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The Marijuana Case Against Michael Phelps

  • by Allen St. Pierre, NORML Executive Director February 10, 2009

    Why it is more hype than substance…

    By Norm Kent, Esq., Member, NORML Board of Directors


    Richland County Sheriff Leon Lott and Company: ‘Michael Phelps, make our day!’

    On this blog, I do not give legal advice. I express legal opinions. The legal opinion everyone is asking me about is can Michael Phelps actually be charged? After all, there is no proof there was anything in the pipe at all. There is no controlled substance to present to a court. There is not even a pipe that could lead to a paraphernalia charge. So how can they possibly prosecute him?

    In my law office I have a steel Florida Marlin, stuffed by an ichthyologist, which I caught off the shores of Key West, in the waters of the Atlantic Ocean.

    Under the fish, there is a plaque which reads, “Behold the bright, blue Marlin; this creature would not be here today had he not opened his big mouth yesterday.

    Michael Phelps should have come by and read it. His publicized admission that he toked from a bong at a frat party in a South Carolina dorm has stirred a whirlwind of controversy and put him in harm’s way.

    The real bad news came from the sheriff in the jurisdiction where Michael allegedly toked up, with a pronouncement that he was going to investigate the case to see if he could prosecute young Mr. Phelps.

    The sheriff’s public information teased the media: “The Richland County Sheriff’s Department is making an effort to determine if Mr. Phelps broke the law. If he did, he will be charged in the same manner as anyone else…”

    Sheriff Leon Lott then commented to a local newspaper about the quality of his case. He stated that, “this one might be a lot easier since we have photographs of someone using drugs and a partial confession. It’s a relatively easy case once we can determine where the crime occurred.” Not so, Sheriff Lott. You are leaving out a lot.

    First and foremost, look at Michael’s exact words, never acknowledging he smoked pot. Instead, there was a carefully worded admission that he engaged in regrettable behavior, it might even have been written by a publicist—more worried about that Speedo endorsement than a criminal prosecution. That does not a confession make. Score lap one for Phelps.

    Second, what if some classmate who was at the party decides to turn the bong over to the authorities, instead of selling it on EBay? If they find Michael Phelps’ fingerprints on it, along with residue of cannabis, he can arguably be charged with possession of drug paraphernalia, since the pipe is supposedly packed with pot. But how would you know months later that the pot was not added after the fact? How would you prove it was the same bong? The Phelps defense would be that there is no continuous chain of custody that can establish there was contraband in the pipe at the time he held it in his hand. There is no way to show what was in the pipe when he held it. Phelps would win the second leg.

    Third, the pictures alone are insufficient as a matter of law to sustain a conviction for possession of drug paraphernalia. Someone would have to come forth and authenticate it as an actual pipe. Someone would have to come forth and attest to the fact that they took the photo. Without real parties to affirm and swear to the authenticity of the alleged contraband, the evidence is entirely circumstantial and legally inadmissible. Phelps wins again.

    Fourth, since the law prosecutes possession, and there is no way to prove that there was ever pot in the pipe when Michael exercised dominion and control over it, the charge would be subject to a Motion to Dismiss for failure to establish evidentiary proof of the contraband. Proof of possession typically requires an assertion by a drug testing laboratory, which is an arm of the sheriff’s office, to swear that the substance with which you are charged is actually illegal. There is no pot to test. Phelps wins a fourth round.

    Venue, or location is important too. In order for any prosecution to be initiated by a law enforcement agency, someone will have to come forward with a sworn statement and independently establish the location of the alleged act. Typically, a second degree misdemeanor is not an extraditable offense. All Michael has to do is stay out of South Carolina. Phelps wins a fifth lap.

    However, do not lose sight over the fact that Michael’s unsolicited statement could be used in tandem with witnesses to convict him after the fact. Just as you do not need a body to establish a murder, if the sheriff brought in a witness who said he put pot in the pipe, a second person who said ‘I handed Mike the pipe with pot in it‘, a third person who said ‘I saw Mike smoke the pipe with pot in it, and I am sure it was pot based on my experience,’ and tied that up with Mike’s admissions and a picture, who someone could say was taken contemporaneously with the criminal conduct, he could arguably go down. But even then there is a problem for the prosecution.

    Under the legal doctrine of Corpus Delicti, a defendant’s confession or admission of guilt cannot be introduced until after the state has presented evidence showing that a crime has in fact occurred. So Phelp’s admission cannot come into play or even be used as evidence until the commission of an actual crime is established through other, substantial competent evidence.

    This last scenario would require testimony from other witnesses who were at the bong party with Michael. These persons would have to come forward and admit to their own conduct as either equally guilty culprits or co-conspirators. It means they too would be putting their own scholarships and educational privileges at risk, and they are not sitting with millions of dollars in endorsements

    In essence, I suspect that very soon the Sheriff will publish a statement that after ‘due diligence,’ his ‘investigation’ revealed an insufficient basis upon which to proceed.

    And maybe the next time Mr. Phelps gets caught with marijuana he will stand up and courageously say: “It’s normal to smoke pot. I am an Olympic gold medal winning athlete and it has not impaired me one bit.

    If he does, I will invite Michael to join the NORML advisory board. I will even buy him his own bong.

    Norm Kent, a Fort Lauderdale criminal defense lawyer, can be reached @ www.normkent.com. He is the publisher of the Broward Law Blog.

    81 Responses to “The Marijuana Case Against Michael Phelps”

    1. got my call in for today.

    2. I belive Michael uses the medicine to relax his body and mind from all the hype from his excellent swimming record. I also believe the government should not prosecute Michael as he was doing whatever it was in the privacy of his own home; not hurting anyone, just medicating his body from the pain he’s endured from miles and miles of swimming. He brought home EIGHT medals. He can’t be that bad smoking the medicine. WE all have a need to relax and the government has taken away practically every right we want and desire. Let Michael alone. Let him strive to do what Michael wants to do; swim for the Olympic Team. God Bless him for being the strong character he is. At least he’s not out there molesting children, killing his own people. He is a good human being and he needs to be left alone.

      Stay strong, Michael

    3. dagrimwreefa says:

      are you fuckin kidding me? google or youtube smokin weed. there are plenty of kids smoking in pics/vids and whatever else.
      he is an exceptional athlete who likes to chill out with some weed. it would be the same if he were smoking a cig or drinking alcohol…wait its not the same, its safer.

    4. tanner says:

      i really hope phelps reads this

    5. Ian Berg says:

      What a wonderful article. I can not truly understand the need of this country and it’s law enforcement to harp on pot when extremely dangerous illicit drugs are thrown about rampantly in the streets.

    6. Hedgehog,, says:

      While the rules of evidence and such would apply to Mr. Phelps, who undoubtedly has the benefit of an amazing legal team. Sadly, the lives of most consumers of cannabis in SC would be ruined by this fascist “sheriff” hell-bent on destroying peoples lives.

    7. Ray says:

      And maybe the next time Mr. Phelps gets caught with marijuana he will stand up and courageously say: “It’s normal to smoke pot. I am an Olympic gold medal winning athlete and it has not impaired me one bit.”

      Well said

    8. Ed says:

      Wow, law enforcement is really out for blood on this one. It’s just overkill.

      I hope pot usage goes up a lot because of this, just so it can piss off law enforcement even more.

    9. Alex says:

      Good read!! Norml is the greatest organization out there!

    10. […] Sheriff Leon Lott then commented to a local newspaper about the quality of his case. He stated that, “this one might be a lot easier since we have photographs of someone using drugs and a partial confession. It’s a relatively easy case once we can determine where the crime occurred.” Not so, Sheriff Lott. You are leaving out a lot. (more…) […]

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