Reefer Madness

Many of you, probably most of you, are aware of the protests and sporadic violence here in Charlotte surrounding the killing of Keith Lamont Scott. The issues raised by that incident and what has resulted from it are far, far too complex to deal with in one blog post. But, did you know that, according to police accounts, what first drew their attention to Mr. Scott was that he was smoking a marijuana blunt. Those officers were there to serve a warrant on another man. But Scott's rolling and smoking a blunt was enough to draw these officers' attention.

My last blog post was on the murder trial I just lost. That incident revolved around the sale of one ounce of marijuana. Four people were touched by that incident. One is dead, one is in prison for the rest of his life, one is in prison for the next 40 years, and one has four bullets in his body that will be there for the rest of his life. Because of one ounce of marijuana.

Marijuana has proven medical benefits for pain management, treatment of PTSD, nausea, glaucoma, and perhaps other conditions. But it is the dreaded "killer weed"; it is the feared "gateway drug". It ravages youth and turns them into drug fiends. So, for decades, the U.S. has engaged in prohibition. And, as with all prohibition, created a huge, profitable, and incredibly dangerous black market. That kills thousands. Oh no, not through use of the drug. There is not a single, documented case of anyone every dying from marijuana overdose (compare that to alcohol). Yet, once again, for all the talk about de-escalating the "war on drugs", the DEA refused to reschedule marijuana. It is still a Schedule I substance under the Federal Controlled Substances Act. Schedule I is like the supermax prison of controlled substances. It is supposed to be for drugs with a "high potential for abuse" with no "current accepted medical use"; drugs so dangerous even your doctor won't be able to help you if you come in contact with it. Which guarantees that, at least at the Federal level, complete prohibition will remain the order of the day. Which guarantees more violence. Which guarantees more dead bodies and bodies in prison forever. But not because of what the drug does, but because of how we treat it.

Colorado legalized the use of recreational marijuana for adults. The doomsayers predicted the youth of Colorado would fall helplessly, en masse, to the evil weed. Statistics show otherwise and, in fact, teen use of marijuana in Colorado is slightly below the national average. Those who argue that marijuana is a gateway drug point to studies that show a correlation between marijuana use and other drug use. But those correlations exist with alcohol and tobacco as well. And the vast majority of marijuana users do not move on to other drugs.

Drug abuse, in all its forms, takes a huge toll on some people. Of that, there can be no doubt. But does that mean that treating use of the drug as criminal activity helps? Well, Portugal decided to see what would happen if you answered that question "no". And not just with marijuana but with ALL drugs. All drugs, in low-level quantities, were decriminalized in 2001. So there is a 15 year chunk of data to look at. I have a link to the study below, but the short answer is that drug use in Portugal has dropped significantly, such that it is one of the countries with the lowest prevalence of use of most formerly illegal substances. There is a catch, however. Portugal, at the same time, invested in serious treatment alternatives for those who have issues with drugs and alcohol.

So, just in Charlotte, just in my little world, the prohibition on marijuana demonstrably leads to death and destruction. The data that lifting that prohibition would help remedy some of that death and destruction seems promising. But we refuse to open our eyes and see.

If you are interested in reading further, these were sources for some of what you just read:
http://www.leafscience.com/2014/07/22/7-proven-medical-benefits-thc/
https://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-gateway-drug
http://www.scientificamerican.com/article/colorado-s-teen-marijuana-usage-dips-after-legalization/
http://reason.com/blog/2016/08/11/dea-rejects-marijuana-rescheduling-but-e
https://www.drugpolicy.org/sites/default/files/DPA_Fact_Sheet_Portugal_Decriminalization_Feb2015.pdf

On the job...and on losing.

I've been asked in the past why I choose to do this for a living. For someone who talks as much as I do, I find it curiously hard to articulate exactly what it is. I can only somewhat describe it by using the words of others. Most often, I use a quote from the high-wire artist Karl "The Great" Wallenda: "Life is on the wire. The rest is just waiting". There is also a passage in a poem by Robert Frost that resonates inside me as well:

Only where love and need are one
And the work is play for mortal stakes
Is the deed ever truly done
For Heaven and the future's sakes

It's days like today where you really get to find out if you're being honest with yourself. I lost today. After almost 5 hours of deliberation, a jury decided the State had proved its case beyond a reasonable doubt. I lost a case I thought I had won. I lost a case that could have been won. And because I lost this case, a young man will spend the rest of his life in prison.

Why did I lose? I'm not really sure at this point. Many courtroom observers, including several with no need or inclination to curry favor with me said I tried an excellent case, that I "did all I could". But that can't be true. Because I lost. And if I'm going to keep doing this, I have to do better. I cannot lose cases that could have been won. I cannot accept that. Not when lives and futures are on the line.

There is no time to wallow. There may be time for a few drinks, but that's it. I know I am very good at this, but I'm still not good enough. "The game is play for mortal stakes". Those are still the stakes I have to play for--I cannot play a smaller game. But I cannot accept a loss. Cannot.

Oh, NOW Chuck Todd's Outraged.

Once again, there is all sorts of sound and fury concerning Hillary Rodham Clinton, e-mails, and the FBI. This piece is not going to be a direct discussion in any detail about the results of such investigation or the FBI's release of information (suffice it say, I read it all, and it appears to be yet another tempest in a teapot). Rather, I want to focus on the reaction of Chuck Todd, Ron Fournier, and, I'm sure, lots of other pundits and journos to a specific aspect of FBI procedure. It certainly has them in a dither. 

It seems that during the course of the investigation, the FBI interviewed Secretary Clinton. Messrs. Todd and Fournier, appearing on Meet the Press Daily, were outraged that there was no audio or video recording of that interview. Todd had this to say: "It bothers me as an American citizen. It's insane. We're relying on notes on this. The Trump campaign wants to show [Clinton] lied to the FBI. Maybe she did, maybe she didn't . We have no proof. And never will'. Really? No proof? Isn't that interesting. Let's unpack this shall we?

The FBI during the course of its work does lots of interviews. None of them are recorded. None. By any method--audio, video, stenographer, nada. The FBI agent takes notes, then prepares a report, commonly called a "302" (the number of the form). And that's it. The actual notes are usually destroyed shortly thereafter. So, let's imagine a situation where your client (or family member) is interviewed by the FBI. And then let's imagine that the FBI agent's 302 says your client confessed to a crime. But, your client insists that is not the case (Side note: what law-enforcement characterizes as a "confession" can be pretty damn creative). How do you combat that? Well, gosh, all you have to do is persuade a jury that your client is telling the truth and the FBI agent is lying. Sure. Easy as pie. Juries believe those charged with a crime over FBI agents all the time. You see where we're going here, right?

This has been going on since forever. Ask any criminal defense lawyer who has ever set foot in Federal court. There are thousands of people doing serious time based entirely on the testimony of FBI agents, with no recordings to verify. But, NOW, oh now, the Chuck Todds and Ron Fourniers of the world are outraged, outraged I tell you. Why, that's not proof, they bellow. They say they can't make up their mind whether Clinton lied to the FBI based just on the notes and the 302s (it seems the notes were preserved in this case, which, again, if more than you usually get). But I've never heard or read anything by either of them or the news organizations they work for expressing any outrage whatsoever when the same level of "proof" sends predominantly poor people of color to prison, sometimes for the rest of their lives. 

Jeff Sessions and the Law & Order Flim-Flam

So, for better or worse, I'm back after a long absence. And what I want to talk about is "Law & Order". No, not the lousy TV show (don't hate, but it's terrible). But rather the favored topic of the GOP nominee, Donald Trump, and his main Senate surrogate, Jeff Sessions.

Now, let's be clear about one thing. "Law and Order" is a time-honored mantra of (usually conservative) politicians to scare nice white folks. Period. But the racial aspect of it is secondary to what I want to talk about. On August 3, 2016, President Obama commuted the sentences of 214 Federal inmates. Most of them were drug offenders, a small number had gun offenses. Like clockwork, Sen. Sessions sent up the "Law and Order" alarm. According to Sessions, the President's action was "reckless". Now, bear in mind that there are 193,299 Federal inmates. So 214 is .11% of the Federal population. Note the decimal point. Not 11%, but .11%. We're not exactly talking about throwing open the prison doors here. "Reckless" is an absurd description.

But Sen. Sessions was far from finished. He went on to state that those who were released were not "low-level, non-violent offenders, which simply do not exist in the Federal system". Do not exist. None. None at all. The guy who I represented who never met any of the top dealers in an oxy ring and in controlled buys over three years only had user-level quantities on two occasions must be a figment of my imagination, because Sen. Sessions says he "simply do{es} not exist in the Federal system". Ask any lawyer who has been involved in a drug conspiracy prosecution in Federal court about Sen. Sessions' statement. You'll have to wait for them to catch their breath after they're done laughing. The Federal prisons are FULL of low-level, non-violent offenders. Hell, it's what the Feds specialize in.

And the hits just kept on coming. Sen. Sessions stated that the commutations were poorly-timed because "violent crime is rising across the country since 2014". Understand that violent crime in this country has plummeted since 1991. Violent crime rates dropped 51% from 1991 to 2013. 2013 and 2014 are the lowest crime numbers this country has seen since before 1970. Did crime numbers creep up slightly in 2015? In some cities, yes. In others, no. But you are talking about very small increases from historic lows. In the first quarter of 2016, the murder rate in NYC is the lowest it's been since they have been tracking the numbers. So the hellscape that Sen. Sessions was clearly trying to imply is far, far from the truth. But what's the truth when there's fear to be stoked?

Not content with those misleading statistics, the good Senator from Alabama trotted out some more. He claimed that there is a 66.2% recidivism rate for Federal inmates. I searched for documentation of this claim and was unable to find any. What I did find was the March, 2016 report "Recidivism Among Federal Offenders: A Comprehensive Overview", published by the U.S. Sentencing Commission. That report gives you different numbers, depending on your definition of "recidivism". If you mean that the person is charged with another crime, that rate is 49.3%. But if you mean if that person is actually convicted of another crime, that rate is 31.7%. The actual conviction rate is the one you should be looking at, and even that is misleading, but the reasons for that are the subject of my next blog post, so you'll just have to tune back in. Suffice it to say that Sen. Sessions is greatly exaggerating the actual recidivism rate.

All of this completely ignores that most crime and punishment are dealt with in state courts, and that the President and the Congress actually can have little effect on any of that. But that has never stopped national politicians from demagoguing the issue. It is unfortunately enjoying a revival in this campaign year thanks to The Donald, ably assisted by Jefferson Beauregard Sessions, III.

If you are interested in more information about any of the quotes or statistics in this piece, the following articles and/or studies were used:
http://www.foxnews.com/politics/2016/08/03/obama-commutes-sentences-for-214-federal-prisoners.html
http://dailycaller.com/2016/08/05/sessions-on-obama-commuting-felons-sentences-president-playing-a-dangerous-game/
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf
https://www.bop.gov/about/statistics/population_statistics.jsp
http://www.brennancenter.org/blog/americas-faulty-perception-crime-rates

Movies, Military, and "Patriotism"

The movie "American Sniper" had a huge opening week at the box-office. That seems to have alternately made some people very happy and some people very unhappy. Not because of Clint Eastwood's directorial skill, or Bradley Cooper's acting skill (or the lack of either) but because of what they think the movie says about America and all the baggage that goes along with the notion of "patriotism".  War movies, to some extent, have always carried this baggage, especially since Vietnam. As usual, I'm here to try and piss everyone off, whether you loved or hated the film.

May I suggest that the following list of propositions can all be held simultaneously, and consistently:

1. Clint Eastwood is an excellent director and Bradley Cooper is an excellent actor. As such, I am under the assumption that "American Sniper" is an excellent, well-made movie.
2. Movies very rarely are completely historically accurate. That is why they are "movies" and not "documentaries".
3. It is not necessary that one agree with a movie's point of view to recognize its artistic merit (i.e "Birth of a Nation", "Triumph of the Will", etc.)
4. The American military is, generally speaking, made up of very good people who perform their duties with professionalism and honor.
5. As with any profession, there are individuals in the American military who do not rise to that level of professionalism and honor, likely for a myriad of reasons.
6. Chris Kyle, the author of "American Sniper" was, by all accounts, an excellent marksman, exhibited personal bravery in the Iraq War, and likely saved the lives of numerous of his fellow soldiers.
7. Outside of his military life, Kyle was a habitual liar who concocted stories of supposed exploits that served to either help him sell books, propped up his self-made image of a bad-ass, or, more likely, some combination of same. Additionally, it appears that he and his widow actually donated very little of the proceeds of his book to charity, despite claims to the contrary. This is fair game, as he made himself a public figure.
8. The Iraq War was a war of choice for America, premised upon, at best, lazy or sloppy analysis of questionable intel.
9. As such, the Iraq War did not (does not) protect America's "freedoms" in any tangible way.
10. As such, there is little basis to claim that Kyle, or any military personnel involved in the Iraq War, was "protecting America's freedom".
11. Note, the preceding statement is not a personal criticism of Kyle or any military personnel involved in the Iraq War (at least any below the rank of General), nor does it detract from whatever bravery they exhibited in such conflict.
12. Criticism of "American Sniper", Chris Kyle, the Iraq War, the use of or tactics of the American military in any conflict, does not demonstrate a lack of patriotism, nor is it any commentary upon or degradation of, the particular service of any member of the American military, past, present, or future.

So, if you've read the book and enjoyed it, good for you. Just know a lot of it is fiction. If you saw the movie and enjoyed it, good for you. Just know a lot of it, too, is fiction. If you hate everything about the movie, good for you. Just know that most of the American military do their best under trying circumstances and don't get a vote in what war they fight, so don't paint with too broad a brush. Oh, and Chris Kyle, like most people, was neither all saint nor all sinner. Like most folks, he was a maddening mix of both.

Zen and Hardwood Floors

I have been regaling my friends on Facebook for the last few days with pictures and updates on a project my wife and I undertook to put a hardwood floor down in our den. As of about midnight last night, the construction was complete (a small piece of quarter round and a threshold cap have to be tacked down, but why quibble). As I was falling asleep last night, I kept coming back to something I had said to my wife earlier in the evening: "There's nothing like finish carpentry to keep you humble". I had said that after screwing up a miter cut on a piece of baseboard and having to re-do the entire piece. But I could have said it about construction as a whole. And the project reinforced and reminded me of some of the things that it is easy to forget in your day-to-day life. At least I forget them all the time.

Construction mandates precision. Or, should I say, good construction mandates precision. If you are off on your measurement, your cut, or any step along the way, your end product looks like hell. Or doesn't work at all. I remember one of my first ironworking jobs as a kid. We'd put up the girders and I-beams for a floor, and bolted them into place. Then, we strung heavy cables between the spans and used turnbuckles to crank the huge pieces of metal into plum. It ain't easy and takes a lot of muscle. I remember us being about a half -inch off on one and saying that that seemed close enough. The journeyman I was working with said (I'll excise the incredible profanity every sentence by an ironworker contains) "@#$(# kid, if every floor is half a #*@&$ing inch off, by the time we get to the top we'll be two @#*ing feet off).

So it was on this project. Every time my attention would wander, there would be a mistake. Sometimes that mistake would not reveal itself until it messed something up further along. Then you have to go back, find the mistake, and fix it. You have to stay in the moment and sweat the details. Cursing doesn't help, whining doesn't help, getting angry at your partner doesn't help. Trust me, I tried all of those. You have to pull it back, center, and focus on the task at hand and nothing else. Zen. There is a classic Zen aphorism, "before Enlightenment, chop wood and carry water; after Enlightenment, chop wood and carry water". In other words, the path (or the Way as some Zen philosophers term it) lies in paying attention to what is in front of you, and being fully in it. Doing it as well as you can, no matter its simplicity. If you are a fan of the old TV show M*A*S*H, in one episode someone asked the arrogant but brilliant surgeon, Dr. Charles Emerson Winchester, why he was such a great surgeon. His reply was "I do one thing at a time, I do it very, very well, and then I move on." In "The Book of Five Rings", a classic of martial arts literature, Miyamoto Musashi lays out nine precepts that the warrior should follow. One of those is: "Pay attention, even to the simple things."

Every job is like that, or can be. In my law practice, when I focus on the details, the big picture is always clearer. The police reports and witness statements have to be read again and again, because just because a cop says someone "confessed" does not make it so when you read it or listen to it. The pictures have to be looked at carefully and completely. I saw evidence of rigor in a picture once that I thought I had looked at three times before, and it changed the whole defense. And, at the most basic, you have to read the statute and see what it actually says, not what you "know" it says because you've been doing this so long. Focus, stay in the moment, pay attention to each step along the way. The end result will take care of itself. Good things to remember. And I got a pretty nice new den floor out of it, too.

Kaci Hickox--American

I have watched with fascination and, more and more frequently, outrage at the way Kaci Hickox, the nurse who had ventured to Sierra Leone to help treat Ebola patients and has now returned to the U.S., has been treated by the governments of New Jersey and Maine and by what appears to be a majority of the American public. At the risk of sounding like the stereotypical crotchety old guy (which I guess I am at this point of my life), what the hell has happened to America and Americans? When did we let fear shrivel us to this point? Kaci Hickox has demonstrated, and continues to demonstrate, the traits that I grew up believing embodied the best of America, and is being pilloried for it.

What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.

After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.

Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to  give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.