Urdedpal
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .
The First Amendment
IN THE OFTEN CONSTRICTED MINDS of most of our country's politicians and judges, Cannabis is a vile and evil plant. Despite the fact that preparations from the Cannabis plant have be used for thousands of years to facilitate religious understanding, our country's lawmakers and judges have consistently refused to offer any protection to religiously motivated marijuana users.
At present, all but a few trial courts in our country will refuse to allow the presentation of a religious defense against a marijuana charge. Unless you have a magical attorney and wind up in front of a tremendously courageous and independently-minded judge, you very likely will be barred from presenting the issue for consideration by the jury.
On December 22, 1965, Dr. Timothy Leary was arrested by U.S. Customs officers after an inspector recognized him and spotted "some vegetable material and a seed on the floor of the automobile." At his trial, Dr. Leary successfully introduced evidence of his impressive academic background and of his membership in the well-established Brahmakrishna sect of Hinduism, members of which use marijuana in their religious rituals. Dr. Leary presented a great deal of evidence backing up his claim of religious use, including the testimony of a Hindu monk, an expert in psychopharmacology, and a medical doctor. Once all the evidence was presented, Dr. Leary's attorney requested a jury instruction that would permit the jury to acquit Dr. Leary if it found that his religious claims were honest and made in good faith. The judge refused to give the jury the instruction, and the jury subsequently found Dr. Leary guilty of several marijuana crimes.
Dr. Leary appealed his convictions arguing that his religious use of marijuana was protected by the Free Exercise Clause of the federal constitution, and that the judge unfairly refused to instruct the jury regarding the religious defense.
The appellate court rejected his argument, holding that despite the clear language of the Free Exercise Clause, there was no religious defense to the anti-marijuana laws.
The published opinion of the court of appeal is an example of the manner in which judges often kowtow to the politics and hysteria of the War on Drugs. Casting marijuana as a destroyer of society, the court asserted that "the paramount interest in the enforcement of the laws relative to marijuana is the protection of society." Citing 30-year old "evidence," used to support the Marijuana Tax Act of 1937, the court asserted that marijuana users often engage in "criminal episodes of terrible character." The "evidence was voluminous and convincing," wrote the court, "that Marijuana is a serious evil to society."
With such a mind-set firmly in place, the court turned to Dr. Leary's proposal for a religious defense, and stated what continues to be the bottom line on the subject:
Congress has demonstrated beyond doubt that it believes marihuana is an evil in American society and a serious threat to its people. It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marijuana laws would be meaningless, and enforcement impossible. The danger is too great, especially to the youth of the nation, at a time when psychedelic experience, "turn on," is the "in" thing to so many, for this court to yield to the argument that the use of marijuana for so-called religious purposes should be permitted under the Free Exercise Clause. We will not, therefore, subscribe to the dangerous doctrine that the free exercise of religion accords an unlimited freedom to violate the laws of the land relative to marijuana. (Leary v. US [5th Cir 1967] 383 F.2d 851.)
Anti-marijuana hysteria such as that demonstrated by this decision, is alive and well today. Courts faced with religiously motivated marijuana users have distinguished religious belief from religious practice or action. Applying this distinction to the Free Exercise Clause, the courts, including the United States Supreme Court, have ruled that while religious beliefs are fully protected by the constitution, religious actions, even when sincerely based on those beliefs, may be regulated or banned in order to protect a "compelling state interest."
Given the hysteria and anti-marijuana propaganda promoted by the hawks in the War on Drugs, it is no surprise that every court which has applied such an analysis to a marijuana case has found that the "compelling state interest" in enforcing the anti-marijuana laws outweighs whatever burden falls on those who claim to use marijuana for religious purposes.
The rules regarding the religious use of marijuana have not improved over time. In 1990, the United States Supreme Court decided a case involving the sacramental use of peyote by a member of the Native American Church. In a decision in which the Court ignored decades of established free-exercise jurisprudence and created new rules just for the case, the Court held that antidrug laws do not violate the Free Exercise Clause so long as they do not specifically target religious practice. In other words, the Supreme Court is prepared to uphold any general criminal law despite its impact on Free Exercise, so long as the law was not specifically crafted to impede religious practice. Obviously, under such a test, the anti-marijuana laws will never run afoul of the Free Exercise Clause.
Justice Blackmun, joined by Justices Brennan and Marshall, wrote a powerful dissenting opinion calling the majority's decision "a wholesale overturning of settled law concerning the Religion Clauses of our Constitution." Unfortunately, today, none of the three dissenting justices remain on the court.
The relatively recent addition of Ruth Bader Ginsburg to the United States Supreme Court leaves little hope that the Court will become more favorable to religiously motivated drug use any time in the near future. In 1989, Ms. Ginsburg, then a federal appeals court judge, upheld the DEA's refusal to grant a man's petition seeking a religious exemption from the federal anti-marijuana laws. In that case, Carl Olsen, a member and priest of the Ethiopian Zion Coptic Church, petitioned the DBA for a religious exemption to the federal anti-marijuana laws The EZCC traces its origins back 6000 years and has a history of sacramental marijuana use. The DEA denied Mr. Olsen's petition, stating in part:
In 1984, an estimated 7,800 to 9,200 tons of marijuana were illegally consumed in the United States. It has been estimated that over 20 million people in the United States use marijuana on a regular basis. Marijuana is a major public health problem in this country. Accordingly, the investigation and prosecution of marijuana traffickers, the interdiction of marijuana smuggling and the eradication of the drug at its source continue to be major concerns of drug law enforcement both domestically and internationally.
In view of the immensity of the marijuana abuse problem in the United States and the magnitude of the criminal activity surrounding the prosecution and trafficking in this substance, the Administrator of the Drug Enforcement Administration concludes that the interest of the Ethiopian Zion Coptic Church in the ceremonial use of marijuana is outweighed by the compelling governmental interest in controlling the use and illegal distribution of marijuana in the United States.
Mr. Olsen did not give up. He continued the fight by filing suit against the DBA. The case eventually ended up in the federal court where Ruth Bader Ginsburg was a judge prior to being appointed to the United States Supreme Court. Judge Ginsburg followed the predictable path first set out in Dr. Leary's case, parroting another court's finding that "every federal court that has considered the matter . .. has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare."
She concluded that it was simply not feasible to permit a religious exemption for marijuana use because, under Mr. Olsen's proposal, the government would have to supply marijuana to the church on a regular basis, and it would be nearly impossible to monitor the church members' use of the marijuana. She noted that between 1980 and 1987, the DBA seized over 15 million pounds of marijuana, and expressed her concern about "the immensity of the marijuana control problem in the United States." Judge Ginsburg concluded, "the DBA cannot accommodate Olsen's religious use of marijuana without unduly burdening or disrupting enforcement of the federal marijuana laws ... [TJherefore ... the Free Exercise Clause does not compel the DBA to grant Olsen an exemption immunizing his church from prosecution for illegal use of marijuana." (Olsen v. DEA [DC Cir. 1989] 878 F2d 1458.)
Evidently, unless the Catholic Church makes a radical departure from its current practice, and replaces communion wine with communion marijuana, the courts will remain willfully blind to the spiritual importance of the Cannabis plant. It's particularly aggravating to note that during Prohibition, the federal government found it completely manageable to exempt the Roman Catholic Church. To put it very simply, to date, nobody has presented a winning religious defense to a marijuana crime. Likewise, those who have directly petitioned the DEA for a religious exemption from the federal anti-marijuana laws have received either denials or no response at all. (National Prohibition Act, Title II, Ch. 85, section 3, 41 Stat. 308 [1919].)
The Religious Freedom Restoration Act
Faced with the Supreme Court's decision in the 1990 peyote case discussed above, numerous religious groups banned together, lobbying Congress for a federal law that would protect religious practice by reestablishing the compelling state interest test in free-exercise cases. As a result of the efforts of these groups, Congress passed The Religious Freedom Restoration Act (RFRA) which was signed into law by President Clinton on November 16, 1993.
compelling governmental interest in controlling the use and illegal distribution of marijuana in the United States.
Mr. Olsen did not give up. He continued the fight by filing suit against the DBA. The case eventually ended up in the federal court where Ruth Bader Ginsburg was a judge prior to being appointed to the United States Supreme Court. Judge Ginsburg followed the predictable path first set out in Dr. Leary's case, parroting another court's finding that "every federal court that has considered the matter ... has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare."
She concluded that it was simply not feasible to permit a religious exemption for marijuana use because, under Mr. Olsen's proposal, the government would have to supply marijuana to the church on a regular basis, and it would be nearly impossible to monitor the church members' use of the marijuana. She noted that between 1980 and 1987, the DBA seized over 15 million pounds of marijuana, and expressed her concern about "the immensity of the marijuana control problem in the United States." Judge Ginsburg concluded, "the DBA cannot accommodate Olsen's religious use of marijuana without unduly burdening or disrupting enforcement of the federal marijuana laws ... [T]herefore ... the Free Exercise Clause does not compel the DBA to grant Olsen an exemption immunizing his church from prosecution for illegal use of marijuana." (Olsen v.DEA [DC dr. 1989] 878 F.2d 1458.)
Evidently, unless the Catholic Church makes a radical departure from its current practice, and replaces communion wine with communion marijuana, the courts will remain willfully blind to the spiritual importance of the Cannabis plant. It's particularly aggravating to note that during Prohibition, the federal government found it completely manageable to exempt the Roman Catholic Church. To put it very simply, to date,nobody has presented a winning religious defense to a marijuana crime. Likewise, those who have directly petitioned the DBA for a religious exemption from the federal anti-marijuana laws have received either denials or no response at all. (National Prohibition Act, Title II, Ch. 85, section 3, 41 Stat. 308 [1919].)
The Religious Freedom Restoration Act
Baced with the Supreme Court's decision in the 1990 peyote case discussed above, numerous religious groups banned together, lobbying Congress for a federal law that would protect religious practice by reestablishing the compelling state interest test in free-exercise cases. As a result of the efforts of these groups, Congress passed The Religious Freedom Restoration Act (RBRA) which was signed into law by President Clinton on November 16, 1993.
The express purpose of the RFRA is to restore the compelling state interest est, after "the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward -eligion."
The RFRA explicitly states:
(a) In General
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of Vhis section.
(B) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. (42 USC. sec. 2000bb -1.)
The RFRA reestablishes the requirement that laws burdening religious practice must pass the test of compelling state interest. It does nothing, however, to counter the effect of decades of anti-marijuana propaganda that has previously been used by courts to find that even under the compelling state interest test, permitting religious use of marijuana would excessively damage the government's interest in prohibiting drug use, and maintaining the health and welfare of individuals and society. What is needed now, therefore, is the amassing of scientific proof showing that a religious user of marijuana causes no harm to his health or to society in general. With a sufficient amount of such research, the courts may, someday, find that a person's religious use of marijuana is not harmful to the government's interest in controlling drugs, and hence, that the sacramental use of marijuana is protected under the recently enacted Religious Freedom Restoration Act.
larijuana, Religion, & the Law 197
The express purpose of the RFRA is to restore the compelling state interest ;st, after "the Supreme Court virtually eliminated the requirement that the ;overnment justify burdens on religious exercise imposed by laws neutral toward eligion."
The RFRA explicitly states:
(a) In General
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(B) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. (42 USC. sec. 2000bb -1.)
The RFRA reestablishes the requirement that laws burdening religious practice must pass the test of compelling state interest. It does nothing, however, to counter the effect of decades of anti-marijuana propaganda that has previously been used by courts to find that even under the compelling state interest test, permitting religious use of marijuana would excessively damage the government's interest in prohibiting drug use, and maintaining the health and welfare of individuals and society. What is needed now, therefore, is the amassing of scientific proof showing that a religious user of marijuana causes no harm to his health or to society in general. With a sufficient amount of such research, the courts may, someday, find that a person's religious use of marijuana is not harmful to the government's interest in controlling drugs, and hence, that the sacramental use of marijuana is protected under the recently enacted Religious Freedom Restoration Act.
IF YOU'RE ARRESTED
J.N GENERAL, there are only two occasions when a police officer can legally arrest a person: (1) if the officer has a warrant specifically authorizing the arrest of the person, or (2) if the officer has probable cause to believe the person committed a crime. In some states, such as California, an officer can arrest an adult for a misdemeanor only if the crime was committed in the off icer' s presence.
Arrest Warrants
Very few arrests for marijuana occur with an arrest warrant, so the subject of warrants will be discussed only briefly. Generally speaking, an arrest warrant is just like a search warrant. An arrest warrant is issued by a judge after a police officer presents him with an affidavit showing probable cause that a particular person committed a crime and can be found in his home. The officer then takes the warrant to the home and arrests the person.
Usually, the only circumstance under which an arrest warrant is absolutely required for an officer is when he seeks to arrest the person inside his own home. No warrant is needed to arrest a person outside his home in a public place, as long as the officer has probable cause to believe that the person committed a crime. Officers are well aware of these rules, and will often try to trick a person into leaving his or her house so that the person can be arrested without a warrant. For example, there are numerous cases in which police officers who have no arrest warrant go to a person's home in the hopes of arresting the person. The officers knock on the door and, when the person answers, ask him to step outside so they can talk to him. As soon as the person steps out the door, the officers can, and do, lawfully arrest him. This is another good reason why you should never open your door to a police officer who does not have either a search warrant or an arrest warrant.
If Arrested Outside, Don't Go Inside!
The United States Supreme Court has held that if a lawfully arrested person requests to enter his home before being taken to jail, the arresting officers have a legal right to accompany the person inside the residence. This rule was created by the Court after police officers arrested Carl Overdahl, a student at Washington State University. The officers arrested Carl because they observed him leave his dormitory carrying a half-gallon bottle of gin in violation of the Washington state law forbidding minors to possess alcohol. After Carl was arrested, he asked to return to his dorm room to get his identification, and the officer agreed. When Carl entered his dorm room, the officer also entered and observed in plain view what he believed were marijuana seeds as well as a seashell pipe of the type commonly used to smoke marijuana. The officer examined the seeds and confirmed that they were Cannabis, and also confirmed that the pipe smelled of marijuana. At this point, Carl and his roommate Neal confessed that there were three small plastic bags filled with marijuana in the apartment. After they consented to a search, the officers discovered forty grams of marijuana and some ***.
The Supreme Court stated that once the officers had lawfully arrested Carl, they had a right to follow him into his dormitory when Carl requested to get his ID. In the Court's words:
It is not 'unreasonable' under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety–as well as the integrity of the arrest–is compelling. Such a surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested. (Washington v. Chrisman [1982] 455 US I.)
The facts in Carl's case are not unusual. In fact, it is quite common for people to foolishly ask to return to their home to change into some different clothes before being taken to jail. As in Carl's case, most officers will gladly accommodate such a request, hoping that they will spot some plain-view contraband once inside the person's home.
In another case, a person was arrested on an outstanding warrant for failing to pay a traffic fine. Before going to jail, the person asked the officers to allow him to go inside to feed his dog. The officers happily agreed. When the officers accompanied the man inside, they detected a very strong aroma of marijuana and could see bright lights coming from underneath a closed door in the hallway. When they opened the door, the officers discovered forty Cannabis plants.
The obvious lesson to be learned from such cases is that anyone with incriminating evidence in his home should go directly to jail if arrested. There simply is no reason for returning home to change clothes, get pajamas, or feed gold fish. The jail will provide all the clothing needed, and friends can be called to take care of your pets.
Booking Searches
If you are booked into jail after an arrest, the police may conduct what is known as a "booking search." The courts have held that warrantless booking searches are justified in order to safeguard people's belongings and to keep contraband and weapons out of the jail. During a booking search, an officer may search you and anything in your possession. The jail officers can make an item-by-item examination of everything in your pockets. They can search your wallet or purse as well as all other containers.
Every so often, the police who are booking a person into jail will suspect that an arrestee is concealing drugs or a weapon inside a body cavity. In such cases, most states permit the police to conduct a strip search or a body-cavity search. However, because such searches invade the very core of a person' s privacy, most courts have held that the officer must have "reasonable suspicion" that the person is concealing contraband. Some courts go further and require probable cause. In no states can an officer perform a strip or body-cavity search merely because a person has been arrested.
Additionally, some states have further rules regulating strip and body-cavity searches. For example, in California, a search warrant is required before an officer can perform a strip or body-cavity search of a person arrested for a misdemeanor (as opposed to a felony). Additionally, the search must be conducted by someone of the same gender as the arrested person.
Miranda Rights
When the Police Must Read You Your Rights
vlany people believe that an officer must automatically read Miranda rights as >art of performing an arrest, either immediately before or immediately after an irrest is made. This is a myth.
The truth is that the only time an officer must read a person his or her Miranda ights is when: (1) the person has been taken into custody, and (2) the officer is ibout to question the person about a crime.
Therefore, if you walk into a police station and state that you want to make i confession the officers are not required to read you your rights before taking /OUT confession. However, in this situation, most officers will read you your ights just to be safe, or because they don't understand the law. Likewise, if an officer walks up to you as you leave your backyard garden and asks you what you ire growing, he need not read you your rights before you answer. In both of these jxamples,you are not in custody, so any information you volunteer to the officer tvill be admissible, despite the fact that you were never read your rights.
As a final note, your Fifth Amendment right against forced self-incrimina-lon extends only to "testimony." The courts have defined "testimony" very larrowly, as only spoken words. Therefore the Fifth Amendment does not protect >fou against self-incrimination based on the taking of your blood or body fluids.
Don't Waive Your Miranda Rights
It generally takes a police officer about five seconds to read your Miranda rights and ask if you agree to waive them. The decision to waive these rights, like any
nstitutional rights, should not be made hastily. Let's break down what an officer is telling you when he reads you your rights.
First, he is saying that these are your rights. As with all the other rights discussed in this book, you should not hesitate to exercise your Miranda rights. Your constitutional rights protect you whether you are innocent or guilty.
When an officer reads you your rights, the first right he reminds you of is your right to remain silent. This right was deemed of such importance that it was included in the Fifth Amendment to the U.S. Constitution. The Fifth Amendment is usually said to protect a person from forced self-incrimination. In practice, the Fifth Amendment permits a person to remain silent when interrogated by police officers or questioned in court. In addition, the United States Supreme Court has held that if a person exercises his or her Fifth-Amendment right and refuses to answer a police officer's questions, this fact cannot later be used against the person in court. In other words, it is improper for the prosecution to comment on the fact that a person refused to answer a police officer's questions. In fact, many cases have been reversed because of a prosecutor's comment, such as, "Ladies and gentlemen, if the defendant was really innocent, wouldn't he have answered all the questions the police asked? Wouldn' t he take the opportunity to explain his innocence?" There is no reason to worry that your failure to answer the officer's questions will later be used against you. The truth is just the opposite. Anything you say can be used against you. Also, don't make the mistake of thinking that only written statements can be used against you. To repeat, anything you say, whether oral, written, taped, not taped, signed or not signed, will be used against you if the statement benefits the prosecutor's case.
Knowing that anything you say to a police officer can be used against you, why would you want to make a confession or answer questions? In just about every case imaginable, a person is best off not answering any questions about his involvement in criminal activity. The only time when it is wise to answer an j officer's questions, once you're in custody, is when you are absolutely innocent 1 of any criminal activity. In that situation, carefully answering the officer's j questions may result in your quick release. However, you must be very careful not '< to let the officer put words in your mouth.
The second right that an officer informs you of is your right to an attorney, t If you are unable to afford an attorney, the court must appoint the Public Defender' or a private attorney. This is a very important right, and is based on the Fifth and i. Sixth Amendments. Again, you should never hesitate to exercise this right. If you j request an attorney, the police officer must immediately stop questioning you and may not resume until an attorney is present.
The best way to assert your Miranda rights is to say these exact words: "I want an attorney and will remain silent until one is provided." The United States^ Supreme Court has held that this statement invokes protection of both the Fi and the Sixth Amendments, and hence provides the person with the maximu protection available under the Constitution. (Alternatively, you could invo: your rights by handing the officers the cards in Appendix B.)
Generally, the last thing an officer says when he reads you your rights is, you understand and agree to waive these rights?" This is actually two sep; questions, which officers often ask in this combined form as a way of tricki people into waiving their rights. When the questions are combined in this wayj many people hear only the first question-"Do you understand these rights? answer "yes," not fully realizing that in doing so they have just waived some their most important constitutional rights. It is very important to know that can always invoke your Miranda rights even after you have waived them (evi if the waiver was in writing). You need only state that you now wish to re silent or have a lawyer. Such a statement should bring a halt to the questioi immediately, despite the earlier waiver and despite the fact that you have al; answered some questions.
If You're Arrested
Police Interrogation Techniques
The Miranda case is important for two reasons. First, as described above, it established the rule that whenever a person is questioned while in custody, he or she must be advised of the right to remain silent and the right to have an attorney. Second, this case became an opportunity for the Supreme Court to document some of the interrogation techniques taught to police officers. While the opinion was written in 1966, the Court did not outlaw these techniques, many of which are therefore still in use today. The following quote from the Court's opinion provides some insight into these police interrogation techniques:
An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930s, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that time. In a series of cases decided by this Court long after these studies, the police resorted to physical brutality–beatings, hanging, whipping –and to sustained and protracted questioning incommunicado in order to extort confessions. The Commission on Civil Rights in 1961 found much evidence to indicate that "some policemen still resort to physical force to obtain confessions." The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked, and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party.
Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts that document procedures employed with success in the past, and that recommend various other effective tactics. These texts are used by law-enforcement agencies themselves as guides. It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country.
The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is privacy–being alone with the person under interrogation." The efficacy of this tactic has been explained as follows:
"If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law."
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already–that he is guilty. Explanations to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:
"In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable."
The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:
"Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun–for your own protection. You know him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?"
Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence that negates the self-defense explanation. This should enable him to secure the entire story. One text notes that "Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense 'out' at the time of trial."
When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the "friendly-unfriendly" or the "Mutt and Jeff act:
". . . . In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by qu ietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room."
The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a lineup. "The witness or complainant (previously coached, if necessary) studies the lineup and confidently points out the subject as the guilty party." Then the questioning resumes "as though there were no doubt about the guilt of the subject." A variation on this technique is called the "reverse lineup":
"The accused is placed in a lineup, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations."
The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely , or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. "This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses the subject with the apparent fairness of his interrogator." After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk:
"Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you,' I don' t want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over."
Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly. (Miranda v. Arizona [1966] 384 US 436.)
The point here is that once you have been arrested, police officers are not your riends. Don't believe anything they say and do not try and explain anything to hem. They are trying to get incriminating statements out of you and often don't >ut any other statements in their reports. All defense attorneys agree: if you are ;ver arrested assert your Fifth Amendment right to remain silent.
The Right to Counsel
[t should be clear from the information in this book that our criminal-justice system is adversarial. If you are suspected of committing a crime, the resources of the state and/or federal government are marshaled against you. The police will do their best to arrest you and get your confession. Detectives will do their best to gather evidence against you, both physical and testimonial. Forensic scientists employed by the prosecutor will work to examine the evidence and relate it to your guilt. At trial, the government is represented by a prosecutor whose goal is to prove, beyond a reasonable doubt, that you are guilty of the crime charged. Fortunately, the Sixth Amendment to the United States Constitution states "in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense." The boundaries of the right to counsel have shifted over time. Currently, the Supreme Court has held that, despite the clear language of the Sixth Amendment, the right to counsel does not apply in all criminal prosecutions. Rather, the Court has ruled that the right to counsel only extends to cases in which the defendant can actually be sentenced to jail. Theoretically then, you can be criminally prosecuted and denied the right to counsel so long as the actual punishment you receive is "only" a fine and you receive no jail time. Consequently, in most states, if you are charged with "petty offenses," such as traffic citations, or a marijuana crime that is punishable only by a fine, you may not be entitled to an attorney at the state' s expense. Practically speaking, however, most marijuana crimes do carry the potential penalty of imprisonment; hence, if you cannot afford an attorney one will be provided.
Public Defenders and Court Appointed Attorneys
Most people who are charged with crimes cannot afford an attorney. In such cases, if the defendant could receive imprisonment as a punishment, the government will provide the defendant with a public defender or a court-appointed attorney.
Public defenders often get a bad rap. Many people believe they are untrained pawns of the government who get paid for walking the defendant through the system to a quick conviction. This viewpoint is inaccurate. First, despite the widespread belief to the contrary, public defenders are attorneys. They have been to law school and have passed a rigorous exam just like all other attorneys. -Additionally, because public defenders who handle misdemeanor cases are often 1 young attorneys just out of law school, they are usually well versed on the latest < legal trends and are up-to-date on the rules of law and evidence. Similarly, also ! because they are often young, many public defenders are enthusiastic about their \ job and see themselves as legal warriors fighting for the rights of the poor and s underprivileged. Such a public defender is often a strong advocate. Lastly, J because public defenders handle a large case load of nothing but criminal cases, | they are usually very familiar with the local judges and district attorneys, as well | as with the standard punishments for particular crimes.
Of course, there are some disadvantages to having a public defender. They are usually very overworked, often carrying three or four times as many cases as a private attorney. A public defender can therefore rarely spend as much time on your case as a private attorney. Similarly, if your case is extremely complex, requiring lots of investigation and expert testimony, the public defender may have difficulty getting an approval to spend the money necessary to do the job properly.
All in all, however, representation by a public defender is usually better than most people think. Your biggest problem will be getting your public defender to focus on your case. Do whatever you can to keep your name and case in the public defender's mind. Don't be afraid to politely, but regularly, check in to get an update on the case. Also, ask him or her what you can do to assist in your defense (for example, locating witnesses, taking photographs, etc.). The old saying about "the squeaky wheel getting the oil" is definitely appropriate when it comes to public defenders and their heavy caseloads.
In some situations, rather than receive a public defender, you may be provided with a private attorney whose fees are paid by the government. There are two ways this can occur. First, in some counties there is no public-defender organization. Rather, the county maintains a list of private attorneys who are appointed by the court to represent indigent defendants. Therefore, if your county has no public-defender office, you will receive a private court-appointed attorney. The second way to receive a private attorney at little or no cost to you is if your case involves other defendants in addition to yourself. Often in cases with multiple defendants, the court will require each defendant to have his or her own attorney. The public defender can represent one such defendant, but then private attorneys will be appointed to represent the remaining defendants.
As with public defenders, there are advantages and disadvantages to receiving a court-appointed attorney. On the positive side, most court-appointed attorneys will have more time to spend on your case than a typical public defender, because unlike a public defender, a private court-appointed attorney can turn down cases when he feels he is becoming overburdened. On the negative side, many attorneys who are appointed by the court to handle misdemeanor cases are extremely inexperienced at handling criminal matters. In fact, many counties allow any attorney to receive misdemeanor appointments. Many young attorneys who are just starting out in practice apply to receive misdemeanor appointments. This means that an attorney who has just passed the bar exam, and who has never even been inside a courtroom before, could be appointed to handle your misdemeanor case. Fortunately, if you are charged with a felony, most counties will require your appointed attorney to have proven experience in criminal matters. In fact, if you are charged with a felony and given a court-appointed attorney, you may very well get an expensive attorney whom others would pay thousands of dollars to retain.
Choosing a Private Attorney
For people who can afford to hire their own attorney, the selection process can be confusing. If you are charged with a marijuana or other drug crime, you need a trial attorney that handles only criminal cases and preferably one who specializes in drug cases. You don' t want an attorney that handles business matters, divorces, and wills. Such attorneys spend almost all their time drafting legal documents, spend little time in court, and generally have little trial experience. Additionally, although twenty years ago a lawyer could be a general practitioner and remain competent to handle criminal matters, today the criminal laws are so complex and ever-changing that a "jack-of-all-trades" lawyer cannot possibly represent you as well as a focused criminal lawyer can.
Again, what you need if charged with a marijuana crime is an attorney who handles nothing but criminal cases. If you know a judge, a court bailiff, or a court reporter, ask them to recommend a good criminal attorney in your area. Think twice about using an "attorney referral service." Many such services are filled with brand-new attorneys or unsuccessful attorneys scraping to make a living. If you use such a referral service, ask the service what qualifications an attorney must have to be a member of the service. Reject any service whose attorneys are not experienced at handling criminal cases.
For most marijuana cases, it is usually best to retain an attorney who has a solo practice or is a member of a law firm with no more than 5 lawyers. With a sole practitioner you know who is handling your case and hence whom to contact with any new information, or to get an update. Often larger law firms have several attorneys work on a file. In theory there should not be a problem with this practice. Some people like the idea of having several attorneys working together on their case. Such representation may be valuable if each attorney is interested in your case and effectively communicates his thoughts to the other attorneys working your case. In practice, however, problems often arise because no single person is fully involved, and therefore fully prepared, in all aspects of the case. Likewise, large law firms often employ paralegals and law clerks to conduct legal research and to prepare many of the legal motions and memoranda filed in court. Why pay a big firm to handle your case when a paralegal is doing much of the work?
Criminal defense attorneys can be located by thumbing through the yellow pages, or by asking around among your friends. When looking through the yellow pages, you will see many criminal defense attorneys who advertise that they began their careers by working for a prosecuting agency before going out on their own. These attorneys are often very experienced. However, I would not recommend such attorneys, simply because their employment history indicates a fundamental ideological problem: they used to earn their paychecks by convicting people who smoke or grow marijuana! Rather than hire such an attorney, look for one who presents himself or herself as ideologically opposed to the government's prosecution of people for marijuana crimes. You want an attorney that really believes in the case he or she is fighting for. Such an attorney is more enthusiastic, a harder worker, and often more effective. Therefore, look for someone that has never worked for the government as a prosecutor. Prior experience as a public defender may be advantageous, suggesting that the lawyer cares about defending people.
Once you have selected several attorneys you think might be good, call them and arrange a free consultation. Almost all criminal attorneys will meet with you for free to hear about your case and quote you a fee. Set up several such interviews on a single day and choose the attorney that most impresses you and whose fee you can afford. You should retain the attorney who is most enthusiastic about defending you, intelligent, and very well-versed on defending marijuana cases.
Attorney Fees
Today, most criminal defense attorneys charge a flat retainer fee rather than billing by the hour. It is very important to clearly understand what services are covered by the retainer. For example, you should make sure you understand (and that the retainer agreement clearly spells out) whether or not the following services are covered by the retainer: copy charges, computer research charges, pretrial motions, and most importantly, trial fees and appeal fees. You might also want to make sure that the attorney you are meeting with will be the actual attorney handling the case and appearing in court on your behalf. Unless it's spelled out that a particular attorney will be handling the case and making all appearances, some law firms might use an experienced attorney to obtain your retainer, but send inexperienced attorneys to handle your court appearances.
Private Investigators
An important part of your attorney' s job is to coordinate the investigation of your side of the case. In contrast to murder or other complex cases which might involve numerous eyewitnesses, and dozens of pieces of evidence, the typical marijuana case usually doesn't require a lot of investigation. In some marijuana cases however, your attorney might want to retain the services of a private investigator. As mentioned earlier, you should make clear to your attorney that you have the final say as to whether or not a private investigator will be retained. That way prior to spending lots of money on an investigator, your attorney will have to come to you, explain why he thinks an investigator is necessary, and get your approval before incurring investigator expenses.
Working With Your Attorney
Fighting a marijuana charge is a collaborative effort. Your attorney knows the law, but depends on you to tell him or her the facts. Defense attorneys take the attorney client privilege very seriously, and you should feel perfectly safe discussing your case with your attorney.
All private conversations about your case between yourself and your attorney are privileged .This means that no one, not the police, not the prosecutor, not your parents or spouse, and not the court, can find out what the two of you discussed. The privilege applies to all private communications with your attorney, whether in person, over the phone, or in writing.
Whenever you meet with your attorney, you should listen very carefully and answer the questions he or she asks you. It is to your advantage to answer the questions as truthfully and as accurately as possible. Your head holds the greatest advantage you have over the prosecutor. Both the prosecutor and your attorney have the police reports, but only your attorney is privy to you. Most attorneys handling marijuana cases prefer to know everything –all the facts–whether good or bad. (There is a small group of attorneys who just want to know certain information. For technical reasons pertaining to attorneys' ethical duties, these attorneys will ask you very specific questions directed at getting the information they want to know while avoiding learning something that they don't want to know.)
Your attorney might give you a copy of the police report and ask you to
carefully review it and point out any inaccuracies or omissions. Many attorneys
will ask you to go home and type out an honest and complete account of the
pertinent information surrounding your arrest. Such information will allow your
attorney to capitalize on sloppy or corrupt police work. Equally importantly, by
knowing the negative or incriminating information ahead of time, your attorney
can carefully avoid dangerous subject areas in court and be prepared to minimize
and counter the impact of such information if it comes out in court. Your private
written statement also helps your attorney by making available your account of
the facts while working on your case before it gets to trial. As discussed above, \
there is no way that your statement can get into the wrong hands, so don' t be afraid
to write down everything your attorney requests. You do not want your attorney
to be caught by surprise during the trial.
I Not only should you answer all your attorney' s questions, but you should also 1 follow his or her advice. If you're convinced that your attorney is giving you bad ' advice, fire him or her and get another attorney. The worst thing to do is stay with an attorney without following his or her legal advice. It is extremely important that you understand the advice that your attorney is giving you. If you have a good attorney, you should feel completely comfortable asking every single question you have. Failure to fully understand the advice will result in failure to follow the advice, which can lead to disaster. Remember, you are paying your attorney for legal advice; you must understand it or it is less than worthless.
Once your attorney has a good grasp of the facts in your case, the two of you will discuss your general strategy. Case strategy varies depending upon the strengths and weaknesses of the facts, as well as the client's wishes.
You have a right to a trial even if the facts in your case are quite incriminating. As discussed earlier, the prosecutor in a criminal case has the burden of proving yourguilt. You do not need to prove your innocence. Defense attorneys go to trial on many cases in which the facts are incriminating and by cross-examining the witnesses against their client, try to raise a reasonable doubt in the minds of the jurors. (As discussed in Chapter 2, you can be convicted only if the jury finds you guilty beyond a reasonable doubt.)
Your attorney can advise you of your chances of winning if you take your case to trial. If he is a private attorney he will also tell you how much he will charge to try your case. You are the one who must make the final decision as to whether or not to go to trial based on your chances of winning, the punishment if you lose versus the punishment if you strike a plea bargain, and the cost of paying your attorney's fees.
A person in jail whether before, during, or after trial, is not entitled to much privacy. You should assume that every phone call you make from jail is recorded and monitored by the jail staff. You should also assume that the visiting booths used to visit your family and friends are electronically monitored Even the letters which you send out and those which you receive will be opened and, in some detention facilities, read. In all of the above instances, anything you say or write can and will be used against you.
About the only circumstances in which you can feel safe speaking about your case while you are in jail is when you are speaking to your attorney in a special room set aside for attorney-client visits. It is illegal for the government to monitor conversations with your attorney which occur in these booths. Also, if you write any letters to your attorney while in jail, you should clearly mark the outside of the envelope "Confidential Attorney Correspondence." Such communications are covered by the attorney-client privilege and remain private. Your attorney should mark all his letters to you with the same notice. Be sure and inform him if you think that his letters are being opened by the jail staff.
Release Pending Trial
In the vast majority of marijuana arrests, the defendant is taken to the police station, booked, and immediately released with a promise to appear in court on a given date. However, if you are arrested for a possessing, cultivating, or transporting a large amount of marijuana, or if weapons or other signs of violence are linked to your marijuana crime, you might be held in custody following your arrest. In order to get released pending your trial, your attorney will have to convince the judge that you should be released on your own recognizance (OR release) or that your bail should be set low enough for you to afford.
The issue of OR release or bail reduction is usually raised during your first appearance before the judge. Whether you will be OR'd depends entirely on the facts of your crime and on your criminal history. You should be OR'd if yours is a small-time marijuana crime and you have never been convicted of a crime before. However, if your marijuana crime involves a high degree of sophistication, a large amount of marijuana, if your record is not perfect, or if there is any reason to fear that you might flee, the judge will most likely set bail.
To administer the bail system, most counties have established bail schedules. These schedules list various crimes and attach a suggested bail amount to each crime. The judge will start with the guideline amount and then increase or decrease your bail based on arguments presented by the prosecutor and your attorney. The judge will be trying to determine if you are likely to flee the area if you make bail, and whether or not you are a threat to a particular person or to the community at large. Your attorney will need to argue that you are not going to run or hurt anyone by showing that your crime was victimless and did not involve weapons, threats, or violence of any kind (if this is, in fact, the case). To
A person in jail whether before, during, or after trial, is not entitled to much privacy. You should assume that every phone call you make from jail is recorded and monitored by the jail staff. You should also assume that the visiting booths used to visit your family and friends are electronically monitored Even the letters which you send out and those which you receive will be opened and, in some detention facilities, read. In all of the above instances, anything you say or write can and will be used against you.
About the only circumstances in which you can feel safe speaking about your case while you are in jail is when you are speaking to your attorney in a special room set aside for attorney-client visits. It is illegal for the government to monitor conversations with your attorney which occur in these booths. Also, if you write any letters to your attorney while in jail, you should clearly mark the outside of the envelope "Confidential Attorney Correspondence." Such communications are covered by the attorney-client privilege and remain private. Your attorney should mark all his letters to you with the same notice. Be sure and inform him if you think that his letters are being opened by the jail staff.
Release Pending Trial
In the vast majority of marijuana arrests, the defendant is taken to the police station, booked, and immediately released with a promise to appear in court on a given date. However, if you are arrested for a possessing, cultivating, or transporting a large amount of marijuana, or if weapons or other signs of violence are linked to your marijuana crime, you might be held in custody following your arrest. In order to get released pending your trial, your attorney will have to convince the judge that you should be released on your own recognizance (OR release) or that your bail should be set low enough for you to afford.
The issue of OR release or bail reduction is usually raised during your first appearance before the judge. Whether you will be OR'd depends entirely on the facts of your crime and on your criminal history. You should be OR'd if yours is a small-time marijuana crime and you have never been convicted of a crime before. However, if your marijuana crime involves a high degree of sophistication, a large amount of marijuana, if your record is not perfect, or if there is any reason to fear that you might flee, the judge will most likely set bail.
To administer the bail system, most counties have established bail schedules. These schedules list various crimes and attach a suggested bail amount to each crime. The judge will start with the guideline amount and then increase or decrease your bail based on arguments presented by the prosecutor and your attorney. The judge will be trying to determine if you are likely to flee the area if you make bail, and whether or not you are a threat to a particular person or to the community at large. Your attorney will need to argue that you are not going to run or hurt anyone by showing that your crime was victimless and did not involve weapons, threats, or violence of any kind (if this is, in fact, the case). To argue that you are not likely to flee the area, your attorney will try to demonstrate that you have strong ties to the community by showing that:
You're employed or attend school in the area.
You rent an apartment or, better yet, own a home, in the local area.
You have resided in the area a long time. You are married and your spouse lives and works in the area. You have children in school in the area.
If your record is supportive, your attorney will also argue that you have never been in trouble before, or, if you have been, that you have always appeared in court as directed. Your attorney can also argue (and in fact the prosecutor may try and demand) that your release on bail contain a condition that you stay away from certain areas and not associate with certain people, or stay employed or in school. Sometimes, agreeing to such release conditions will convince a judge to set bail at a reasonable amount.
It is legal for a judge to deny bail in certain circumstances. However, this is very rare in marijuana cases, and will only occur if a cache of weapons is found, or there is clear evidence that you are a danger to someone if released. Although a judge rarely denies bail in a marijuana case, it is quite common for the judge to set bail at an amount too high for the defendant to financially post.
For example, in one case, Mike was arrested for cultivating over 70 Cannabis plants in his basement. When he was taken to jail, he felt intimidated by the other inmates, and wanted to show them he was tough. Mike waited in line to use the phone and when it was his turn, he picked up the phone, acted like he was dialing, and then said to the imaginary person on the other end, "I know why I was arrested. Joey talked. I want you to hurt him real bad." Unfortunately, Mike was overheard not only by his fellow inmates, but also by a deputy police officer standing nearby. This officer quickly wrote down a report of the conversation and it was used against Mike during his bail hearing. Because of these statements by Mike, the judge set bail at $250,000, when the bail schedule was only $5,000 for the cultivation offense. Because of Mike's ploy, his attorney was unable to get the bail reduced, Mike could not make bail, and he was forced to stay in jail for two months pending his trial.
How Bail Is Paid
In the vast majority of cases, bail is paid in one of two ways. The best way, if you are lucky enough to have the money, is to post cash bail. For example, if your bail is set at $5,000, you simply pay the jail cashier $5,000 and you're out.
Since most people don't have thousands of dollars lying around, the most common method of making bail is to contact a bail bondsman. In most jurisdictions, you pay the bondsman about ten percent of the bail amount, and he posts a bond with the court for the full amount of the bail. For example, if your bail is set at $5,000, you can pay a bondsman $500 and he will post a $5,000 bond with the court. He will also require collateral equal to or greater than the bond amount. The bondsman keeps your $500 no matter what happens. It's gone forever. If you make all your court appearances, the court releases the $5,000 bond back to the bondsman who then comes out $500 ahead. If you skip bail (leave the area or fail to go to your court appearances) the court will take the bondsman's $5,000 bond and whatever you used as collateral will become his. In addition, the court will issue a no-bail warrant for your arrest. This means that if you are ever stopped by a police officer and he runs a warrant check, you will be arrested and taken back to jail. If that happens, you will not only be facing the original marijuana charges, but also the additional charge (usually a felony) of jumping bail. To make matters worse, the judge will probably deny you bail, so you'll end up spending several months in jail while you await your trial date.
Tips On Going To Court
Before the actual trial, there will be several court dates where preliminary matters will be hashed out. In some jurisdictions, your attorney can appear at these proceedings without you. However, in other jurisdictions, you will be required to appear personally at every court date. One of the worst things you can do is fail to appear for a scheduled court date. In most cases, the judge will issue a warrant for your arrest and, unless you have a great excuse, the judge will thereafter treat you like an untrustworthy deadbeat. Obviously, it's best not to upset the judge.
The second worst thing you can do is show up late to a court date. Make it a point to arrive at the court house at least 20 minutes early. Parking around courthouses is always difficult, and it's often a confusing mayhem inside, as defendants are transferred from one courtroom to another.
As soon as you walk into the courtroom, even if there are many other people there, you and anyone who is with you should be on best behavior. The basic rule is to behave respectfully toward everyone. Little things can make a difference. Listen to what the bailiff tells you, and follow his orders promptly and politely. When the judge speaks to you,you should look him or her in the ey e, and end your sentences with "... your honor." Also, dressing up makes a positive visual impression on the judge and indicates that you take the charges seriously and have respect for the court. Remember, many judges have very big egos, and fully expect to be treated like royalty. It therefore behooves you to treat the judge with utmost respect.
The real theater starts when your trial begins. By then your attorney will have settled on the general theory of the defense to be presented. As soon as the jury is brought into the room you'll want to give the impression that you are a kind, gentle and decent person. Remember, even if you never take the stand to testify, your actions are continually being judged by the jurors. Jurors will look to see how you react to certain testimony and evidence. They'll look to see how you relate to your attorney. They'll look to see how you relate to your family and friends and whether they look like "decent" people. They'll also look to see how you relate to the bailiff, the court clerk, and the court reporter.
During trial, stand up and face the jurors whenever they enter or leave the j
courtroom. Try to make nonthreatening eye contact and look like the innocent *
and decent person you are. Don't talk to jurors in or out of the courtroom. Watch !
what you do and say even in the hallways of the courthouse, because it is very j
possible that a juror will be watching.
Cleaning Up a Marijuana Conviction Record
Supposing the worst has happened, and you've been convicted of a marijuana. offense. Is there anything you can do to make it all better? Well, in some states, for certain marijuana convictions, the answer is "yes."
For example, in California, if, after December 31,1975, you were arrested or convicted of either (1) possession of any amount of marijuana (but not for sale), or (2) offering to transport, transporting, offering to give away, or giving away less than one ounce of marijuana, then your record will automatically be destroyed two years after your arrest or conviction. This happens only if you successfully complete all the terms of your sentence.
If your marijuana arrest or conviction occurred/jn'or to January 1,1976, you can still get your records destroyed, but it is slightly more difficult, and will cost you a few dollars. Here's the rule: If, prior to January 1,1976, you were arrested or convicted of either (1) possession of any amount of marijuana (but not for sale), or (2) possession of paraphernalia used to smoke marijuana, or (3)visiting or being present in a place where marijuana was being used, or (4)being under the influence of marijuana, you can get your records destroyed by submitting a simple form to the Department of Justice (DOJ).
The form is very simple to fill out, and can be obtained from any police or sheriff's station, or by writing or calling the California Department of Justice. Tell them you want the form titled "Application to Destroy Arrest/Conviction Records" and that this is pursuant to Health and Safety code section 11361.5(b).
Once you get the form, simply fill in the boxes, write a check for $37.50 (the cost as of this writing), and send it off as the form instructs. Occasionally, the DOJ has problems finding a person's records, and in such cases requests a copy of your fingerprints within fifteen days. Most defense attorneys advise their clients to go ahead and submit their prints. Others are less trustful, and advise their clients to drop the whole thing if the DOJ makes such a request. The decision in such a case is yours.
Assuming everything goes well, the DOJ will soon notify you by mail that II records held by the DOJ, the FBI, the local police agency that arrested you, the robation department, and the DM V concerning your arrest/conviction have been destroyed.
Once your records have been destroyed, either automatically or by sending i the form and receiving a confirmation by the DOJ, you can legally answer that ou have never been arrested or convicted for those crimes. Likewise, no public gency like a real-estate licensing board or medical board can deny you a rofessional license because of your arrest/conviction.
The First Amendment
IN THE OFTEN CONSTRICTED MINDS of most of our country's politicians and judges, Cannabis is a vile and evil plant. Despite the fact that preparations from the Cannabis plant have be used for thousands of years to facilitate religious understanding, our country's lawmakers and judges have consistently refused to offer any protection to religiously motivated marijuana users.
At present, all but a few trial courts in our country will refuse to allow the presentation of a religious defense against a marijuana charge. Unless you have a magical attorney and wind up in front of a tremendously courageous and independently-minded judge, you very likely will be barred from presenting the issue for consideration by the jury.
On December 22, 1965, Dr. Timothy Leary was arrested by U.S. Customs officers after an inspector recognized him and spotted "some vegetable material and a seed on the floor of the automobile." At his trial, Dr. Leary successfully introduced evidence of his impressive academic background and of his membership in the well-established Brahmakrishna sect of Hinduism, members of which use marijuana in their religious rituals. Dr. Leary presented a great deal of evidence backing up his claim of religious use, including the testimony of a Hindu monk, an expert in psychopharmacology, and a medical doctor. Once all the evidence was presented, Dr. Leary's attorney requested a jury instruction that would permit the jury to acquit Dr. Leary if it found that his religious claims were honest and made in good faith. The judge refused to give the jury the instruction, and the jury subsequently found Dr. Leary guilty of several marijuana crimes.
Dr. Leary appealed his convictions arguing that his religious use of marijuana was protected by the Free Exercise Clause of the federal constitution, and that the judge unfairly refused to instruct the jury regarding the religious defense.
The appellate court rejected his argument, holding that despite the clear language of the Free Exercise Clause, there was no religious defense to the anti-marijuana laws.
The published opinion of the court of appeal is an example of the manner in which judges often kowtow to the politics and hysteria of the War on Drugs. Casting marijuana as a destroyer of society, the court asserted that "the paramount interest in the enforcement of the laws relative to marijuana is the protection of society." Citing 30-year old "evidence," used to support the Marijuana Tax Act of 1937, the court asserted that marijuana users often engage in "criminal episodes of terrible character." The "evidence was voluminous and convincing," wrote the court, "that Marijuana is a serious evil to society."
With such a mind-set firmly in place, the court turned to Dr. Leary's proposal for a religious defense, and stated what continues to be the bottom line on the subject:
Congress has demonstrated beyond doubt that it believes marihuana is an evil in American society and a serious threat to its people. It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marijuana laws would be meaningless, and enforcement impossible. The danger is too great, especially to the youth of the nation, at a time when psychedelic experience, "turn on," is the "in" thing to so many, for this court to yield to the argument that the use of marijuana for so-called religious purposes should be permitted under the Free Exercise Clause. We will not, therefore, subscribe to the dangerous doctrine that the free exercise of religion accords an unlimited freedom to violate the laws of the land relative to marijuana. (Leary v. US [5th Cir 1967] 383 F.2d 851.)
Anti-marijuana hysteria such as that demonstrated by this decision, is alive and well today. Courts faced with religiously motivated marijuana users have distinguished religious belief from religious practice or action. Applying this distinction to the Free Exercise Clause, the courts, including the United States Supreme Court, have ruled that while religious beliefs are fully protected by the constitution, religious actions, even when sincerely based on those beliefs, may be regulated or banned in order to protect a "compelling state interest."
Given the hysteria and anti-marijuana propaganda promoted by the hawks in the War on Drugs, it is no surprise that every court which has applied such an analysis to a marijuana case has found that the "compelling state interest" in enforcing the anti-marijuana laws outweighs whatever burden falls on those who claim to use marijuana for religious purposes.
The rules regarding the religious use of marijuana have not improved over time. In 1990, the United States Supreme Court decided a case involving the sacramental use of peyote by a member of the Native American Church. In a decision in which the Court ignored decades of established free-exercise jurisprudence and created new rules just for the case, the Court held that antidrug laws do not violate the Free Exercise Clause so long as they do not specifically target religious practice. In other words, the Supreme Court is prepared to uphold any general criminal law despite its impact on Free Exercise, so long as the law was not specifically crafted to impede religious practice. Obviously, under such a test, the anti-marijuana laws will never run afoul of the Free Exercise Clause.
Justice Blackmun, joined by Justices Brennan and Marshall, wrote a powerful dissenting opinion calling the majority's decision "a wholesale overturning of settled law concerning the Religion Clauses of our Constitution." Unfortunately, today, none of the three dissenting justices remain on the court.
The relatively recent addition of Ruth Bader Ginsburg to the United States Supreme Court leaves little hope that the Court will become more favorable to religiously motivated drug use any time in the near future. In 1989, Ms. Ginsburg, then a federal appeals court judge, upheld the DEA's refusal to grant a man's petition seeking a religious exemption from the federal anti-marijuana laws. In that case, Carl Olsen, a member and priest of the Ethiopian Zion Coptic Church, petitioned the DBA for a religious exemption to the federal anti-marijuana laws The EZCC traces its origins back 6000 years and has a history of sacramental marijuana use. The DEA denied Mr. Olsen's petition, stating in part:
In 1984, an estimated 7,800 to 9,200 tons of marijuana were illegally consumed in the United States. It has been estimated that over 20 million people in the United States use marijuana on a regular basis. Marijuana is a major public health problem in this country. Accordingly, the investigation and prosecution of marijuana traffickers, the interdiction of marijuana smuggling and the eradication of the drug at its source continue to be major concerns of drug law enforcement both domestically and internationally.
In view of the immensity of the marijuana abuse problem in the United States and the magnitude of the criminal activity surrounding the prosecution and trafficking in this substance, the Administrator of the Drug Enforcement Administration concludes that the interest of the Ethiopian Zion Coptic Church in the ceremonial use of marijuana is outweighed by the compelling governmental interest in controlling the use and illegal distribution of marijuana in the United States.
Mr. Olsen did not give up. He continued the fight by filing suit against the DBA. The case eventually ended up in the federal court where Ruth Bader Ginsburg was a judge prior to being appointed to the United States Supreme Court. Judge Ginsburg followed the predictable path first set out in Dr. Leary's case, parroting another court's finding that "every federal court that has considered the matter . .. has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare."
She concluded that it was simply not feasible to permit a religious exemption for marijuana use because, under Mr. Olsen's proposal, the government would have to supply marijuana to the church on a regular basis, and it would be nearly impossible to monitor the church members' use of the marijuana. She noted that between 1980 and 1987, the DBA seized over 15 million pounds of marijuana, and expressed her concern about "the immensity of the marijuana control problem in the United States." Judge Ginsburg concluded, "the DBA cannot accommodate Olsen's religious use of marijuana without unduly burdening or disrupting enforcement of the federal marijuana laws ... [TJherefore ... the Free Exercise Clause does not compel the DBA to grant Olsen an exemption immunizing his church from prosecution for illegal use of marijuana." (Olsen v. DEA [DC Cir. 1989] 878 F2d 1458.)
Evidently, unless the Catholic Church makes a radical departure from its current practice, and replaces communion wine with communion marijuana, the courts will remain willfully blind to the spiritual importance of the Cannabis plant. It's particularly aggravating to note that during Prohibition, the federal government found it completely manageable to exempt the Roman Catholic Church. To put it very simply, to date, nobody has presented a winning religious defense to a marijuana crime. Likewise, those who have directly petitioned the DEA for a religious exemption from the federal anti-marijuana laws have received either denials or no response at all. (National Prohibition Act, Title II, Ch. 85, section 3, 41 Stat. 308 [1919].)
The Religious Freedom Restoration Act
Faced with the Supreme Court's decision in the 1990 peyote case discussed above, numerous religious groups banned together, lobbying Congress for a federal law that would protect religious practice by reestablishing the compelling state interest test in free-exercise cases. As a result of the efforts of these groups, Congress passed The Religious Freedom Restoration Act (RFRA) which was signed into law by President Clinton on November 16, 1993.
compelling governmental interest in controlling the use and illegal distribution of marijuana in the United States.
Mr. Olsen did not give up. He continued the fight by filing suit against the DBA. The case eventually ended up in the federal court where Ruth Bader Ginsburg was a judge prior to being appointed to the United States Supreme Court. Judge Ginsburg followed the predictable path first set out in Dr. Leary's case, parroting another court's finding that "every federal court that has considered the matter ... has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare."
She concluded that it was simply not feasible to permit a religious exemption for marijuana use because, under Mr. Olsen's proposal, the government would have to supply marijuana to the church on a regular basis, and it would be nearly impossible to monitor the church members' use of the marijuana. She noted that between 1980 and 1987, the DBA seized over 15 million pounds of marijuana, and expressed her concern about "the immensity of the marijuana control problem in the United States." Judge Ginsburg concluded, "the DBA cannot accommodate Olsen's religious use of marijuana without unduly burdening or disrupting enforcement of the federal marijuana laws ... [T]herefore ... the Free Exercise Clause does not compel the DBA to grant Olsen an exemption immunizing his church from prosecution for illegal use of marijuana." (Olsen v.DEA [DC dr. 1989] 878 F.2d 1458.)
Evidently, unless the Catholic Church makes a radical departure from its current practice, and replaces communion wine with communion marijuana, the courts will remain willfully blind to the spiritual importance of the Cannabis plant. It's particularly aggravating to note that during Prohibition, the federal government found it completely manageable to exempt the Roman Catholic Church. To put it very simply, to date,nobody has presented a winning religious defense to a marijuana crime. Likewise, those who have directly petitioned the DBA for a religious exemption from the federal anti-marijuana laws have received either denials or no response at all. (National Prohibition Act, Title II, Ch. 85, section 3, 41 Stat. 308 [1919].)
The Religious Freedom Restoration Act
Baced with the Supreme Court's decision in the 1990 peyote case discussed above, numerous religious groups banned together, lobbying Congress for a federal law that would protect religious practice by reestablishing the compelling state interest test in free-exercise cases. As a result of the efforts of these groups, Congress passed The Religious Freedom Restoration Act (RBRA) which was signed into law by President Clinton on November 16, 1993.
The express purpose of the RFRA is to restore the compelling state interest est, after "the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward -eligion."
The RFRA explicitly states:
(a) In General
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of Vhis section.
(B) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. (42 USC. sec. 2000bb -1.)
The RFRA reestablishes the requirement that laws burdening religious practice must pass the test of compelling state interest. It does nothing, however, to counter the effect of decades of anti-marijuana propaganda that has previously been used by courts to find that even under the compelling state interest test, permitting religious use of marijuana would excessively damage the government's interest in prohibiting drug use, and maintaining the health and welfare of individuals and society. What is needed now, therefore, is the amassing of scientific proof showing that a religious user of marijuana causes no harm to his health or to society in general. With a sufficient amount of such research, the courts may, someday, find that a person's religious use of marijuana is not harmful to the government's interest in controlling drugs, and hence, that the sacramental use of marijuana is protected under the recently enacted Religious Freedom Restoration Act.
larijuana, Religion, & the Law 197
The express purpose of the RFRA is to restore the compelling state interest ;st, after "the Supreme Court virtually eliminated the requirement that the ;overnment justify burdens on religious exercise imposed by laws neutral toward eligion."
The RFRA explicitly states:
(a) In General
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(B) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. (42 USC. sec. 2000bb -1.)
The RFRA reestablishes the requirement that laws burdening religious practice must pass the test of compelling state interest. It does nothing, however, to counter the effect of decades of anti-marijuana propaganda that has previously been used by courts to find that even under the compelling state interest test, permitting religious use of marijuana would excessively damage the government's interest in prohibiting drug use, and maintaining the health and welfare of individuals and society. What is needed now, therefore, is the amassing of scientific proof showing that a religious user of marijuana causes no harm to his health or to society in general. With a sufficient amount of such research, the courts may, someday, find that a person's religious use of marijuana is not harmful to the government's interest in controlling drugs, and hence, that the sacramental use of marijuana is protected under the recently enacted Religious Freedom Restoration Act.
IF YOU'RE ARRESTED
J.N GENERAL, there are only two occasions when a police officer can legally arrest a person: (1) if the officer has a warrant specifically authorizing the arrest of the person, or (2) if the officer has probable cause to believe the person committed a crime. In some states, such as California, an officer can arrest an adult for a misdemeanor only if the crime was committed in the off icer' s presence.
Arrest Warrants
Very few arrests for marijuana occur with an arrest warrant, so the subject of warrants will be discussed only briefly. Generally speaking, an arrest warrant is just like a search warrant. An arrest warrant is issued by a judge after a police officer presents him with an affidavit showing probable cause that a particular person committed a crime and can be found in his home. The officer then takes the warrant to the home and arrests the person.
Usually, the only circumstance under which an arrest warrant is absolutely required for an officer is when he seeks to arrest the person inside his own home. No warrant is needed to arrest a person outside his home in a public place, as long as the officer has probable cause to believe that the person committed a crime. Officers are well aware of these rules, and will often try to trick a person into leaving his or her house so that the person can be arrested without a warrant. For example, there are numerous cases in which police officers who have no arrest warrant go to a person's home in the hopes of arresting the person. The officers knock on the door and, when the person answers, ask him to step outside so they can talk to him. As soon as the person steps out the door, the officers can, and do, lawfully arrest him. This is another good reason why you should never open your door to a police officer who does not have either a search warrant or an arrest warrant.
If Arrested Outside, Don't Go Inside!
The United States Supreme Court has held that if a lawfully arrested person requests to enter his home before being taken to jail, the arresting officers have a legal right to accompany the person inside the residence. This rule was created by the Court after police officers arrested Carl Overdahl, a student at Washington State University. The officers arrested Carl because they observed him leave his dormitory carrying a half-gallon bottle of gin in violation of the Washington state law forbidding minors to possess alcohol. After Carl was arrested, he asked to return to his dorm room to get his identification, and the officer agreed. When Carl entered his dorm room, the officer also entered and observed in plain view what he believed were marijuana seeds as well as a seashell pipe of the type commonly used to smoke marijuana. The officer examined the seeds and confirmed that they were Cannabis, and also confirmed that the pipe smelled of marijuana. At this point, Carl and his roommate Neal confessed that there were three small plastic bags filled with marijuana in the apartment. After they consented to a search, the officers discovered forty grams of marijuana and some ***.
The Supreme Court stated that once the officers had lawfully arrested Carl, they had a right to follow him into his dormitory when Carl requested to get his ID. In the Court's words:
It is not 'unreasonable' under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety–as well as the integrity of the arrest–is compelling. Such a surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested. (Washington v. Chrisman [1982] 455 US I.)
The facts in Carl's case are not unusual. In fact, it is quite common for people to foolishly ask to return to their home to change into some different clothes before being taken to jail. As in Carl's case, most officers will gladly accommodate such a request, hoping that they will spot some plain-view contraband once inside the person's home.
In another case, a person was arrested on an outstanding warrant for failing to pay a traffic fine. Before going to jail, the person asked the officers to allow him to go inside to feed his dog. The officers happily agreed. When the officers accompanied the man inside, they detected a very strong aroma of marijuana and could see bright lights coming from underneath a closed door in the hallway. When they opened the door, the officers discovered forty Cannabis plants.
The obvious lesson to be learned from such cases is that anyone with incriminating evidence in his home should go directly to jail if arrested. There simply is no reason for returning home to change clothes, get pajamas, or feed gold fish. The jail will provide all the clothing needed, and friends can be called to take care of your pets.
Booking Searches
If you are booked into jail after an arrest, the police may conduct what is known as a "booking search." The courts have held that warrantless booking searches are justified in order to safeguard people's belongings and to keep contraband and weapons out of the jail. During a booking search, an officer may search you and anything in your possession. The jail officers can make an item-by-item examination of everything in your pockets. They can search your wallet or purse as well as all other containers.
Every so often, the police who are booking a person into jail will suspect that an arrestee is concealing drugs or a weapon inside a body cavity. In such cases, most states permit the police to conduct a strip search or a body-cavity search. However, because such searches invade the very core of a person' s privacy, most courts have held that the officer must have "reasonable suspicion" that the person is concealing contraband. Some courts go further and require probable cause. In no states can an officer perform a strip or body-cavity search merely because a person has been arrested.
Additionally, some states have further rules regulating strip and body-cavity searches. For example, in California, a search warrant is required before an officer can perform a strip or body-cavity search of a person arrested for a misdemeanor (as opposed to a felony). Additionally, the search must be conducted by someone of the same gender as the arrested person.
Miranda Rights
When the Police Must Read You Your Rights
vlany people believe that an officer must automatically read Miranda rights as >art of performing an arrest, either immediately before or immediately after an irrest is made. This is a myth.
The truth is that the only time an officer must read a person his or her Miranda ights is when: (1) the person has been taken into custody, and (2) the officer is ibout to question the person about a crime.
Therefore, if you walk into a police station and state that you want to make i confession the officers are not required to read you your rights before taking /OUT confession. However, in this situation, most officers will read you your ights just to be safe, or because they don't understand the law. Likewise, if an officer walks up to you as you leave your backyard garden and asks you what you ire growing, he need not read you your rights before you answer. In both of these jxamples,you are not in custody, so any information you volunteer to the officer tvill be admissible, despite the fact that you were never read your rights.
As a final note, your Fifth Amendment right against forced self-incrimina-lon extends only to "testimony." The courts have defined "testimony" very larrowly, as only spoken words. Therefore the Fifth Amendment does not protect >fou against self-incrimination based on the taking of your blood or body fluids.
Don't Waive Your Miranda Rights
It generally takes a police officer about five seconds to read your Miranda rights and ask if you agree to waive them. The decision to waive these rights, like any
nstitutional rights, should not be made hastily. Let's break down what an officer is telling you when he reads you your rights.First, he is saying that these are your rights. As with all the other rights discussed in this book, you should not hesitate to exercise your Miranda rights. Your constitutional rights protect you whether you are innocent or guilty.
When an officer reads you your rights, the first right he reminds you of is your right to remain silent. This right was deemed of such importance that it was included in the Fifth Amendment to the U.S. Constitution. The Fifth Amendment is usually said to protect a person from forced self-incrimination. In practice, the Fifth Amendment permits a person to remain silent when interrogated by police officers or questioned in court. In addition, the United States Supreme Court has held that if a person exercises his or her Fifth-Amendment right and refuses to answer a police officer's questions, this fact cannot later be used against the person in court. In other words, it is improper for the prosecution to comment on the fact that a person refused to answer a police officer's questions. In fact, many cases have been reversed because of a prosecutor's comment, such as, "Ladies and gentlemen, if the defendant was really innocent, wouldn't he have answered all the questions the police asked? Wouldn' t he take the opportunity to explain his innocence?" There is no reason to worry that your failure to answer the officer's questions will later be used against you. The truth is just the opposite. Anything you say can be used against you. Also, don't make the mistake of thinking that only written statements can be used against you. To repeat, anything you say, whether oral, written, taped, not taped, signed or not signed, will be used against you if the statement benefits the prosecutor's case.
Knowing that anything you say to a police officer can be used against you, why would you want to make a confession or answer questions? In just about every case imaginable, a person is best off not answering any questions about his involvement in criminal activity. The only time when it is wise to answer an j officer's questions, once you're in custody, is when you are absolutely innocent 1 of any criminal activity. In that situation, carefully answering the officer's j questions may result in your quick release. However, you must be very careful not '< to let the officer put words in your mouth.
The second right that an officer informs you of is your right to an attorney, t If you are unable to afford an attorney, the court must appoint the Public Defender' or a private attorney. This is a very important right, and is based on the Fifth and i. Sixth Amendments. Again, you should never hesitate to exercise this right. If you j request an attorney, the police officer must immediately stop questioning you and may not resume until an attorney is present.
The best way to assert your Miranda rights is to say these exact words: "I want an attorney and will remain silent until one is provided." The United States^ Supreme Court has held that this statement invokes protection of both the Fi and the Sixth Amendments, and hence provides the person with the maximu protection available under the Constitution. (Alternatively, you could invo: your rights by handing the officers the cards in Appendix B.)
Generally, the last thing an officer says when he reads you your rights is, you understand and agree to waive these rights?" This is actually two sep; questions, which officers often ask in this combined form as a way of tricki people into waiving their rights. When the questions are combined in this wayj many people hear only the first question-"Do you understand these rights? answer "yes," not fully realizing that in doing so they have just waived some their most important constitutional rights. It is very important to know that can always invoke your Miranda rights even after you have waived them (evi if the waiver was in writing). You need only state that you now wish to re silent or have a lawyer. Such a statement should bring a halt to the questioi immediately, despite the earlier waiver and despite the fact that you have al; answered some questions.
If You're Arrested
Police Interrogation Techniques
The Miranda case is important for two reasons. First, as described above, it established the rule that whenever a person is questioned while in custody, he or she must be advised of the right to remain silent and the right to have an attorney. Second, this case became an opportunity for the Supreme Court to document some of the interrogation techniques taught to police officers. While the opinion was written in 1966, the Court did not outlaw these techniques, many of which are therefore still in use today. The following quote from the Court's opinion provides some insight into these police interrogation techniques:
An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930s, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that time. In a series of cases decided by this Court long after these studies, the police resorted to physical brutality–beatings, hanging, whipping –and to sustained and protracted questioning incommunicado in order to extort confessions. The Commission on Civil Rights in 1961 found much evidence to indicate that "some policemen still resort to physical force to obtain confessions." The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked, and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party.
Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts that document procedures employed with success in the past, and that recommend various other effective tactics. These texts are used by law-enforcement agencies themselves as guides. It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country.
The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is privacy–being alone with the person under interrogation." The efficacy of this tactic has been explained as follows:
"If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law."
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already–that he is guilty. Explanations to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:
"In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable."
The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:
"Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun–for your own protection. You know him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?"
Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence that negates the self-defense explanation. This should enable him to secure the entire story. One text notes that "Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense 'out' at the time of trial."
When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the "friendly-unfriendly" or the "Mutt and Jeff act:
". . . . In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by qu ietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room."
The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a lineup. "The witness or complainant (previously coached, if necessary) studies the lineup and confidently points out the subject as the guilty party." Then the questioning resumes "as though there were no doubt about the guilt of the subject." A variation on this technique is called the "reverse lineup":
"The accused is placed in a lineup, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations."
The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely , or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. "This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses the subject with the apparent fairness of his interrogator." After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk:
"Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you,' I don' t want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over."
Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly. (Miranda v. Arizona [1966] 384 US 436.)
The point here is that once you have been arrested, police officers are not your riends. Don't believe anything they say and do not try and explain anything to hem. They are trying to get incriminating statements out of you and often don't >ut any other statements in their reports. All defense attorneys agree: if you are ;ver arrested assert your Fifth Amendment right to remain silent.
The Right to Counsel
[t should be clear from the information in this book that our criminal-justice system is adversarial. If you are suspected of committing a crime, the resources of the state and/or federal government are marshaled against you. The police will do their best to arrest you and get your confession. Detectives will do their best to gather evidence against you, both physical and testimonial. Forensic scientists employed by the prosecutor will work to examine the evidence and relate it to your guilt. At trial, the government is represented by a prosecutor whose goal is to prove, beyond a reasonable doubt, that you are guilty of the crime charged. Fortunately, the Sixth Amendment to the United States Constitution states "in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense." The boundaries of the right to counsel have shifted over time. Currently, the Supreme Court has held that, despite the clear language of the Sixth Amendment, the right to counsel does not apply in all criminal prosecutions. Rather, the Court has ruled that the right to counsel only extends to cases in which the defendant can actually be sentenced to jail. Theoretically then, you can be criminally prosecuted and denied the right to counsel so long as the actual punishment you receive is "only" a fine and you receive no jail time. Consequently, in most states, if you are charged with "petty offenses," such as traffic citations, or a marijuana crime that is punishable only by a fine, you may not be entitled to an attorney at the state' s expense. Practically speaking, however, most marijuana crimes do carry the potential penalty of imprisonment; hence, if you cannot afford an attorney one will be provided.
Public Defenders and Court Appointed Attorneys
Most people who are charged with crimes cannot afford an attorney. In such cases, if the defendant could receive imprisonment as a punishment, the government will provide the defendant with a public defender or a court-appointed attorney.
Public defenders often get a bad rap. Many people believe they are untrained pawns of the government who get paid for walking the defendant through the system to a quick conviction. This viewpoint is inaccurate. First, despite the widespread belief to the contrary, public defenders are attorneys. They have been to law school and have passed a rigorous exam just like all other attorneys. -Additionally, because public defenders who handle misdemeanor cases are often 1 young attorneys just out of law school, they are usually well versed on the latest < legal trends and are up-to-date on the rules of law and evidence. Similarly, also ! because they are often young, many public defenders are enthusiastic about their \ job and see themselves as legal warriors fighting for the rights of the poor and s underprivileged. Such a public defender is often a strong advocate. Lastly, J because public defenders handle a large case load of nothing but criminal cases, | they are usually very familiar with the local judges and district attorneys, as well | as with the standard punishments for particular crimes.
Of course, there are some disadvantages to having a public defender. They are usually very overworked, often carrying three or four times as many cases as a private attorney. A public defender can therefore rarely spend as much time on your case as a private attorney. Similarly, if your case is extremely complex, requiring lots of investigation and expert testimony, the public defender may have difficulty getting an approval to spend the money necessary to do the job properly.
All in all, however, representation by a public defender is usually better than most people think. Your biggest problem will be getting your public defender to focus on your case. Do whatever you can to keep your name and case in the public defender's mind. Don't be afraid to politely, but regularly, check in to get an update on the case. Also, ask him or her what you can do to assist in your defense (for example, locating witnesses, taking photographs, etc.). The old saying about "the squeaky wheel getting the oil" is definitely appropriate when it comes to public defenders and their heavy caseloads.
In some situations, rather than receive a public defender, you may be provided with a private attorney whose fees are paid by the government. There are two ways this can occur. First, in some counties there is no public-defender organization. Rather, the county maintains a list of private attorneys who are appointed by the court to represent indigent defendants. Therefore, if your county has no public-defender office, you will receive a private court-appointed attorney. The second way to receive a private attorney at little or no cost to you is if your case involves other defendants in addition to yourself. Often in cases with multiple defendants, the court will require each defendant to have his or her own attorney. The public defender can represent one such defendant, but then private attorneys will be appointed to represent the remaining defendants.
As with public defenders, there are advantages and disadvantages to receiving a court-appointed attorney. On the positive side, most court-appointed attorneys will have more time to spend on your case than a typical public defender, because unlike a public defender, a private court-appointed attorney can turn down cases when he feels he is becoming overburdened. On the negative side, many attorneys who are appointed by the court to handle misdemeanor cases are extremely inexperienced at handling criminal matters. In fact, many counties allow any attorney to receive misdemeanor appointments. Many young attorneys who are just starting out in practice apply to receive misdemeanor appointments. This means that an attorney who has just passed the bar exam, and who has never even been inside a courtroom before, could be appointed to handle your misdemeanor case. Fortunately, if you are charged with a felony, most counties will require your appointed attorney to have proven experience in criminal matters. In fact, if you are charged with a felony and given a court-appointed attorney, you may very well get an expensive attorney whom others would pay thousands of dollars to retain.
Choosing a Private Attorney
For people who can afford to hire their own attorney, the selection process can be confusing. If you are charged with a marijuana or other drug crime, you need a trial attorney that handles only criminal cases and preferably one who specializes in drug cases. You don' t want an attorney that handles business matters, divorces, and wills. Such attorneys spend almost all their time drafting legal documents, spend little time in court, and generally have little trial experience. Additionally, although twenty years ago a lawyer could be a general practitioner and remain competent to handle criminal matters, today the criminal laws are so complex and ever-changing that a "jack-of-all-trades" lawyer cannot possibly represent you as well as a focused criminal lawyer can.
Again, what you need if charged with a marijuana crime is an attorney who handles nothing but criminal cases. If you know a judge, a court bailiff, or a court reporter, ask them to recommend a good criminal attorney in your area. Think twice about using an "attorney referral service." Many such services are filled with brand-new attorneys or unsuccessful attorneys scraping to make a living. If you use such a referral service, ask the service what qualifications an attorney must have to be a member of the service. Reject any service whose attorneys are not experienced at handling criminal cases.
For most marijuana cases, it is usually best to retain an attorney who has a solo practice or is a member of a law firm with no more than 5 lawyers. With a sole practitioner you know who is handling your case and hence whom to contact with any new information, or to get an update. Often larger law firms have several attorneys work on a file. In theory there should not be a problem with this practice. Some people like the idea of having several attorneys working together on their case. Such representation may be valuable if each attorney is interested in your case and effectively communicates his thoughts to the other attorneys working your case. In practice, however, problems often arise because no single person is fully involved, and therefore fully prepared, in all aspects of the case. Likewise, large law firms often employ paralegals and law clerks to conduct legal research and to prepare many of the legal motions and memoranda filed in court. Why pay a big firm to handle your case when a paralegal is doing much of the work?
Criminal defense attorneys can be located by thumbing through the yellow pages, or by asking around among your friends. When looking through the yellow pages, you will see many criminal defense attorneys who advertise that they began their careers by working for a prosecuting agency before going out on their own. These attorneys are often very experienced. However, I would not recommend such attorneys, simply because their employment history indicates a fundamental ideological problem: they used to earn their paychecks by convicting people who smoke or grow marijuana! Rather than hire such an attorney, look for one who presents himself or herself as ideologically opposed to the government's prosecution of people for marijuana crimes. You want an attorney that really believes in the case he or she is fighting for. Such an attorney is more enthusiastic, a harder worker, and often more effective. Therefore, look for someone that has never worked for the government as a prosecutor. Prior experience as a public defender may be advantageous, suggesting that the lawyer cares about defending people.
Once you have selected several attorneys you think might be good, call them and arrange a free consultation. Almost all criminal attorneys will meet with you for free to hear about your case and quote you a fee. Set up several such interviews on a single day and choose the attorney that most impresses you and whose fee you can afford. You should retain the attorney who is most enthusiastic about defending you, intelligent, and very well-versed on defending marijuana cases.
Attorney Fees
Today, most criminal defense attorneys charge a flat retainer fee rather than billing by the hour. It is very important to clearly understand what services are covered by the retainer. For example, you should make sure you understand (and that the retainer agreement clearly spells out) whether or not the following services are covered by the retainer: copy charges, computer research charges, pretrial motions, and most importantly, trial fees and appeal fees. You might also want to make sure that the attorney you are meeting with will be the actual attorney handling the case and appearing in court on your behalf. Unless it's spelled out that a particular attorney will be handling the case and making all appearances, some law firms might use an experienced attorney to obtain your retainer, but send inexperienced attorneys to handle your court appearances.
Private Investigators
An important part of your attorney' s job is to coordinate the investigation of your side of the case. In contrast to murder or other complex cases which might involve numerous eyewitnesses, and dozens of pieces of evidence, the typical marijuana case usually doesn't require a lot of investigation. In some marijuana cases however, your attorney might want to retain the services of a private investigator. As mentioned earlier, you should make clear to your attorney that you have the final say as to whether or not a private investigator will be retained. That way prior to spending lots of money on an investigator, your attorney will have to come to you, explain why he thinks an investigator is necessary, and get your approval before incurring investigator expenses.
Working With Your Attorney
Fighting a marijuana charge is a collaborative effort. Your attorney knows the law, but depends on you to tell him or her the facts. Defense attorneys take the attorney client privilege very seriously, and you should feel perfectly safe discussing your case with your attorney.
All private conversations about your case between yourself and your attorney are privileged .This means that no one, not the police, not the prosecutor, not your parents or spouse, and not the court, can find out what the two of you discussed. The privilege applies to all private communications with your attorney, whether in person, over the phone, or in writing.
Whenever you meet with your attorney, you should listen very carefully and answer the questions he or she asks you. It is to your advantage to answer the questions as truthfully and as accurately as possible. Your head holds the greatest advantage you have over the prosecutor. Both the prosecutor and your attorney have the police reports, but only your attorney is privy to you. Most attorneys handling marijuana cases prefer to know everything –all the facts–whether good or bad. (There is a small group of attorneys who just want to know certain information. For technical reasons pertaining to attorneys' ethical duties, these attorneys will ask you very specific questions directed at getting the information they want to know while avoiding learning something that they don't want to know.)
Your attorney might give you a copy of the police report and ask you to
carefully review it and point out any inaccuracies or omissions. Many attorneys
will ask you to go home and type out an honest and complete account of the
pertinent information surrounding your arrest. Such information will allow your
attorney to capitalize on sloppy or corrupt police work. Equally importantly, by
knowing the negative or incriminating information ahead of time, your attorney
can carefully avoid dangerous subject areas in court and be prepared to minimize
and counter the impact of such information if it comes out in court. Your private
written statement also helps your attorney by making available your account of
the facts while working on your case before it gets to trial. As discussed above, \
there is no way that your statement can get into the wrong hands, so don' t be afraid
to write down everything your attorney requests. You do not want your attorney
to be caught by surprise during the trial.
I Not only should you answer all your attorney' s questions, but you should also 1 follow his or her advice. If you're convinced that your attorney is giving you bad ' advice, fire him or her and get another attorney. The worst thing to do is stay with an attorney without following his or her legal advice. It is extremely important that you understand the advice that your attorney is giving you. If you have a good attorney, you should feel completely comfortable asking every single question you have. Failure to fully understand the advice will result in failure to follow the advice, which can lead to disaster. Remember, you are paying your attorney for legal advice; you must understand it or it is less than worthless.
Once your attorney has a good grasp of the facts in your case, the two of you will discuss your general strategy. Case strategy varies depending upon the strengths and weaknesses of the facts, as well as the client's wishes.
You have a right to a trial even if the facts in your case are quite incriminating. As discussed earlier, the prosecutor in a criminal case has the burden of proving yourguilt. You do not need to prove your innocence. Defense attorneys go to trial on many cases in which the facts are incriminating and by cross-examining the witnesses against their client, try to raise a reasonable doubt in the minds of the jurors. (As discussed in Chapter 2, you can be convicted only if the jury finds you guilty beyond a reasonable doubt.)
Your attorney can advise you of your chances of winning if you take your case to trial. If he is a private attorney he will also tell you how much he will charge to try your case. You are the one who must make the final decision as to whether or not to go to trial based on your chances of winning, the punishment if you lose versus the punishment if you strike a plea bargain, and the cost of paying your attorney's fees.
A person in jail whether before, during, or after trial, is not entitled to much privacy. You should assume that every phone call you make from jail is recorded and monitored by the jail staff. You should also assume that the visiting booths used to visit your family and friends are electronically monitored Even the letters which you send out and those which you receive will be opened and, in some detention facilities, read. In all of the above instances, anything you say or write can and will be used against you.
About the only circumstances in which you can feel safe speaking about your case while you are in jail is when you are speaking to your attorney in a special room set aside for attorney-client visits. It is illegal for the government to monitor conversations with your attorney which occur in these booths. Also, if you write any letters to your attorney while in jail, you should clearly mark the outside of the envelope "Confidential Attorney Correspondence." Such communications are covered by the attorney-client privilege and remain private. Your attorney should mark all his letters to you with the same notice. Be sure and inform him if you think that his letters are being opened by the jail staff.
Release Pending Trial
In the vast majority of marijuana arrests, the defendant is taken to the police station, booked, and immediately released with a promise to appear in court on a given date. However, if you are arrested for a possessing, cultivating, or transporting a large amount of marijuana, or if weapons or other signs of violence are linked to your marijuana crime, you might be held in custody following your arrest. In order to get released pending your trial, your attorney will have to convince the judge that you should be released on your own recognizance (OR release) or that your bail should be set low enough for you to afford.
The issue of OR release or bail reduction is usually raised during your first appearance before the judge. Whether you will be OR'd depends entirely on the facts of your crime and on your criminal history. You should be OR'd if yours is a small-time marijuana crime and you have never been convicted of a crime before. However, if your marijuana crime involves a high degree of sophistication, a large amount of marijuana, if your record is not perfect, or if there is any reason to fear that you might flee, the judge will most likely set bail.
To administer the bail system, most counties have established bail schedules. These schedules list various crimes and attach a suggested bail amount to each crime. The judge will start with the guideline amount and then increase or decrease your bail based on arguments presented by the prosecutor and your attorney. The judge will be trying to determine if you are likely to flee the area if you make bail, and whether or not you are a threat to a particular person or to the community at large. Your attorney will need to argue that you are not going to run or hurt anyone by showing that your crime was victimless and did not involve weapons, threats, or violence of any kind (if this is, in fact, the case). To
A person in jail whether before, during, or after trial, is not entitled to much privacy. You should assume that every phone call you make from jail is recorded and monitored by the jail staff. You should also assume that the visiting booths used to visit your family and friends are electronically monitored Even the letters which you send out and those which you receive will be opened and, in some detention facilities, read. In all of the above instances, anything you say or write can and will be used against you.
About the only circumstances in which you can feel safe speaking about your case while you are in jail is when you are speaking to your attorney in a special room set aside for attorney-client visits. It is illegal for the government to monitor conversations with your attorney which occur in these booths. Also, if you write any letters to your attorney while in jail, you should clearly mark the outside of the envelope "Confidential Attorney Correspondence." Such communications are covered by the attorney-client privilege and remain private. Your attorney should mark all his letters to you with the same notice. Be sure and inform him if you think that his letters are being opened by the jail staff.
Release Pending Trial
In the vast majority of marijuana arrests, the defendant is taken to the police station, booked, and immediately released with a promise to appear in court on a given date. However, if you are arrested for a possessing, cultivating, or transporting a large amount of marijuana, or if weapons or other signs of violence are linked to your marijuana crime, you might be held in custody following your arrest. In order to get released pending your trial, your attorney will have to convince the judge that you should be released on your own recognizance (OR release) or that your bail should be set low enough for you to afford.
The issue of OR release or bail reduction is usually raised during your first appearance before the judge. Whether you will be OR'd depends entirely on the facts of your crime and on your criminal history. You should be OR'd if yours is a small-time marijuana crime and you have never been convicted of a crime before. However, if your marijuana crime involves a high degree of sophistication, a large amount of marijuana, if your record is not perfect, or if there is any reason to fear that you might flee, the judge will most likely set bail.
To administer the bail system, most counties have established bail schedules. These schedules list various crimes and attach a suggested bail amount to each crime. The judge will start with the guideline amount and then increase or decrease your bail based on arguments presented by the prosecutor and your attorney. The judge will be trying to determine if you are likely to flee the area if you make bail, and whether or not you are a threat to a particular person or to the community at large. Your attorney will need to argue that you are not going to run or hurt anyone by showing that your crime was victimless and did not involve weapons, threats, or violence of any kind (if this is, in fact, the case). To argue that you are not likely to flee the area, your attorney will try to demonstrate that you have strong ties to the community by showing that:
You're employed or attend school in the area.
You rent an apartment or, better yet, own a home, in the local area.
You have resided in the area a long time. You are married and your spouse lives and works in the area. You have children in school in the area.
If your record is supportive, your attorney will also argue that you have never been in trouble before, or, if you have been, that you have always appeared in court as directed. Your attorney can also argue (and in fact the prosecutor may try and demand) that your release on bail contain a condition that you stay away from certain areas and not associate with certain people, or stay employed or in school. Sometimes, agreeing to such release conditions will convince a judge to set bail at a reasonable amount.
It is legal for a judge to deny bail in certain circumstances. However, this is very rare in marijuana cases, and will only occur if a cache of weapons is found, or there is clear evidence that you are a danger to someone if released. Although a judge rarely denies bail in a marijuana case, it is quite common for the judge to set bail at an amount too high for the defendant to financially post.
For example, in one case, Mike was arrested for cultivating over 70 Cannabis plants in his basement. When he was taken to jail, he felt intimidated by the other inmates, and wanted to show them he was tough. Mike waited in line to use the phone and when it was his turn, he picked up the phone, acted like he was dialing, and then said to the imaginary person on the other end, "I know why I was arrested. Joey talked. I want you to hurt him real bad." Unfortunately, Mike was overheard not only by his fellow inmates, but also by a deputy police officer standing nearby. This officer quickly wrote down a report of the conversation and it was used against Mike during his bail hearing. Because of these statements by Mike, the judge set bail at $250,000, when the bail schedule was only $5,000 for the cultivation offense. Because of Mike's ploy, his attorney was unable to get the bail reduced, Mike could not make bail, and he was forced to stay in jail for two months pending his trial.
How Bail Is Paid
In the vast majority of cases, bail is paid in one of two ways. The best way, if you are lucky enough to have the money, is to post cash bail. For example, if your bail is set at $5,000, you simply pay the jail cashier $5,000 and you're out.
Since most people don't have thousands of dollars lying around, the most common method of making bail is to contact a bail bondsman. In most jurisdictions, you pay the bondsman about ten percent of the bail amount, and he posts a bond with the court for the full amount of the bail. For example, if your bail is set at $5,000, you can pay a bondsman $500 and he will post a $5,000 bond with the court. He will also require collateral equal to or greater than the bond amount. The bondsman keeps your $500 no matter what happens. It's gone forever. If you make all your court appearances, the court releases the $5,000 bond back to the bondsman who then comes out $500 ahead. If you skip bail (leave the area or fail to go to your court appearances) the court will take the bondsman's $5,000 bond and whatever you used as collateral will become his. In addition, the court will issue a no-bail warrant for your arrest. This means that if you are ever stopped by a police officer and he runs a warrant check, you will be arrested and taken back to jail. If that happens, you will not only be facing the original marijuana charges, but also the additional charge (usually a felony) of jumping bail. To make matters worse, the judge will probably deny you bail, so you'll end up spending several months in jail while you await your trial date.
Tips On Going To Court
Before the actual trial, there will be several court dates where preliminary matters will be hashed out. In some jurisdictions, your attorney can appear at these proceedings without you. However, in other jurisdictions, you will be required to appear personally at every court date. One of the worst things you can do is fail to appear for a scheduled court date. In most cases, the judge will issue a warrant for your arrest and, unless you have a great excuse, the judge will thereafter treat you like an untrustworthy deadbeat. Obviously, it's best not to upset the judge.
The second worst thing you can do is show up late to a court date. Make it a point to arrive at the court house at least 20 minutes early. Parking around courthouses is always difficult, and it's often a confusing mayhem inside, as defendants are transferred from one courtroom to another.
As soon as you walk into the courtroom, even if there are many other people there, you and anyone who is with you should be on best behavior. The basic rule is to behave respectfully toward everyone. Little things can make a difference. Listen to what the bailiff tells you, and follow his orders promptly and politely. When the judge speaks to you,you should look him or her in the ey e, and end your sentences with "... your honor." Also, dressing up makes a positive visual impression on the judge and indicates that you take the charges seriously and have respect for the court. Remember, many judges have very big egos, and fully expect to be treated like royalty. It therefore behooves you to treat the judge with utmost respect.
The real theater starts when your trial begins. By then your attorney will have settled on the general theory of the defense to be presented. As soon as the jury is brought into the room you'll want to give the impression that you are a kind, gentle and decent person. Remember, even if you never take the stand to testify, your actions are continually being judged by the jurors. Jurors will look to see how you react to certain testimony and evidence. They'll look to see how you relate to your attorney. They'll look to see how you relate to your family and friends and whether they look like "decent" people. They'll also look to see how you relate to the bailiff, the court clerk, and the court reporter.
During trial, stand up and face the jurors whenever they enter or leave the j
courtroom. Try to make nonthreatening eye contact and look like the innocent *
and decent person you are. Don't talk to jurors in or out of the courtroom. Watch !
what you do and say even in the hallways of the courthouse, because it is very j
possible that a juror will be watching.
Cleaning Up a Marijuana Conviction Record
Supposing the worst has happened, and you've been convicted of a marijuana. offense. Is there anything you can do to make it all better? Well, in some states, for certain marijuana convictions, the answer is "yes."
For example, in California, if, after December 31,1975, you were arrested or convicted of either (1) possession of any amount of marijuana (but not for sale), or (2) offering to transport, transporting, offering to give away, or giving away less than one ounce of marijuana, then your record will automatically be destroyed two years after your arrest or conviction. This happens only if you successfully complete all the terms of your sentence.
If your marijuana arrest or conviction occurred/jn'or to January 1,1976, you can still get your records destroyed, but it is slightly more difficult, and will cost you a few dollars. Here's the rule: If, prior to January 1,1976, you were arrested or convicted of either (1) possession of any amount of marijuana (but not for sale), or (2) possession of paraphernalia used to smoke marijuana, or (3)visiting or being present in a place where marijuana was being used, or (4)being under the influence of marijuana, you can get your records destroyed by submitting a simple form to the Department of Justice (DOJ).
The form is very simple to fill out, and can be obtained from any police or sheriff's station, or by writing or calling the California Department of Justice. Tell them you want the form titled "Application to Destroy Arrest/Conviction Records" and that this is pursuant to Health and Safety code section 11361.5(b).
Once you get the form, simply fill in the boxes, write a check for $37.50 (the cost as of this writing), and send it off as the form instructs. Occasionally, the DOJ has problems finding a person's records, and in such cases requests a copy of your fingerprints within fifteen days. Most defense attorneys advise their clients to go ahead and submit their prints. Others are less trustful, and advise their clients to drop the whole thing if the DOJ makes such a request. The decision in such a case is yours.
Assuming everything goes well, the DOJ will soon notify you by mail that II records held by the DOJ, the FBI, the local police agency that arrested you, the robation department, and the DM V concerning your arrest/conviction have been destroyed.
Once your records have been destroyed, either automatically or by sending i the form and receiving a confirmation by the DOJ, you can legally answer that ou have never been arrested or convicted for those crimes. Likewise, no public gency like a real-estate licensing board or medical board can deny you a rofessional license because of your arrest/conviction.
