STACKING THE DECK
D.I Blewitt, j.d.
At the risk of totally boring my audience by beating the Green Tongue topic to death, I feel this insatiable urge to write further on the subject. Mainly, because I keep having these flashes and hallucinations which cannot be due to any chemical inhaled or ingested. Nor can it be due to anoxia, because, unlike some people, I am aware of where I have my head. I was told that by my clients that dropping acid would cause hallucinations and visions, both pleasant and unpleasant.. However, I have the feeling that the rest of the world is tripping, and not thinking, driven by addiction. The addiction is not to drugs, but to money. My latest experience demonstrates the convergence between the Green tongue phenomenon and law enforcement’s decade’s long addiction to drug money. It became clear on a Friday, when I drove to rural Colorado, for a hearing involving green tongue. It was a
long drive and gave me time for reflection. It also caused me to contemplate what has caused my apparent disconnect with the establishment and their thinking as well as contemplating my navel..
My client was charged with driving under the influence of marijuana. There seems to be a lot of that going around lately. It is strange that there was very little prosecutions in the days of psychedelic hippy vans and stoners driving around. He was arrested, searched, booked, told to pee in a bottle. Now he faces fines and imprisonment for a questionable criminal offense. The defendant, after passing a parked highway patrolman staking out a rural post office watching for seatbelt violations and looking for other revenue generating violations, was arrested for not wearing a seat belt. He was pulled over and ticketed for defective vehicle and not having his seat belt fastened, both twenty-five dollar fines. While stopped, he was also cited for driving under the influence of marijuana, taken to jail, forced to publicly pee in a bottle, have his old car impounded and wait until his mother could drive him home. All because the officer smelled a strong odor of raw marijuana and a faint odor of burnt marijuana coming from the car. Although the patrolman followed the defendant for the full mile during which the officer observed absolutely no erratic driving, he was convinced that the defendant drove his vehicle while under the influence of marijuana. How can he be so sure? Well, that’s easy. When he smelled the raw marijuana, he asked the driver if he had been smoking any. The driver said no. The patrolman told the driver to stick out his tongue. And, as the officer testified in court, the tongue was green, which meant, according to the classes he took from the state patrol, meant that the person had smoked marijuana (or medicated himself, using the new terminology) within the last two hours. The officer’s testimony was followed at the hearing by a drug recognition expert who, as an expert, arrogantly testified under oath that since the defendant’s tongue was green, he was driving under the influence of marijuana. Just to make sure, the district attorney presented the toxicology laboratory director from the Colorado Department of public health, laboratory services division. Although only a urine test was given to defendant, and it is commonly agreed by forensic chemists in civilized jurisdictions that urine tests measure nothing but the metabolite and not the active ingredient of marijuana, the state of Colorado expert testified that she could still state beyond a reasonable doubt and with scientific certainty that the defendant drove while under the influence of marijuana. Say what? Yes, because officers never lie, they had a drug recognition course, and because she reviewed the reports of the officer and the drug recognition expert who both wrote in their reports that the defendant had a “green tongue.”
She testified that she was a forensic chemist but admitted only having two chemistry courses, both at a lower division level. She also admitted that she was not a chemistry major at New Mexico State. She then said she was confused because she was a double major in chemistry and biology. When that didn’t sell, she said she had exaggerated at other hearings because her degree was in biochemistry. She also stated that she was an instructor of drug policy at the University of Colorado, which he admitted under cross-examination may have been exaggerated because she was a graduate student instructor, who dropped out of a Ph.D. program in pharmacy. (With 2 chemistry courses?) She was a director of a lab, not because of her great chemical or forensic ability, but because she had a masters of public administration.
Years ago a client of mine whose escapades were described by a Federal Court of Appeals Judge as a “foray by the defendant to fleece the lambs of the land,” counseled me to never get into a game where they’re using a stacked deck. Since he was a card mechanic, I knew that he knew to what he was referring and I have always tried to follow his sage advice. And, because he wised me up quite a bit in the ways of the world, I assumed that I would never see a stacked deck, or at least be in a game where one was used. I. I was wrong. Not only was the court hearings the functional equivalent of a deck stacked from top to bottom, but they were dealing from the bottom. All players were in on the rigging of the game except the defendant and me.
A sociologist at the University of Colorado tracked down the origin of the Green tongue, establishing that it was what lawyers refer to as “VooDoo science.” Needless to say, that the myth didn’t come from any people with field experience or first-hand experience with the subject matter. I suppose that is because stoners can’t write or hang out with uptight police type, and, as I have often observed, can’t put a coherent sentence together. The source identified was a training manual for drug recognition experts, developed and presented by the International Association of Chiefs of Police. Police can enroll in courses and become drug recognition experts, taught by police, with materials written by police, paid for by police and participation restricted to police. No one not affiliated with law enforcement can attend any of these classes and become a drug recognition expert. Therefore, there aren’t any outside controls or feedback on the curriculum. The University sociologist traced the rumor to a doctor Barry Logan, in an NHTSB publication known as “Drugs and Human Performance Fact Sheet.”
Logan is associated with Frederic Rieders Family Renaissance Foundation of
Pennsylvania. Logan immediately contacted to the real writer, a Chuck Hayes. He then wrote a self-serving warning that they should be very careful about stating that these are listed under “possible indicators.” They also amended the instructor manual to read, “Point out that there are no known studies that confirm Marijuana causing a green coating on the tongue.” I bet. The statement wasn’t taken out, it was just modified with a CYA statement to ward off future ass bites. It was done in such a way that a Drug Recognition Expert could still make the statement and qualify it if caught on cross examination, by stating that it was not based upon research but reported by many class attendees.
The reason this type of situation occurs is that the system is corrupt and based upon a false hallucinogenic premise that businesses good and government as bad. Business can be efficient because businesses have no courts to deal with and experience very little oversight. Business people and government officials feel stifled by a court and when the courts don’t agree with their plans, they claim that the courts are staffed by activist judges. It was these same activist judges that let the corporations such as Blackwater kill people, torture people, and steal. The corporations operated with impunity because there was no oversight by the courts. The same reasoning allows the confiscation of cars boat and houses that are used in the drug trade. Small jurisdictions are having difficulties maintaining all the court ordered programs for DUI, drugs, shoplifting, domestic violence, etc. These people believe that offenders should pay the costs of law enforcement. This dynamic is most obvious in the drunk driving laws, where the thresholds for the offense are lowered every time the legislature meets. As one former Department of Revenue director once stated, the system has pretty much contained the problem drinkers and generally have removed them from the streets. Now, we are starting to arrest and process middle-class people because we have run out of subjects. The former director was so indoctrinated by his employer that he failed to see that arresting and processing middle-class people is what is necessary to keep the programs running. Poor people can’t pay for all of the therapy treatment and programs. They cost the system money. In order for private enterprise to thrive in replacing government is to deal with people with money. The government has gone from a service model to a business model, with traffic courts as great profit centers. So, although it’s been established in many courts that the forensic chemist witness has exaggerated or even committed perjury, she was still allowed to testify resulting in conviction or jail. Right outside the door of the courtroom in which officials testified, was a poster that asked a
question, “can you afford $10,000?” If not the sign states, don’t get arrested for drunk driving.
Years ago the government did a sting operation called “operation swordfish.” Agents, posing as bankers, talked drug traffickers into giving them large amounts of cash for processing or, as the government likes to refer to as money laundering. My client was recorded on an audiotape counting out $1.3 million in cash to a government agent at a meeting in a local Hotel. The agent took the money out into the hall, and after walking 2 doors away took an elevator to the lobby. The agent walked through the lobby and out into the parking lot and turned the money over to another agent who was monitoring the transaction in the car. You could hear the agent counting on that tape, but when she got to $800,000 she stopped. On cross examination, when asked what happened to the $500,000, the agent replied that “counselor, your client was stoned and couldn’t count.” Now, I have known that many stoners in my career, but none of them could not count or account for a half million in cash, no matter how stoned. Just to make sure that the agent didn’t lie and lost the money between the room and the car, I filed a motion to dismantle the hotel elevator to assure myself that the half million dollars were not lost there. Of course, that motion was denied.
One would seem, in light of the recent election in which some Larimer County judges were not reelected to office because of overzealous prosecution, (in that case hiding favorable evidence and possibly committing perjury) that prosecutors would be more careful. However, they are not. Prosecutors are rarely sanctioned or prosecuted. If it weren’t for the fact that the two Larimer County judges cost the county at least $8 million they would probably still be sitting on the bench today. The fact of the matter is that the trial judge presiding at the trial allowed them to present groundless evidence and withhold evidence from the defense was not doing the job as an independent third branch of government. Prosecutors knew they could cut corners, because all prosecutors know that the Judiciary tends to be pro-prosecution, because of the fixation on efficiency and all the law and order cop shows on TV. All a person has to do is look at the questionnaires that are given lawyers and public about judges to see what the priority is. They ask about demeanor and how well the judge can handle his docket. Fairness is not mentioned. The Larimer judges were comfortable because the lawyers in Larimer County were afraid to cross the judges for fear of retaliation against clients when they appeared in front of them. The judges probably wouldn’t do anything to the lawyers, but they might be tempted to punish the lawyer’s client.
So it would appear that people appearing in the County Court, unlike Mr.
McMasters will continue to get framed and have to pay out thousands of dollars because their cases neither are highly publicized or blatantly egregious. As the chemist said in court, 90% of the drug recognition cases resulted in the experts recognizing the drug. Now, if there is a 90% chance that a defendant took the drug, the overall probability is the taking and impairing is 81%. If the probability of another element of the offense again is 90%, the total probability of guilt is 72%. That doesn’t look like very good odds to me, nor does it look like proof beyond reasonable doubt particularly if there were 2 more variables calculated at 90%. The chances of guilt then go down to 50%. The only way my poor client has a chance is because Law Enforcement Against Prohibition expressed an interest in participating in the case as well as a San Francisco group referred to as Safer Access Now. Even with those organizations entering as amicus, the defendant stands a pretty fair chance of conviction. Not because he is guilty, but because it is safe to think that the monster that has been created called the Justice system protects us. Someday, the people might get interested in what is happening to their fellow citizens without the occurrence of a false imprisonment for many years and having to pay several millions of dollars to the citizen. It is also possible that judges again try for fairness rather than placating the press. If a defense attorney did what the Prosecutor and Judge did in the green tongue case, he would be disbarred, but not prosecutors of police.
Why? Because of simulacra. The real world can’t live up to the fantasy one created by the media in which all prosecutors are saints, arrestees are always guilty, policy doesn’t have to be debated and officials obey their oaths of office. Until then, image will take precedence over justice.
- Posted in: Drug War