Classical Values :: Come out, come out, <i>wherever</i> you are!

September 14, 2009

Come out, come out, wherever you are!

Much as I hate playing hypothetical prosecutor for a day, regular commenter Steve Skubinna made me think about the government's legal case against Andrew Sullivan, which I previously discussed mainly in philosophical terms.

Here's Steve's comment:

The fact remains that marijuana is illegal. Have as many opinions on whether it should be or not, but unless the law is changed, you smoke pot on federal land you're committing a crime.

Unless you're the One True Conservative with a man crush on Obama. In which case we can expect David Brooks to light up an enormous doobie at the next get-together of the media's favorite "conservatives." Either that, or perhaps you could get away with it if you're also simultaneously brandishing weapons at polling places and intimidating voters.

Argue all you like about whether drugs should or should not be legal. I don't see much room to argue that the Obama Administration might have, in eight months, established itself as the most corrupt in US history. Nixon, Harding, Grant - all pikers.

Equal protection? What's that? Must have joined "states rights" in the lefty lexicon of discredited and racist phrases.

Good comment, although I don't think it comes down simply to whether marijuana is illegal. As I pointed out in reply, my experience with criminal law is that small misdemeanors (including federal misdemeanors) are usually dealt with in a summary manner, and prosecutors generally will make quick deals to avoid trial. When I worked briefly in the Public Defender's office while in law school, the idea of letting a misdemeanor go to trial was almost unthinkable, because it was considered a waste of resources. So, the way I used to get charges dropped was simply to push every aspect of the case like hell in preparation for trial, and truthfully tell the DA that I really wanted to go to trial so I could get trial experience. This annoyed the hell out of them, but it put them in an awkward position of having to either drop the case entirely, or settling on ridiculously easy terms (often the form of dismissal provided the defendant stipulated that there was probable cause for the arrest). As the defendants were ultimately the ones who decided these things, they would always settle -- whether poor little Eric the law student really wanted to go to trial or not.

The point is, the more complicated, the more messy, the more involved the case gets, the more likely they are to drop it. Especially if it is a stupid misdemeanor. I realize that this was a federal misdemeanor and not a state misdemeanor, but the mechanics are basically the same. Avoid trial and make a deal. The sweetness of the deal depends on a lot of things. Starting with the facts.

Here are the reported facts underlying the case against Andrew Sullivan:

Sullivan, who lives in Washington but owns a home in Provincetown, was stopped by a park ranger for smoking marijuana on the beach shortly before 3:45 p.m. When the ranger asked Sullivan if he had any other joints, the writer fished one out of his wallet and said, "I thought small amounts of marijuana were legal to have in Massachusetts," according to court records.

Massachusetts voters approved a referendum in November that decriminalized small amounts of marijuana, but the change does not apply to federal property.

Now, if we ignore for the moment Sullivan's status was a prominent blogger (if not a politically connected gay celebrity), right off, I see four legal issues:

1. Probable cause for the stop. What attracted the officer's attention? Was it a hunch? Or were there articulable reasons such as the characteristic smell which the officer based on his experience and training recognized as marijuana?

2. Miranda rights. Did the officer tell Sullivan he was under arrest before questioning him? Did he warn him that anything he said could be used against him? If not, then the statements and possibly the results of the search would be suppressible.

3. Search and seizure. Again, was it valid? Did Sullivan consent freely? Or did he do so under the mistaken belief that his conduct was legal? (The latter is also relevant to whether he knowingly violated the law, which is an element of any crime.)

4. Chain of custody/testing of the substance. Did they save it? Do they have it? Did it test positive for marijuana? Every element has to be proved to obtain a conviction.

From a criminal law standpoint, I see far from an open-and-shut, slam-dunk case against Sullivan. Even without considering who the suspect was, the case appears to have some possibly serious problems. I don't know much about the priorities, the court docket, etc., and I would want to see statistics on how the feds are now handling small amounts of possession, misdemeanor marijuana cases in Massachusetts, especially since the state law was changed.

Sullivan obviously has attorneys, and if they made it clear that they were going to litigate this case every inch of the way, I could see many a reasonable prosecutor being willing to decline prosecution, especially if there were weaknesses in it. (In nearby Detroit, they are barely able to prosecute most murders, and burglaries have become "low priority" crimes.)

So, while the suspect's celebrity status (and the political favoritism of which the judge complained) obviously influenced the decision, I'd still like to know more about the details of the case, as well as today's normal prosecutorial priorities.

But if I may return to the philosophical side, there's another wrinkle that hasn't received much attention. Not long before his arrest, Sullivan was complaining -- as only he can complain -- about what he called "The Marijuana Closet." As one of his very helpful hypothetical readers noted, "It's a problem":

Larison is right about decriminalized marijuana. And you are right about decriminalized marijuana. The argument "duuuude, I want to get wasted all the time" is written off by most people. The argument "I would never touch the stuff but we can save money sick people libertarianism blah blah blah" is cold.

We need credible people to stand up and say "I contribute to society, I work hard, I love my family, and I smoke pot. This is the only way I break the law. The law is wrong." And we need a lot of them. There are a lot of people that could make this argument. Unfortunately, society being what it is, a lot of people, myself included, are (excuse the metaphor) in the closet.

The link provided by the helpful reader goes to a previous discussion of an AmCon piece, which (claims Sullivan) stands for the proposition that "proponents of marijuana legalization are being counterproductive":

...the standard "I'm in favor of legalization, and I'm the farthest thing in the world from a pot smoker!" argument ends up making the argument for legalization less compelling. This is because this kind of argument unintentionally reproduces the stigma against the drug and effectively endorses one of the key claims that supporters of criminalization make.

Says Sullivan,

But anyone who does not fit the stereotype - and I have nothing but regard for stoners myself - is rendered invisible by the criminalization.

So, not only did Sullivan repeatedly condemn the marijuana closet, he did so recently, and just weeks before a golden opportunity was laid at his feet to stand up and be counted.

If we apply his own standard to the arrest, he wasn't merely busted, he was outed. Yet he has not said one word about it -- despite the fact that prominent conservatives (including those he's on record as loathing) have said he should go to jail and be deported -- not only for marijuana but also for having HIV.

That, IMHO, is a hell of a poor way to "come out."

Let me repeat that I refuse to support the criminal prosecution for drugs of anyone -- whether rich or poor, young or old, politically connected or not, whether named Rush Limbaugh or Andrew Sullivan or Joe Shmo, whether in the closet or out of the closet -- and so I cannot support the prosecution of Andrew Sullivan.

However, I don't think the man is living up to his own standards.

posted by Eric on 09.14.09 at 10:51 AM

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Comments

I feel OK simultaneously believing that Sullivan should not go to jail for smoking marijuana,

but that

the shitheels who decided to let him go because he was politically connected rather than because it was the right thing to do should.

Phelps · September 14, 2009 11:34 AM

Your discussion of forcing these cases to trial in order to encourage the prosecutor to drop them put me in mind of Tom Cruise's character in A Few Good Men. When we first meet him that's precisely what he's doing, and has built his short career in JAG on that precise tactic. His boats, in fact, is that he's won every case assigned without setting foot in a courtroom.

I don't know if that actually happens in that environment, but it makes much sense in civilian life. And military court martials are very disruptive to the command, since it has to provide from three to five officers for the board, officers who are not lawyers and who have primary duties that go to the back burner while the court martial is in process.

Suffice to say they are not popular in fleet commands - I sat on three boards during my time and they're a huge pain in the neck. Consequently they are probably much rarer than equivalent courts in the civilian world. Most relatively minor infractions are handled administratively, or through Article 15 hearings. Drug case, however, always go to a court martial unless the defendant waives it.

But given the seriousness with which the military takes drug use, I doubt that the Tom Cruise character would get as much slack as he does in the film. On the other hand, his other role as a Naval officer got much more slakc than any real world one would have, as well - I knew aviators who had their wings pulled without doing a quarter of the crap Maverick pulled.

Anyway, thanks for the insight. I would suggest, however, that any case, however minor, involving a high profile defendant assumes a political dimension. If esteemed amateur gynecologist Sullivan is high enough profile to move into the "political" category we should leave to normal people, who spend no more than fifteen minutes a day online. I realize my perceptions are skewed by my 'net usage.

Steve Skubinna · September 14, 2009 03:01 PM

Sullivan commented on his case Sep. 12:

"Here is an AP story. And a story in the Globe. Readers well know that I have never failed to address even personal matters on this blog, which is why I hope you understand that it's clear and binding legal advice that prevents me from commenting. I'm sorry about this, it's frustrating for me, but I hope readers understand."

To paraphrase:

"On the advice of my attorneys, I must remain the cowardly asshole I've always been. To be caught in such a tiny peccadillo just when my services are most needed to help shepherd in universal bondage, I mean health care, in my adopted home, well...it's most frustrating. I hope, and pray that my readers will understand since duplicity has been my trademark and yellow my favourite color (for several reasons)."

Frank · September 14, 2009 08:53 PM

Miranda rights are triggeered by a stop, when the police say you are not free to go. talking to a cop does not trigger Miranda. There is no evidence that AS was subject to a stop. He seemed to believe his actions wee legal and freely talked to the cop. He could have refused to talk or walked away. If the cop said "wait" then Miranda would apply. Now I don;t have a full report but simply talking to a cop does not trigger miranda, and as a n educational freebe for you all - never voluntarily talk to a cop. I may have violated a dozen statues in this post and the blog owner certainly violated many federal statues (the book of them is tens of thousands of pages) do never talk to a cop. If the cop wants to talk to you, ask politely if you may refuse. If the answer is no ask for a lawyer. Andrew free, and so would you be.

Doug_S · September 14, 2009 09:53 PM

As a matter of fact, I "booked" criminal procedure at a top ten law school and I can boil down my $150,000 education into a sentence or two. No horrible criminal, child murderer or monster, got his just deserves under normal criminal procedure without a confession. Maybe one or two but it is as rare as hens teeth. So, if you refuse to confess, talk or help the opposition in every way you are legally entitled, the chances of you being convicted are slim to none. Always refuse to talk. If it gets ugly, ask if you are free to go. If the answer is "no", ask for a lawyer. You will be surprised how much better you are treated when you have a lawyer - for one thing they can never contact you outside your lawyer shield ever again.

Doug_S · September 14, 2009 10:10 PM

Eric:

If the cop smelled dope, he had PC. No ifs ands ors or buts. No court will accept that a cop's nose is inadequate to establish PC.

The cop can ask any damn thing he wants. Particularly if he's not putting Sullivan under arrest, the cop has total freedom to ask questions.

If the criminal answers, that's on his head. He needn't be Mirandized to be asked a question. If he's arrested, then Miranda applied. But Miranda is only good if the answer is going to be used in court. As Sullivan surrendered a second joint, the cop has the evidence and doesn't need the testimony.

Search & seizure? The cop sees and recognizes contraband in a public venue. He seizes it with no problem at all.

Chain of custody might have traction, if it's a really dumb cop who didn't turn it in. But even here, Sullivan is up on a complaint. He already acknowledges the truth of the charge. The prosecutor would be unlikely to put the joint into evidence in the first place. He can rely on Sullivan's statement and that of the cop. His defense attorney isn't going to try to blow smoke on this.

Good law or bad law, Sullivan broke it. Breaking the law should have some consequence. As it is, Sullivan seems to have evaded even the fine.

Whether it will (or should) have bearing on his immigration status is another question. That will be handled under a far slipperier set of laws in an entirely different kind of court. He might not dodge that particular bullet.

John Burgess · September 14, 2009 10:11 PM

Of course if you are innocent of any crime . . .

Doug_S · September 14, 2009 10:16 PM

I'm attempting to spot possible issues here that might have been disputed by Sullivan's attorneys, not settling them or arguing Sullivan's side. They're moot now anyway.

But again, how do we know that at the outset, the cop saw and recognized contraband? What he saw was a cigarette, and we do not know the distance between him and Sullivan at the time, or whether he smelled marijuana before approaching Sullivan.

Breaking the law should have some consequence.

Certainly, breaking any law can have consequences. But I don't agree that people "should" face criminal punishment in the case of unjust or unconstitutional laws.

In any case, it's also relevant whether Sullivan break the law knowingly, as it raises a mens rea issue.

All that aside, there's no question that Sullivan was very stupid to talk to the officer and consent to the search.

Eric Scheie · September 15, 2009 12:10 AM

1. Sales to minors?

2. Product liability (pregnant mom)?

comments

Kent Gatewood · September 15, 2009 10:55 AM

Kent, I'm having trouble following that.

Eric Scheie · September 15, 2009 12:35 PM

I read the links about law enforcement in Detroit with some interest. Given that the Detroit PD can't solve murders and won't solve theft or burglaries; what do they do? Do they still expend resources shaking down prostitutes and drug dealers? Are they still writing traffic tickets?

Jardinero1 · September 15, 2009 02:11 PM

Eric: I guess I'm just a sheep, but if it's the law, it has to be followed, not appreciated, loved, or thought sane.

If a jury wants to nullify, that's up to them.

But if a law is stupid, then get it changed. Until it's changed, it's still a violation to break it.

John Burgess · September 15, 2009 05:31 PM

John, you have a principled position and you may be right (and I may be wrong) but I would never think of you as a sheep!

I appreciate your comment, but I cannot advocate enforcing laws against drugs, any more than I could advocate enforcing Jim Crow or sodomy laws.

Eric Scheie · September 15, 2009 08:02 PM

Eric, I would argue that if you're in a position where you're obligated to enforce laws, and you cannot in good conscience do so, then in good conscience you need to relinquish that position and work to overturn the laws.

Granted, prosecutors have to evaluate cases and determine which they will prosecute for many tactical reasons (as you noted yourself) but I think a principled opposition to a specific law or class of law obligates one to step out. In the same way that a prospective juror must be capable of considering the full range of penalties attached to a crime, so that one absolutely opposed to the death penalty, for example, must be disqualified from a capital case.

I suppose one might think it's more moral to enter the system and attempt sabotage, but to me that's a violation of public trust. Further, such positions usually involve taking an oath, and I am very uncomfortable with breaking an oath. Of course, if everyone were, that would eliminate nearly all disputes in contract law... and an entire category of lawyers out of work.

Anonymous · September 16, 2009 02:01 PM

How to hire a criminal defense lawyer:

http://www.scribd.com/doc/6123526/The-Truth-About-Hiring-a-Criminal-Defense-Lawyer

M. Simon · September 16, 2009 02:37 PM