FROM A PAST PUBLICATION BY ME
POWER FROM THE PEOPLE
“What’s different now?” or, “How can you represent someone when you know their Guilty?” I’m asked these questions all the time. The thing that frosts me the most is how these ignorant questions are asked and why questions are asked when people obviously don’t want a reply, but, instead want verification of their bigotry by arguing or other confrontational conduct. They act soooo self-righteous and superior. They would never represent someone who is guilty. No, not them! They follow orders and try not to think about what they learned in high school civics.
So, I will try to answer the questions for myself. I can see how people can’t appreciate the change that has occurred over the last half century. People rarely can. With email, computer messaging, phones, etc., pressing the flesh in live interaction is rare. Thus, interpersonal relations cease being interpersonal. People don’t experience social context much. Eye movement and body language are missed. The quick sound byte seems to suffice and people can then go on with their lives and activities. We have become a literal society. Power to define now dictates the interpretation. That is by the writing without nuance. The reader, then, has not comparative basis for sarcasm, jest, threat, illusion, delusion or any other interpretation. Communication is now a message. No interpretation or debate is allowed by the sender when cloaked in power, isolated and without feedback except for that which confirms the action.
A recent example. Defendant, a lawful medical marijuana dispensary owner allegedly transferred ½ oz. of medical marijuana to an undercover police agent. There were no local police officers involved in the matter sworn in at the jurisdiction in which the defendant was operating. His business is in the suburbs and the instigators of the sting were from Denver. There weren’t local law enforcement personnel there. The only jurisdictional contact was the arresting officer. What has changed? The old statute provides that this is a felony. The Constitutional amendment provided an exception for medical marijuana, causing an interpretive rift between cops and citizens. Prosecutors claim that a Constitutional amendment only provides a defense against the statutory charge. In their view, legislation trumps citizen initiative. Convenient interpretation. The Amendment sponsors intended to vest a Constitutional right, not a defense. That is why it was drafted as an amendment to a Constitution presented to Congress with a petition for Statehood. However, the prosecutor, police, ex-prosecutor-judge cabal has the power to interpret. Where did this power come from? It comes from fear, propaganda, and ignorance. As a result, the citizens must lose.
The citizenry then created Amendment 64 to the Colorado Constitution. This amendment essentially legalizes small amounts of marijuana. Having ½ oz. is no longer illegal. Additionally, there is a specific law governing the conduct of marijuana dispensaries, which the Denver police and Jefferson County prosecutors have, in their arrogance and sense of superiority, have chosen to ignore.
In dealing with this abuse of power, I reflect on the changes that have occurred during my stint as a lawyer to understand what has happened. First, there used to be some form of dialogue between counsel. This was based upon mutual respect. No longer. It is guerilla war based upon cultural values. Justice is for textbooks, the Court system is for the group in power to send messages to the ruled or powerless. It recruits the like-minded who get off in their ability to intimidate the dissident. Both attorneys were presumed to be considering the benefit of parties and of society. The prosecutor theoretically represented “The People,” when actually, the deputy prosecutor represents the political constituency of the boss and the bosses’ political ambitions. Secondly, there is no compromise. The prosecutors take the attitude that it is their way or the highway. Defendants and their attorneys are not worthy of any respect, especially the attorney, or they wouldn’t be associating with the riff-raff. The real decision-maker then is generally the arresting officer.
These persons take it as an affront if their conduct is not always rewarded by approval and take umbrage if any criticism is leveled. That is why police can tase citizens at will, shoot them , shoot their pets, or go hunting for trophy elk in a city such as they did in Boulder, Co recently without any fear of punishment or corrective action. In other words, the police believe their own propaganda about the dangers of writing parking tickets, pushing people around, etc. The rules existed for centuries to limit the power of rulers, not to just punish and destroy. Defense attorneys were once deemed to be necessary to the democratic process. Now they are viewed as an impediment to the protection of the people. The deck is stacked against a defendant and the rules changed to force an accused to plead guilty to something making it unnecessary for prosecutors to consider any consequences of their policy. The guilty plea sends the message, whatever that might be. It also vindicates the behavior of state agents. In the process, its casts the totalitarian as a champion of the people, meeting out vengeance disguised as “justice.”
In the present case of the dispensary owner, it is particularly aggrieveous since its history and its continuation clearly demonstrates that police believe they can ignore their supervisors, the courts, and the public. Denver voters previously expressed their desire that the Denver police make marijuana enforcement the lowest law enforcement priority. The arrests almost doubled the next year. So much for the will of the people. The voters of Colorado amended their constitution to provide for the compassionate medical use of marijuana. This led to a tangle of rules, regulations and political fights causing the investment of several hundreds of thousands of dollars by dispensary owners to operate within the law. That cut out the crusaders and believers and left primarily entrepreneurs looking for profits rather than those seeking for social change.
Again, the police establishment was petulant. They self-righteously believed they knew best and, they also didn’t want to give up revenue needed for drones, Tasers, armored personnel carriers and informers to society’s need to fund collapsing bridges, schools, health programs, exploding sewer lines, and leaky gas mains. After all, protecting us from the boogie man is much more important than preventing harm from the neglect of classical governmental operations. Who cares if a bridge collapses, a student can’t afford college, the poor have no food or health care? They don’t matter. The police retaliated and funded a propaganda drive creating new fears and demanding the right to protect us from hippy drivers who might have smoked a joint. This danger didn’t exist over the last 40 years of hippies and other stoners driving cars. Now it becomes a problem To bolster fear and make it almost impossible to contest, and to legitimizing assaulting the citizenry with needles, the police state invented the green tongue. The self-righteous self- certify experts with voodoo procedures that can’t be duplicated take the position that since they are the good guys with badges, they cannot tell a lie, even if several millions are at stake The fabrications are for our own good and is therefore justified.. There doesn’t seem to be any appreciation of the fact that the medical exemption to the marijuana laws was to give the control freaks a way out to save face. It is not about compassionate medical use, it is because the public is sick and tired of the drug war, particularly marijuana when the world seems to be going to hell in a hand basket.
So, because of the excesses of the bullies, and the deliberate failure to understand or perceive, the citizens of Colorado again amended their constitution to make any possession of marijuana legal in a small amount. Didn’t matter. When the dispensary offense occurred, even though not a crime now, it was at that time, and therefore the defendant should have to pay. And pay. And pay.
Three appearances have occurred with the prosecutor demanding a guilty plea to a felony count from a youth who has spent his inheritance and borrowed to start his new age business. At the first court appearance, a parent was there in another case, accused of a felony because some teenagers got into her stash smoked some of it. No quarter was given in that case either. If you have children, then you are responsible, no matter what. I believe that is why some species eat their young. If they have friends that are around your deadly weed, then you are even more responsible for conduct of others. It may not seem like such a big deal and it will probably wreck a family, but that is the price we have to pay in order to send these messages to the public.
Like German judges 75 years ago, who signed deportation orders for “sub-humans,” the judge sits there following the script written by the District Attorney’s association and keeps cases moving, not with the end of achieving a fair result, but with a guilty plea as a goal. Since the Court system says that an arrest warrant issued by a judge establishes probable cause that an offense has occurred and the defendant committed the offense, a motion to dismiss can’t be heard. The determination is up to the jury who will be instructed that they cannot judge the law, but can only determine the facts, which revolve around whether the defendant sold a small amount of weed to an undercover cop and he committed a felonious act by not requesting the purchaser to show a marijuana registration card.
After three appearances, the prosecutor is intransigent and too busy to address the interpretation of the law or its application. After seven years of education, she is unable to make a policy decision in any context. She can only follow orders. She informed me that others have to make that determination, but she viewed the case as clear-cut and a waste of time to contest. She doesn’t care if she loses the case as long as the message is sent.
The only next move was to set the case for trial, which, according to the prosecution made rules means that there will be no offers of anything other than the defendant pleading guilty. The only date available for the defense counsel was four days until the expiration of the defendant’s right to a speedy trial and the prosecutor objected because that would not allow her enough time to get ready. I can remember when judges would chastise prosecutors for such conduct because their offices typically have a myriad of lawyers to prosecute and a particular prosecutor should not have a personal stake in the prosecution. Instead, the trial judges make each side eliminate the most convenient date and the judge then set the case for a time when he was informed that the defense counsel would be out of the country.
So, what is the point of this diatribe, you may ask. The main point is that a criminal defendant has no power to levy taxes, confiscate property to pay for cases or any other legitimate means of raising funds for a defense. The shift of power in the Court system makes a mockery of the term “fair trial” or “justice.” I mean that whoever has the largest budget wins. It means that there need not be any consideration of consequences of oppression because the State actors are “just following the law.” Plus, with the old idea of Devine Right of Kings applied to parliamentary or republican forms of government, the State, then, has God on its side. Therefore, the other side must be the devil, in which case the conscience of the totalitarian advocates can be clear. They know what is best. The system gives them that knowledge by bestowing the title of “prosecutor.” Since we, as defense attorneys, are the devil, we are evil and without conscience. How can we defend these criminals? How can we defend the Constitution?
This situation will continue until enough citizens get concerned to demand change. That can only happen with involvement, not bitching. Citizens should contact the press, demand accountability from the prosecutors, demand to have procedures analyzed and discussed when a prosecutor clears a policeman of murder because he followed proper procedures. We can demand our accusatorial system be reinstituted instead of the inquisitor form it has been replaced by. We can demand that our officials be aware that not all people belong to country clubs. We can demand that the officials follow the will of the people by the amendments to the Constitution. We can demand integrity from people in power, not greedy ambition. We can demand that we stop the drug war expenditures to repair our roads, bridges, schools, health, education, and welfare systems and represent the people, not the police. We should tell all elected and appointed officials to reset priorities and to get real.