Articles Tagged with misdemeanor

In April of 2010, Mr. Cornell had his home raided by police where 1/16th of an ounce of marijuana had been found – not enough to roll a joint. None of the potential jurors called for the case where willing to consider convicting someone for possessing a very small amount of marijuana.[1]

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November 16th 2010, Touray Cornell from Montana, breathed a sigh of relief and smiled as Judge “Dusty” Deschamps convened his court to report that out of all the potential jurors who had been called, not one would be willing to convict Mr. Cornell. Dumbfounded by the jurors’ decision, the District Attorney quickly spoke to Mr. Cornell’s defense counsel and an immediate plea deal was made. Mr. Cornell walked out free without admitting guilt and without probation.

Mr. Cornell witnessed the power of Jury Nullification, a show of citizen’s power through the legal system have a long and storied history in America. it is the power of Jury nullification and Mr. Cornell saw a version of that power first hand.

With the passing of SB 339 in 2015, otherwise known as the “Texas Compassionate Use Act,” Texas joined more than three quarters of the states in establishing a medical marijuana program. However, many are unaware that prior to 2015, derivatives of marijuana were legal in the state. example-2-300x159

When Marijuana isn’t Marijuana


Under Texas law, marijuana is defined in the Texas Health and Public Safety Code as:

dreamstime_xs_22155154.jpgDespite a relatively low crime rate during the last decade, between 1970 and 2010, Texas’ prison population increased by 995%, even though the state’s population only increased by 124% during that same time period. However, Texas’ record-setting incarceration rates are not accidental–meaning this trend can still be reversed. Critics of excessive legislation and prosecutorial strategies such as mandatory minimum sentences stress that our excessive prison population is a direct result of the Texas Legislature constantly criminalizing new acts. Over the last decade, the Legislature has created an average of 40 new felonies during each legislative session while simultaneously increasing penalties for existing crimes. At present, Texas recognizes over 2,500 felony crimes.

Another prime contributor to Texas’ prison population explosion is unarguably the U.S.’s failed war on drugs. At this point, we can all agree that “prison therapy” is hugely ineffective in helping defendants cope with addiction. Considering the fact that over 70,000 people both enter and leave Texas state prisons every year, only 22% of which have been convicted of a violent crime. It should be imperative that we are taking steps to treat and reform inmates during their served time, rather than hoping that imprisonment itself is enough to deter addiction and future bad behavior. Treating a public health problem as a criminal problem is not going to end substance addiction, especially when past imprisonment keeps a person disenfranchised within their community, often without the ability to find a job or place to live. And all too often, the communities that are most impacted by this injustice are young minorities, with a new study finding that by age 23, 49% of black males and 44% of Hispanic males have been arrested, compared with only 38% of white males.

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iStock_000006746569XSmall.jpgUnlike federal law, which more broadly allows officers to make warrantless arrests based on probable cause, Texas laws specify the circumstances when officers can make arrests without a warrant. Understanding these circumstances may better help Texas residents understand the limitations of their rights in police encounters. Knowing the scope of police power can also help Texas residents make smarter choices in their day-to-day actions to avoid undue arrest and imprisonment. There are seven primary types of arrests not requiring an arrest warrant.

On View Arrests: An officer can arrest an individual if the officer views that individual committing any crime in the officer’s presence or within the officer’s view. For an officer to use this type of arrest, the officer must view some part of the crime and play some role in the arrest.

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iStock_000011009457_ExtraSmall.jpgPresident Obama thinks marijuana is no more dangerous than alcohol and is less dangerous in terms of its impact on consumers. In a January 2014 interview with the New Yorker, the president compared marijuana to other vices such as alcohol and cigarettes, stating “As has been well documented, I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol.”

While the president doesn’t find the use of marijuana alarming, he is very bothered by the fact that minorities, especially minority youth, have a radically disproportionate rate of arrest and imprisonment. “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” Obama said. “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties…we should not be locking up individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.” A new study released this month supports the president’s concerns, finding that nearly half of all black males are arrested by the time they reach the age of 23.

What is even more surprising is that notoriously conservative Texas governor Rick Perry has also shown a recent liberalized attitude towards marijuana. Perry, speaking to the World Economic Forum in Switzerland, defended Colorado and Washington state’s vote to legalize the drug, saying it is a matter of states’ rights. Although Perry sidestepped questions of whether he supported the decriminalization of marijuana, he promoted Texas’ drug courts, which offer treatment instead of incarceration for non-violent offenders, as an example to other states and nations.

iStock_000001725183XSmall.jpgA recent report by the Partnership at Drug Free, formerly known as the Partnership for a Drug Free America, found a solid majority of those polled by the organization itself, 52 percent, favor marijuana decriminalization and a vast majority, 70 percent, favor medical marijuana. The Partnership interviewed 1,603 adults. The majority of these adults (1,200) are parents of children who are between 10 and 19 years old. The report found 72 percent of mothers and 67 percent of fathers support medical marijuana.

One may be surprised that an organization focused on combating teenage drug use is publicizing report results showing favorable parental views on marijuana law reform. A deeper look into the results of marijuana law reform reveals that marijuana reform could help combat teenage marijuana use and thus align with the goals of the Partnership. For example, since Colorado passed marijuana laws, marijuana usage among Colorado teenagers has gone down. Colorado, probably the most marijuana friendly state in the nation, has a teenage marijuana use rate that is below the national average. Despite the beliefs of marijuana reform opponents that claim pro-marijuana laws will increase adolescent marijuana use, a recent report revealed there is no visible link between states legalizing medical marijuana and children increasing marijuana consumption.

The Partnership has had a noticeable history of focusing especially on the dangers of marijuana, even though the harms caused by alcohol, tobacco, and pharmaceuticals far outweigh the harms of marijuana use. Past funding sources of the Partnership may explain the lack of particular focus on drugs more destructive than marijuana. According to Fairness and Accuracy in Reporting (FAIR), the Partnership has accepted funding from numerous tobacco, alcohol, and pharmaceutical companies. These companies include the Budweiser, Michelob, Busch Beer Company: Anheuser Busch, the Marlboro and Virginia Slims company: Philip Morris, the Camel, Salem, Winston cigarettes company: R.J. Reynolds, as well as firms associated with pharmaceuticals like Bristol Meyers-Squibb, Merck & Company, and Proctor & Gamble. The Partnership reportedly ceased accepting alcohol and tobacco funding, but continues to receive support from major pharmaceutical firms, despite the fact that pharmaceutical drugs cause the most overdose deaths compared to all other drugs.

CYMERA_20130829_142314.jpgAn investigation by Reuters revealed that a secretive unit of the Drug Enforcement Administration (DEA) is using information gathered by Intelligence Agencies to facilitate criminal investigations of US residents. The information gathered by intelligence agencies, including the NSA, CIA, and Department of Homeland Security, are supposed to be used for national security and counter-terrorism purposes. Instead, the DEA unit is using intelligence information to go after individuals who are not connected to terrorism. This DEA unit, named the Special Operations Division (SOD) was created in 1994 to target Latin American drug cartels, but since then has warped into a domestic spying operation utilizing unconstitutional powers and procedures.

Examples of the unconstitutional procedures used by SOD include “parallel construction.” The practice of “parallel construction” was exposed by documents reviewed by Reuters. “Parallel construction” is where law enforcement officers, once they begin an investigation based on information from SOD, reconstruct the investigative trail to cover up the information’s origins, and thus deceive the defendant or the defendant’s defense attorney, along with prosecutors and judges involved in the criminal case. The documents also reveal that federal agents and local police are specifically instructed to “omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Experts, including Harvard law professor and former federal judge Nancy Gertner, believe that this practice violates a defendant’s constitutional right to a fair trial. If the defendant or the defendant’s defense attorney are not aware of how the investigation began, they cannot know how best to explore potential sources of exculpatory evidence – information that may reveal entrapment, mistakes or biased witnesses. Speaking to Reuters, former federal prosecutor Henry E. Hockeimer Jr. criticized SOD’s powers, saying “you can’t game the system, you can’t create this subterfuge. These are drug crimes, not national security cases.”

US law enforcement has imprisoned millions of people on drug-war convictions over the last 20 years. Due to their authorized yet unconstitutional deception caused by “parallel construction,” the number of those drug cases which resulted from evidence collected by spy agencies will never be known. The Reuters article, which broke this story, quotes DEA officials as saying that the DEA has utilized the “parallel construction” procedure “virtually every day since the 1990s.” The amount of phone data the DEA has collected now surpasses the amount of data collected by the National Security Agency (NSA).

iStock_000009135835_ExtraSmall.jpgIn Texas, Marijuana is an illegal substance that is subject to forfeiture by the state. While this may be of no surprise, you may not be familiar with the forfeiture process and how it works. The government has different modes and methods of dealing with controlled substances. Some of these processes do not even require a court order, they occur automatically due to statutory regulation. This article discusses and describes the process the government implements after it seizes controlled substances, such as marijuana.

Let’s look at a hypothetical traffic stop situation. A driver gets pulled over and the officer looks in his back seat and sees a sizable amount of marijuana. After the driver gets arrested, the officer seizes the marijuana and seals it in an evidence bag. It is at this point that the seized marijuana is put into the custody of the police. This entire process, from seizure, to storage, record keeping, court, and then finally destruction is called the “Chain of Custody” (COC). There are very detailed and strict rules regulating how the police can handle evidence while it is in their custody. If they break one of these rules, the “chain” of custody is broken and the compromised evidence becomes subject to objection and scrutiny.

Assuming the COC is maintained, the case will end with a verdict. The seized marijuana is then subject to “summary destruction”. Tex. Health & Safety Code Ann. § 481.154 . Summary destruction is a process that differs among departments, but there are three certain rules that process must follow: “(1) more than one person to witness the destruction of the property or plants; (2) the preparation of an inventory of the property or plants destroyed; and (3) the preparation of a statement that contains the names of the persons who witness the destruction and the details of the destruction.” Id. After the seized marijuana is destroyed, “a document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.” Id. With this document, the seized marijuana is recorded and properly disposed of per statute.

2014-01-12 15.06.54.jpgThere is no question that the major tobacco industries for a time were grossly irresponsible in their promotions and commercial sales of tobacco products. Tobacco industries misled the public on the harmful effects of tobacco use, marketed the product to adolescents, and even persuaded physicians into endorsing cigarettes as medicine. A concern of many individuals regarding the legalization of marijuana is that the marijuana industry will become another incarnation of the tobacco industry, bringing with it more corporate greed rather than public good. As major investors, such as a former Microsoft manager, plan to pour millions of dollars into the legal marijuana market, and as investor groups predict marijuana to become America’s next great industry, the concern of the possible emergence of “Big Marijuana” akin to “Big Tobacco” seems well warranted. “Big Marijuana” already exists in the form of drug cartels. Well-drafted regulations could prevent gross irresponsibility in the legal marijuana industry.

Mexico’s biggest agricultural import is marijuana, annually creating billions of dollars of revenue for drug cartels. Estimates from Mexico’s Attorney General’s office reveals that the profits from the marijuana exported in the US make up about half of drug cartels’ overall revenues. Not only are drug cartels producing illicit marijuana in Mexico, they are growing marijuana in national parks inside the U.S., through sophisticated networks designed to avoid the difficulty of smuggling drugs across the border. Notorious for their brutality and criminal infestations of all elements of Mexican society, as well as rampant encroachments into the U.S., the state of the marijuana market as it exits under marijuana prohibition only fuels organized crime to grow to powerful sizes. As a result of marijuana legalization victories in Colorado and Washington state, estimates reveal that drug cartel profits could be substantially reduced. Even if marijuana legalization nationwide somehow creates greedy profit-seeking corporations, such corporate-control will nonetheless be a much better alternative to our current system of cartel-run markets. Marijuana legalization could create a tobacco-type industry for cannabis conglomerates, however stringent regulations imposed on emerging marijuana markets may control this problem.

For instance, Washington State mandates that only 334 marijuana stores can operate across the state. An individual can only own up to three retail marijuana licenses. When an individual does hold multiple licenses, he cannot have more than 33% of the licenses in a county. Retail license holders cannot be licensed to produce marijuana. Regarding advertising and labeling, ads or product labels cannot be misleading, encourage over-consumption, claim that there are therapeutic benefits, or show children, toys, child-like cartoons, or any such imagery which is meant to encourage child marijuana use. Marijuana stores are not able to advertise within 1,000 feet of schools, on buses, or on public property, and all advertising shall have health and safety warnings. Such strong restrictions on the marijuana industry should prevent the dangerous concentration of corporate power of the kind once wielded by the tobacco industry.

iStock_000006052358XSmall.jpgThe right to remain silent is a hot topic of Constitutional rights. In a brief nutshell, this is how the right to remain silent works. A defendant’s silence cannot be used in Court to show his or her guilt. When a defendant can invoke this right, however, is a little bit of a tricky concept. First and foremost, the defendant has to be under arrest to invoke his right to remain silent. If a police officer arrests a suspect, the officer must read the suspect his Miranda rights, which includes the right to remain silent. There are other areas where silence receives different Constitutional treatment, such as the right to remain silent and not testify during trial. A criminal defendant’s silence is usually protected by the Constitution and not allowed to be used by the prosecution to prove guilt.

However, a recent Supreme Court decision has created new limits and rules on the right to silence. This decision is based on a recent Texas criminal case involving Genovevo Salinas. The defendant in this case was at a party that got out of hand. Shots were fired at the party and two men were killed as a result. The police found Salinas at the party and brought him in for questioning. Salinas had a shotgun that he turned over to the police and he began answering their questions. He was being cooperative until the police asked him why the shotgun shells that were found at the crime scene matched Salinas’s shotgun. Salinas did not answer this question and instead remained silent. At this point, Salinas was not under a formal arrest and was not given his Miranda warnings as a result.

Salinas was eventually charged with murder. During his trial, the prosecution aggressively used his silence about the shotgun during closing arguments. Salinas was convicted and appealed his case. His case eventually made it to the Supreme Court. When it reached the Supreme Court Justices, the main issue was whether the defendant’s silence could be used during the closing argument. The Court held, in a 5-4 decision, that the silence was usable because it was pre-Miranda silence. The Texas Court of Criminal Appeals explained that “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.” Justice Samuel Alito further explained “Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection must claim it.” So if you remain silent before you get arrested, that silence can be used to show your guilt unless you CLAIM your right to remain silent.