Harden Law Offices

104 Main Street, Lancaster, NH 03584 603.788.2080
15 Main Street, Littleton, NH 03561 603.444.2084
199 Heater Road, Lebanon, NH 03766 603.448.3737
www.dwilawyernh.net
info@lenharden.com

Wednesday, December 28, 2011

Lancaster District Court - Not Guilty

Lancaster District Division heard the evidence on December 20, 2011 where Judge King took under advisement a charge of operation on open water contrary to RSA 215-C:7.  Judge King issued his decision with a clerk’s notice of December 22, 2011 finding Mr. M not guilty.  Judge King found that the State had failed to prove that the area of water on which the defendant’s snowmobile traveled was “free of ice and snow” at the time of operation. 

Saturday, December 24, 2011

Does Marijuana make you a better driver?

  I wanted to share this POPSCI article:

 Medical Marijuana Laws Shown to Reduce Traffic Fatalities

Well, that settles that

A U.S. Government Medical Crop at the University of Mississippi
Any attempt to segue into this post with a clever lead is likely to fall flat, so in the interest of skipping the cliches: a new study out of University of Colorado Denver and Montana State University shows that legalizing medical marijuana sales in various states over the past two decades has led to a nearly 10 percent drop in traffic fatalities. What the study really shows--by way of causal chain--is a five percent drop in beer sales, and that has in turn led to fewer fatalities on the road. Put that in your pipe and smoke it (couldn’t resist just one).
This is the kind of study that’s going to be attacked from all sides, by those with agendas and those who will simply point out that establishing that causal link between legalized pot and the decrease in alcohol sales (and in turn the reduced traffic deaths) is difficult with all the variables out there. But it is an interesting study for no other reason than it actually attempts to measure the effects of legalizing pot by linking it to some kind of hard data rather than some hard-to-quantify metric.
That, of course, is traffic data, of which we have plenty. Traffic data is bountiful and generally pretty good because incidents on the road--particularly those that involve injury or fatality--very rarely go unnoticed by authorities, who are required to dutifully record them in the public record. So Daniel Rees of UC Denver and D. Mark Anderson of MSU started looking at the traffic data both nationwide and more particularly in the 13 states that legalized marijuana for medical use between 1990 and 2009. They found several connections and trends that seemingly stem from the legalization laws, but most notably they found evidence that alcohol consumption by 20- to 29-year-olds decreased, and that translated into fewer deaths on the road. Previous simulator studies have shown that drinkers tend to drive more aggressively and take more risks, while marijuana users tilt toward risk-averse behaviors. Notably, they also found that in the states that legalized marijuana there was no evidence of an uptick in use among minors, which is a major concern for the medical marijuana opposition.
To be fair, establishing these kinds of links is still difficult as variable abound and the data is sometimes difficult to trust. Common sense (experience?) tells us that kids smoking pot generally don’t go around telling adults about it, including those conducting academic research. So establishing whether or not more or fewer kids are getting high is more or less an exercise in guesswork. And Rees and Anderson point out that while alcohol is often consumed in public places marijuana is consumed privately, often in the home. So making marijuana use a publicly acceptable activity for all people--not just those with a medical necessity--might diminish the reduction in traffic fatalities as more stoney drivers get behind the wheel.
But things being what they are, medical marijuana laws appear to be trending toward safer roadways, and that’s all this study purports to demonstrate. Place whatever value on that you will. PopSci would like to point out that this post does not constitute an opinion either for or against the legalization of medical marijuana, and Rees’s and Anderson’s findings are just, like, their opinions, man.

Lancaster District Court

Case Conclusion Date: December 20, 2011, Lancaster District Court.
Practice Area: DUI / DWI
Outcome: Not guilty by judge
Description: DWI with a blood test of .13. No FSTs. Client arrested due to multiple lay witnesses claiming impaired driving including four officers. Each witness is cross examined to expose contradictions with the others.  Blood test suppressed  due to failure to establish a chain of custody.  Issues involving the blood test were addressed as well.  The judge found no proof of impairment and entered a not guilty finding.

Saturday, December 17, 2011

Peterson Gets a New Trial

This case is a highly political and publicized one where there were numerous issues involving the investigation. 
I have met Attorney Rudolf personally and know how hard he worked on this trial and has continued to work.  He came to NH and was a dynamic speaker at a seminar hosted by the NH Association of Criminal Defense lawyer last year. 
I congratulate him on his persistence and dedication to see that justice is done.  The hard work, time and effort expended by Attorney Rudolf and his staff is a testament to his level of professionalism and commitment.
It is rewarding to know that the work we do as criminal defense attorneys can ultimately result in justice even after a verdict.  Thank you for you example of how to be a trial lawyer and congratulations again.

http://www.charlotteobserver.com/2011/12/15/2850918/peterson-gets-a-new-trial.html 

Friday, December 16, 2011

Coos County Superior Court, December 15, 2011

State v. Vincent F., Coos County Superior Court
Final pretrial was set for December 15, 2011 with jury selection set for January 5, 2012 on a second degree assault.  We had notified the State of a defense of others and were prepared to go to trial.  After reviewing the evidence the State nolle prossed or dropped the charges against Mr. F. on December 13, 2011.  This means that Mr. F. did not have to go to trial and prove he acted in defense of another and that he has no criminal conviction as a result.

Conway District Court , December 13, 2011

State v. Timothy C., 3rd Circuit- District Division Conway

Trial was scheduled for December 13, 2011 at 1 PM.  Mr. C. was charged with possession a controlled drug.  The case was called and the State sought a continuance which the Court denied.  The case was dismissed for lack of prosecution as the State had failed to have witnesses available for court.  Mr. C is a graduate student who will be finishing his degree next spring.  A criminal conviction for possessing cannabis would have been devastating for his job search and future.  We were prepared for trial and had a very solid defense.  Thankfully the State failed to bring a material witness and the matter was dismissed summarily.  Mr. C. is now able to finish his schooling and proceed into the workforce without a criminal conviction.

Thursday, December 15, 2011

NY Times: Admissible Evidence or a Backdoor Ploy? Justices Ask

The defense bar has been pleasantly surprised by the strength of Justice Scalia’s opinions protecting the 6th Amendment and the right to confrontation.  Justice Scalia remains the strongest voice in support of the 6th Amendment on the high court, defending the right to confrontation in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), which held that it was a violation of the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test. This overturned years of the Supreme Court permitting expert reports without the analyst present (Roberts)Melendez Diaz also clearly held that the analyst’s reports were unconstitutional without the testimony of the person to enable cross examination.  Justice Scalia delivered the opinion of the Court in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Justice Thomas filed a concurring opinion. Justice Kennedy filed a dissenting opinion, in which Chief Justice Roberts and Breyer and Alito, JJ., joined.
 
The other case referenced in the article is Bullcoming v. New Mexico which also dealt with a Confrontation Clause case decided on June 23, 2011.  In Bullcoming, the Supreme Court considered the issue whether a defendant's 6th Amendment rights extend to a non-testifying laboratory analyst whose supervisor testifies as to test results that the analyst transcribed from a machine. In a 5-4 decision authored by Justice Ginsburg, in which Justices Scalia, Sotamayor and Kagan and Thomas in part concurred for the majority, while Justices Kennedy, Roberts, Breyer and Alito dissented.
 
It is interesting to note that the divide in the court ignores political appointments of the justices and is very stark as it relates to the 6th Amendment.  The Williams  case seems to be setting up the same 5-4 decision which will hopefully will protect a defendant’s right to make the government prove its case with live testimony capable of being cross examined.  These cases along with Crawford and Strickland  have over ruled the exceptions to the hearsay rule that were common for years under Roberts.  Hopefully the Supreme Court will continue to protect cross examination so that it may remain "the greatest legal engine ever invented for the discovery of truth." This conclusion is supported by comparing the historical purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath - thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. 5 Wigmore 1367.

Thursday, December 8, 2011

ALS Hearing results from today at NH DMV

State v. John M., ALS suspension hearing for a test over .08 was dismissed after the Lisbon police failed to introduce evidence of a breath test pursuant to RSA 265-A:5.  In short the Lisbon police arrested John M. for DWI and Aggravated DWI and alleged at the DMV that he took a breath test which revealed a result greater than .08 BRAC, however, they failed to introduce a valid test, certification of the test or the officer’s qualifications to administer a test.  Attorney Harden was able to have the case dismissed and John M. has his NH driver’s license restored to operate today.

State Admits Error In Perjury Case

This is a link to an article written by Khela McGann in the November 23rd edition of The Littleton Courier that covers one of my recent cases.

The American justice system is the best in the world. The system sometimes makes mistakes and can cause people undue hardships both physically and emotionally.  However, I truly believe that our system works, sometimes as in this case it takes time and persistence but eventually it will work. 
 
I had the honor of representing Robert Koczur and defending him in a jury trial in Grafton County Superior Court.   The jury made a finding against him, and despite my best efforts I was unable to convince the trial court to overturn that conviction.  My client had confidence in me and we continued to pursue justice.  In Mr. Koczur’s case that justice came from an appeal to the NH Supreme Court where we were able to have the conviction overturned and an acquittal was entered.  The Attorney General’s Office confessed error and acknowledged that there was insufficient evidence to proceed.  This unusual step by the State meant the end of the criminal case and that Mr. Koczur was confirmed not guilty.
 
Criminal cases are often very hard on a person’s health and welfare.   The stress and aggravation endeared can be difficult.  I pride myself on trying to explain the process to client’s and helping them through a tough period in their lives.

http://www.newhampshirelakesandmountains.com/pdf/LIT.2011.11.23.pdf

Harden Law Offices has a NEW location!

Harden Law Offices is pleased to announce the opening of the Lebanon, NH office at 85 Mechanic Street.  Attorney Harden will now be able to better serve clients in lower Grafton county. He may be reached at 448-3737.  Attorney Harden practices only DWI and Criminal Defense law.  Call today for a free initial consultation!

Wednesday, November 23, 2011


 Prison and jail overcrowding has been a hot topic in New Hampshire, particularly in the past few years.  While a large focus has been spent on Probation/Parole violators, it is important to look at the underlying conviction that led to the incarceration.  How many of those were actually for violent crimes?  There have been several studies about the composition of the NH State Prison and suggestions for ways to reduce the overall number.  Politicians have been driven to reduce the number of Probation/Parole violators as a solution.  While it is true that there are a substantial number of violators in our Prisons, how many of those individuals truly need community supervision?  Many of these violators are those who have had underlying drug or drug related convictions and the POs have brought them back after numerous positive urine screens, failed rehab attempts and new minor convictions.  Caseloads for these Parole Officers are extremely high and I think most are of the opinion that supervision is inappropriate for non-violent offenses.  The focus should be more on diversion programs and other alternatives.  It is cost-effective for the State and beneficial to the defendant.

A Country of Inmates
By ALBERT R. HUNT | BLOOMBERG NEWS
Published: November 20, 2011
NY Times
WASHINGTON — One area where the United States indisputably leads the world is incarceration.
The United States has 2.3 million people behind bars, almost one in every 100 Americans. The U.S. prison population has more than doubled over the past 15 years, and one in nine black children has a parent in jail.
Proportionally, the United States has four times as many prisoners as Israel, six times as many as Canada or China, eight times as many as Germany and 13 times as many as Japan.
With just a little more than 4 percent of the world’s population, the United States accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined. Almost all the other nations with high per capita prison rates are in the developing world.
There’s also a national election in the United States soon. This issue isn’t on the agenda. It’s almost never come up with Republican presidential candidates; one of the few exceptions was at a debate in September when the audience cheered the notion of executions in Texas.
Barack Obama, the first black president, rarely mentions this question or how it disproportionately affects minorities. More than 60 percent of the United States’ prisoners are black or Hispanic, though these groups comprise less than 30 percent of the population.
“We’ve had a race to incarcerate that has been driven by politics, racially coded, get-tough appeals,” said Michelle Alexander, a law professor at Ohio State University who wrote “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
The escalating cost of the criminal-justice system is an important factor in the fiscal challenges around the United States. Nowhere is that more evident than in California, which is struggling to obey a court order requiring it to reduce its overcrowded prisons by 40,000 inmates.
Today, there are 140,000 convicts in California’s state prisons, who cost about $50,000 each per year. The state pays more on prisons than it does on higher education.
Yet the prisons are so crowded — as many as 54 inmates have to share one toilet — that Conrad Murray, the doctor convicted in the death of the pop star Michael Jackson, may be able to avoid most prison time.
California isn’t unique. In Raleigh County, West Virginia, the county commission has worried that the cost of housing inmates at its Southern Regional Jail may imperil basic services, including education. That problem is exacerbated as the state keeps more prisoners longer at such regional facilities to alleviate its overcrowding problems.
The prison explosion hasn’t been driven by an increase in crime. In fact, the crime rate, notably for violent offenses, is dropping across the United States, a phenomenon that began about 20 years ago.
The latest F.B.I. figures show that murder, rape and robberies have fallen to an almost half-century low; to be sure, they remain higher than in other major industrialized countries.
There are many theories for this decline. The most accepted is that community police work in major metropolitan areas has improved markedly, focusing on potential high-crime areas. There are countless other hypotheses, even ranging to controversial claims that more accessible abortion has reduced a number of unwanted children who were more likely to have committed crimes.
However, one other likely explanation is that more than a few would-be criminals are locked up. Scholars like James Q. Wilson have noted that the longer prison terms that are being handed down may matter more than the conviction rates.
This comes at a clear cost. For those who do ultimately get out, being an ex-con means about a 40 percent decrease in annual earnings.
Moreover, research suggests that children from homes where a father is in jail do considerably less well in life and are more prone to becoming criminals themselves.
“People ask why so many black kids are growing up without fathers,” said Ms. Alexander. “A big part of the answer is mass incarceration.”
It seems clear that the U.S. penal system discriminates against minorities. Some of this is socioeconomic, as poorer people, disproportionately blacks and Hispanics, may commit more crimes.
Much of the inmate explosion and racial disparities, however, grow out of the way the United States treats illegal drugs. It began several decades ago with harsher penalties for crimes involving crack cocaine, which was more widely used by blacks, than powder cocaine, which was more likely to involve whites. A larger issue is how the U.S. criminal justice system differentiates in its treatment of drug sellers — who get the book thrown at them — versus drug users, who, at most, get a slap on the wrist.
A hypothetical example: A black kid is arrested for selling cocaine to the members of a fraternity at an elite university. The seller gets sent away for 25 years. The fraternity is put on probation for a semester by the university and nothing else.
In all likelihood, the convicted seller is quickly replaced, and few of the fraternity kids change their drug-use habits. The lesson: neither the supply nor the demand has changed, and the prison population grows.
Given their budgetary difficulties, about half the states are actually reducing their prison populations. Smart selective policies are cost-effective. Many criminologists and sociologists say the proclivity to commit crimes diminishes with age; the recidivism rate for convicts over 30 is relatively low, and most every analysis suggests that parole and probation are far less expensive for taxpayers than incarceration.
Nevertheless, the politics of the crime issue cuts against any rational approach. Even if recidivism rates are low, it’s the failures that attract attention. In 1988, the Democratic presidential nominee, Michael S. Dukakis, was savaged when it was revealed that one convict, Willie Horton, who was furloughed on his watch as governor of Massachusetts committed a rape while at large. Four years ago, the former governor of Arkansas, Mike Huckabee, a Republican, was hurt in his bid for his party’s nomination by reports of crimes committed by felons who were paroled during his time in office.
“One case where a parolee does something very wrong is sensationalized,” Ms. Alexander said, “and many, many others are kept behind bars for a long time.”

Thursday, November 17, 2011

Returning Your Right to Bear Arms in New Hampshire


I routinely help many NH citizens annul felony convictions thereby restoring their right to bear arms.  The process is relatively simple and includes a review by a Judge to determine if a person qualifies, then a background check by the Department of Corrections including a criminal records check and finally input from the county attorney.  NH law requires a period of 10 years with no conviction of any kind for a class A felony, 5 years for a B felony, and 7 years for any drug offense or special felony.   
NH permits annulments pursuant to RSA 651:5 for most felons after a requisite time period of being conviction free.  The NH statute excludes certain violent crimes:  (a) capital murder, first or second degree murder, manslaughter, or class A felony negligent homicide under RSA 630, (b) First degree assault under RSA 631:1, (c) Aggravated felonious sexual assault or felonious sexual assault under RSA 632-A,  (d) Kidnapping or criminal restraint under RSA 633, (e) Class A felony arson under RSA 634:1, (f) Robbery under RSA 636, (g) Incest under RSA 639:2, III or endangering the welfare of a child by solicitation under RSA 639:3, III; or (h) Any felonious child pornography offense under RSA 649-A..  The link to the full NH Statute for annulment is http://www.gencourt.state.nh.us/rsa/html/lxii/651/651-5.htm.  
Anecdotally, in contrast to the examples in the Times article the last person I sought an annulment on was convicted upon a plea of receiving stolen property in 1986 and had no subsequent convictions including any motor vehicle offenses.  He wanted the annulment so that he could go hunting with his son and grandson.  He was 22 years old when he made a poor decision and was truly embarrassed that he had been a felon.  Another person wanted to annul his record so that he could apply for a better job with his current employer that involved towing vehicles and required that he be bonded.  These stories are more typical of the types of people who seek annulments with my office.  I am confident that they and the other clients that I have helped restore their constitutional rights will be responsible gun owners and productive members of our community.
In Northern NH gun ownership and gun rights are a very important part of life.  Hunting is still very much an activity that is enjoyed across generations and provides some of the most cherished memories for many citizens.  A young person who makes a mistake should not be banned for life from an activity after having served their sentence.  

The United States currently has the highest rate of incarceration rate in the world. At year-end 2009 it was 743 adults incarcerated per 100,000 population.[2][3][4][5][6]According to the U.S. Bureau of Justice Statistics (BJS) 2,292,133 adults were incarcerated in U.S. federal and state prisons, and county jails at year-end 2009 — about 1% of adults in the U.S. resident population.[2][3][7][8] Additionally, 4,933,667 adults at year-end 2009 were on probation or on parole.[2] In total, 7,225,800 adults were under correctional supervision (probation, parole, jail, or prison) in 2009 — about 3.1% of adults in the U.S. resident population.[1][2][9] In addition, there were 86,927 juveniles in juvenile detention in 2007. Taken from http://en.wikipedia.org/wiki/Incarceration_in_the_United_States

The NY Times perspective on restoring gun rights to felons is biased and misrepresents the vast majority of cases where citizen’s constitutional right to bear arms is restored.  

Felons Finding It Easy to Regain Gun Rights

 http://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html?_r=1&ref=crimeandcriminals

Tuesday, November 15, 2011

I do believe that civilians and many law enforcement officers are changing their views about marijuana.  The recent acts by the Federal Government are a huge step back for so many individuals and entities.  We must do our research prior to the next set of elections, so that our voice can be heard.

Losing Hearts and Minds in the Drug War

Posted: 11/14/11 04:51 PM ET
In the forty years since Richard Nixon declared a "War on Drugs," Americans' perceptions of that war are finally beginning to shift.
Receding support for Prohibition is happening in large part because of virally circulated news accounts and videos of law enforcement's disturbingly harsh tactics in the drug war. My former colleagues are making clear that besides causing thousands of deaths worldwide and costing billions of taxpayer dollars, the drug war's most serious collateral damage has been to undermine the role of civilian law enforcement in our free society.
In one of the most widely viewed videos, a tiny single-family home is descended upon by a Columbia, Missouri Police Department SWAT team. After pounding on the door and announcing themselves, the cops waste no time. They smash open the door and charge into the unsuspecting family's home.
After what sounds like multiple explosions or gunshots, we hear the sound of a dog yelping sharply, as if in pain.
We then hear several more gunshots or explosions amid the general pandemonium.
The camera follows the heavily armed and armored officers inside. We watch as they order a woman and a small child, still woozy from being suddenly awakened, into their living room.
As they are forced onto the floor, a young male is brought into the room. He is handcuffed and pushed against a wall.
"What did I do? What did I DO?" he shouts, as the woman and the child cower on the floor nearby.
We then learn the source of the dog's pained cries.
"You shot my dog, you shot my DOG!" the man suddenly shouts. "Why did you do that? He was a good dog! He was probably trying to play with you!"
He, the woman and the child all break into pitiful sobs.
As of late October, just five months after it was posted, the Columbia police raid video has been viewed nearly two million times on YouTube. The clip quickly ricocheted across cyberspace, generating emotionally charged, outraged calls for the officers to be fired and prosecuted. Or subjected to the same kind of treatment that terrorized their fellow citizens.
Public indignation over the incident intensified when it was learned that the Columbia SWAT team was executing an eight-day-old search warrant, and that the only things seized were a pipe containing a small amount of marijuana residue. Since possession of small amounts of pot had long ago been essentially decriminalized in Columbia, the man was charged with simple possession of drug paraphernalia, a misdemeanor.
The reaction of Fox Business Network's Andrew Napolitano was telling. In a segment about the raid that also found its way onto YouTube, the retired New Jersey Superior Court judge says, "This was America -- not East Germany, not Nazi Germany, but middle America!"
Yet as former Cato staffer Radley Balko, who wrote about the Columbia video, has noted, what's most remarkable about the raid is that it wasn't remarkable at all. The only thing that made it unusual was that it was videotaped and made public, thanks to a Freedom of Information Act request by the Columbia Daily Tribune newspaper.
There are more than 50,000 police paramilitary raids in the United States each year -- more than 130 every day. Virtually all are for prosecution of drug warrants, the vast majority involving marijuana. Many jurisdictions use SWAT teams for execution of every search warrant for drugs.
Just like in Columbia, these drug raids are typically staged in the middle of the night by officers equipped similarly to those depicted in the video: Darth Vader-style Kevlar helmets and body armor, black uniforms, military boots, night vision goggles. The officers are armed with automatic weapons and are sometimes deployed from armored personnel carriers or rappelling from helicopters. Doors are smashed open with battering rams or are ripped from their hinges by ropes tied to vehicles. And, to further disorient those inside, officers are trained to use explosives -- "flash-bang" grenades -- upon entry. The slightest provocation, including any "furtive" moments on the part of the residents, often results in shots fired.
Since drug dealers sometimes use dogs to protect their stash, family pets are shot, kicked, or, in the recent case of a New York City raid, thrown out the window.
At least in Columbia, no human was injured or killed in the crossfire, and (unlike dozens of cases every year across the country), the SWAT team got the address right -- even if the huge stash of drugs and money they thought they'd discover was nowhere to be found.
How did local police departments in a free society ever reach this point?
Nixon's use of the word "War" was no accident. From the outset, Washington's approach to the problems of drug use and addiction has been overtly militaristic in nature.
"It's a funny war when the 'enemy' is entitled to due process of law and a fair trial," the nation's first "Drug Czar," William Bennett, told Fortune magazine. Never known for moderation, he later famously urged repeal of habeas corpus in drug cases and even went on to recommend public beheading of drug dealers.
The federal government has instituted policies that have encouraged local law enforcement agencies to increasingly blur the roles of soldiers and police.
SWAT, a specialized paramilitary force used in especially dangerous situations -- think armed robberies, barricaded suspects, hostages, the Columbine school shootings -- had been in existence before the drug war. But today, their mission is almost exclusively the execution of search warrants in drug cases.
Criminologists Peter Kraska and Louis Cubellis have documented that, as of 1997, 90 percent of American cities with populations of greater than 50,000 had at least one paramilitary or SWAT unit, twice as many as the decade before.
In the post-9/11 era, paramilitary police units have been formed in such unlikely places as Butler, Missouri (population 4,201); Mt. Orab, Ohio (2,701) and Middleburg, Pennsylvania (1,363). Even college campuses like the University of Central Florida have their own campus police SWAT units, operating independently from state and local police departments or civil authorities.
The federal government has given local SWAT units access to highly sophisticated equipment, encouraging its use in an ever-more aggressive War on Drugs.
Beginning with the Military Cooperation and Law Enforcement Act of 1981, the Pentagon gave local and state police access to surplus military equipment for purposes of drug interdiction. By 1997, local police departments around the country had stockpiled 1.2 million pieces of gear, including thousands of military-style M-16 automatic rifles, body armor, helmets, grenade launchers, night vision goggles, even armored personnel carriers and helicopters.
But the military equipment transfers to local police for drug enforcement were just the first step in Washington's intensification of the drug war.
Throughout the 1980s, Congress and the White House together eagerly chipped away at the Civil War-era Posse Comitatus Act, which for more than a century had forbidden use of the military for civilian law enforcement purposes.
Following Ronald Reagan's 1986 National Security Directive declaring drugs a threat to national security, Congress ordered the National Guard to aid state drug enforcement efforts. The effect has been to order the American military to search for marijuana plants.
By 2000, as the Cato Institute's Diane Cecilia Weber documented, Posse Comitatus had been all but repealed with respect to drug interdiction. The first President Bush went so far as to institute a program of "regional task forces" to facilitate civilian-military cooperation in areas of intelligence sharing, equipment transfers, and training of local police in advanced military assault tactics.
A police officer's job is to preserve the peace, to maintain public order on the streets of America's cities. A soldier's job is to fight wars on foreign soil. These are two profoundly different roles.
Tragically, the gradual evolution of local law enforcement into paramilitary units has, over a generation, dramatically changed the culture of police work--in ways the public increasingly and justifiably, finds objectionable.
The shock-and-awe drug enforcement tactics now employed almost a thousand times each week have needlessly injected a high risk of violence into the prosecution of what are almost always non-violent, consensual crimes.
For the innocent bystanders who get caught up in them, the paramilitary raids impose a traumatic and lasting punishment where none is justified. Even for the perpetrators, the raids constitute a reversal of the presumption of innocence (and, as evidenced so vividly by the Columbia raid, a grotesquely disproportionate response to a minor -- or non-existent -- offense).
Fortunately, we are moving closer and closer to a tipping point in the effort to restore sanity to our drug laws and enforcement priorities.
For the first time since Gallup began tracking the issue 41 years ago, fully half of Americans now support legalization of marijuana, with the issue now receiving actual majority support (55 percent) on the west coast.
The changing public attitudes toward marijuana bode well for marijuana policy reform initiatives now being circulated in California, Colorado, Massachusetts, Ohio and Washington State, and for legislation now pending in several state houses to allow medicinal use.
More and more Americans are coming to realize the staggering human toll -- in lives, dollars, and civil liberties -- of the drug war. Some of these awakening Americans are police officers--a rapidly growing minority of cops who realize the harm these tactics have done to the people they've been hired to serve, the risks to their own safety and wellbeing, and the erosion of public confidence and respect for law enforcement this policy has caused.
We owe it to ourselves, and to those whose job is to help make our neighborhoods safe, to put an end to the drug war.

Monday, November 14, 2011

An angry Court gives New Orleans prosecutors a scolding An angry Court gives New Orleans prosecutors a scolding

The state has an obligation to turn over all evidence to the defense.  This case highlights how important it is that a prosecutor not attempt to give only 'material' evidence.  As a defense lawyer it is imperative that all evidence be obtained. 



An angry Court gives New Orleans prosecutors a scolding
The National Law Journal
November 08, 2011
Description: Williams & Connolly's Kannon
            Shanmugam
Williams & Connolly's Kannon Shanmugam 

The Supreme Court took the New Orleans prosecutor's office to the woodshed on Tuesday, scolding its lawyer for what one justice said was a long history of accusations that the office has ignored the right of defendants to receive exculpatory evidence before trial.

Justice after justice, including conservative Antonin Scalia, admonished Assistant District Attorney Donna Andrieu for her office's failure, in the case before the Court, to turn over what they viewed as evidence that could have changed the course of the trial. "Surely it should have been turned over," Scalia said at one point. "Why don't you give that up?"

The setting for the Court's unusual display of anger was the oral argument in Smith v. Cain, a challenge to prosecutorial misconduct in the case of Juan Smith, convicted of murder in a 1995 rampage that left five people dead. Lawyers for Smith are asking for a new trial, citing statements that were withheld from defense lawyers impeaching the credibility of the only eyewitness to the crime.

The Court agreed in June to hear the case, even though it did not involve a new legal issue or a doctrinal split among circuits. This led to speculation – borne out Tuesday — that the justices docketed the Smith case to continue their scrutiny of the New Orleans prosecutor's office in the aftermath of last term's high court decision in Connick v. Thompson. That controversial 5-4 ruling reversed a $14 million civil rights judgment against the New Orleans prosecutor's office for similar withholding of evidence during the tenure of former prosecutor Harry Connick Sr.

Connick had also prosecuted Smith, and justices made it clear Tuesday that the win last term did not mean they were happy with Connick's legacy. The father of the famed musician, Connick served as New Orleans Parish prosecutor from 1973 to 2003.

Kannon Shanmugam of Williams & Connolly argued on behalf of Smith, forcefully laying out what he described as the prosecutor's "flagrant disregard" of his obligations under Brady v. Maryland, the 1963 ruling that requires prosecutors to supply defense lawyers with exculpatory evidence.

Shanmugam said the defense at trial was not given documents showing that the main eyewitness to the murders had told police more than once that he could not identify those responsible for the murders. The witness identified Smith in a photo lineup only after seeing Smith's picture in a New Orleans newspaper speculating about his connection to the case. "None of this material was handed over," Shanmugam told the Court.

From the moment she stood to answer Shanmugam's arguments, Andrieu was on the defensive. She made her situation worse by insisting through most of her half-hour that the evidence that her office had not turned over was not Brady material that had to be given to the defense – even though it could have been used to cast doubt on the prosecution's main witness. She said it was not material and would not have changed the outcome of the case if it had been revealed to the defense.

"How could it not be material?" asked Justice Ruth Bader Ginsburg. "Here is the only eyewitness, and we have inconsistent statements."

Justice Anthony Kennedy added, "I just can't believe that."

Chief Justice John Roberts Jr. also piled on, telling Andrieu, "If you were the defense lawyer, you would really like to have that statement where he said, 'I couldn't identify them.'"

Andrieu finally relented to the pressure, allowing that "a prudent prosecutor could have disclosed" the conflicting evidence to the defense. "I believe we were tacking a little bit too close to the wind."

But that concession did not mollify the Court. Justice Elena Kagan bluntly asked, "Did your office ever consider just confessing error in this case? You've had a bunch of time to think about it."

Taken aback, Andrieu said no, asserting she still had a plausible argument that the evidence her office withheld was not material to the case.

Then it was Justice Sonia Sotomayor's turn to scold Andrieu. "There have been serious accusations against the practices of your office, not yours in particular but prior ones," she said. "It is disconcerting to me that when I asked you the question directly, 'should this material have been turned over,' you gave an absolute no. 'It didn't need to be. It would have been prudent, but it didn't need to be.' That's really troubling."

Andrieu's next position was that she had misunderstood Sotomayor's question. "Today we turn all of this over," she said, just as the red light went on, signifying the merciful end of her argument time.

Friday, November 11, 2011

Another article on the war against Medical Marijuana.  There have been countless stories about prescription opiate abuse leading to illicit heroin use.  How many stories are there about medical marijuana use leading to more "intense" illegal drug use?  Perhaps marijuana isn't the gateway drug that Americans were led to believe it was?

I have represented criminal defendants for over 15 years.  In that time, I cannot recall a single client accused of violent behavior while under the sole influence of marijuana.  How many Court cases have there been in Coos and Grafton County about addicts committing burglaries to support their drug habit?  A large number of those cases are referred to Drug Court. You would be hard-pressed to find any of those cases involving solely marijuana addiction. 

Public Enemy No. 1

Posted: 11/10/11 10:12 AM ET
"Play faster!" he cried, wildly, over and over. "Play faster!"
The dame who was tickling the ivories complied, out of control herself. The music revved to a dangerous velocity -- oh, too fast for decent, sober, well-behaved Americans to bear -- and... well, you just knew, violence, madness, laughter were just around the corner. The year was 1936 and, oh my God, they were high on marijuana, public enemy number one.
The scene is from Reefer Madness, arguably the dumbest movie ever made -- but smugly at the emotional and ideological core of American drug policy for the last three-quarters of a century. The policy, which morphed in 1970 into an all-out "war" on drugs, has filled our prisons to bursting, created powerful criminal enterprises, launched a real war in Mexico and presided over the skyrocketing of recreational drug use in the United States. The war on drugs just may be a bigger disaster than the war on terror.
"The war on drugs, as it has been waged, has not only failed to curtail drug use; it has become a major public health liability in its own right," writes Christopher Glenn Fichtner in his comprehensive new book on our disastrous war on a plant, Cannabinomics: The Marijuana Policy Tipping Point (Well Mind Books).
Fichtner, a psychiatrist -- he served as Illinois Director of Mental Health for several years -- takes a long, hard look at the politics of irrationality and lays out a compelling diagnosis: "essentially, social or mass psychosis." You can also throw in racism. The war on drugs is simply a race war by another name, fueled by fear of Mexican and African American culture, with the weight of law brought down on African Americans with wildly disproportionate severity:
"... during a period when the number of prison sentences for drug-related convictions increased dramatically for all drug offenders," Fichtner writes, citing Illinois statistics between 1983 and 2002, "it increased for African Americans at roughly eight times the rate of increase seen for Caucasians."
But reading Cannabinomics kept leaving me with the sense that there was a deeper irrationality to our anti-marijuana crusade than even the racism. For instance, "Examples abound," he writes, "in which the application of mandatory minimum sentences has led to harsher penalties for marijuana offenses than for violent crimes ranging from battery through sexual assault and even to murder."
And the violent enforcement of zero tolerance hasn't been limited to the pursuit of recreational potheads. Those using cannabis medicinally have also been harassed, arrested and sometimes treated with such shocking violence you have to wonder whether the official paranoia about marijuana use -- that it leads to mental derangement and violent behavior -- is sheer projection.
For instance, early in the book Fichtner relates the story of Garry, a California man who used marijuana to relieve arthritic pain. Despite the fact that this was legal under state law, his house was raided by federal agents: "As he opened his front door, he was greeted by a battering ram and a physical takedown maneuver that left him with a dislocated left shoulder, right hand fractures, blunt head trauma, and a back injury that aggravated the arthritis for which he grew cannabis in his garage in the first place."
Much of Cannabinomics is devoted to the extraordinary medicinal uses of marijuana, which has been called one of the safest therapeutically active substances known to the human race. It has been used, usually with little if any side effect, to alleviate chronic pain and chemo-induced nausea and relieve the symptoms of a stunning array of illnesses and conditions, including epilepsy, multiple sclerosis, rheumatoid arthritis, cerebral palsy, diabetes, hepatitis C, AIDS, cancer, Tourette's syndrome, Alzheimer's. The list goes on.
The herb has been "part of humanity's medicine chest for almost as long as history has been recorded," according to Dr. Gregory T. Carter, writing on the NORML website.
In light of this, our war against it -- at extraordinary human and economic cost -- illuminates a crying need for us to change the way we govern and look after ourselves. Another story Fichtner tells is about an Illinois man named Seth, who had suffered from epileptic seizures most of his life. He reluctantly tried using marijuana -- one inhalation a day -- because his prescribed medications weren't helping much, and soon reduced the incidence of grand mal seizures from several per week to one or two per month.
The amazing part of this story, Fichtner notes, is that none of his doctors were willing even to discuss the therapeutic use of marijuana, though they were quick to recommend invasive procedures, including temporal lobe surgery. "... We Americans," he writes, "live in a society in which it is acceptable practice for surgeons to destroy a piece of someone's brain in order to prevent seizures but where use of marijuana for the same purpose... is a criminal offense."
To my mind, it all smacks of the military-industrial metaphor that rules the American roost. We're quick to seize on something as the enemy and organize ourselves blindly around its destruction, never stopping to notice that what we're destroying is ourselves. In the case of the war on drugs, our "enemy" is our greatest ally.
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Robert Koehler is an award-winning, Chicago-based journalist, contributor to One World, Many Peaces and nationally syndicated writer. His new book, Courage Grows Strong at the Wound (Xenos Press) is now available. Contact him at koehlercw@gmail.com or visit his website at commonwonders.com.
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