives it to them.

Now that they have evidence they wonder what else is in the drawer. Thi\ey get permission to search the drawer. They find a white powder used for cutting drugs. Well now that they have probable cause, they give Rig the choice of either giving further consent or they will get a search warrant. The cat is out of the bag and its too late. They get the consent and search the house. They find a commercial quantity of methamphetamine. Her boyfriend is arrested and convicted.

If Rig had said “no” at the door and stuck to her guns or if she said I want to talk to a lawyer before I let you in my house, the search would not have happened and no one would have been arrested.