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.

Washington, DC: The NORML Foundation today launched its 2008 cash contest for the best pro-marijuana public service advertisement in favor of marijuana law reform.

Today, the 20-millionth person in America was arrested on cannabis charges!

How mad and frustrated does that make you? Want to turn that frustration into a positive direction?

College and art students, graphic designers, animators, cartoonists, flash animators, filmmakers, documentary-makers, activists, NORML chapters, senior citizens, medical marijuana patients, victims of marijuana prohibition laws, concerned citizens and cannabis consumers in general—the five decade-old movement to reform marijuana laws is calling for your time and talents, and you maybe the winner of some serious holiday cash for your stash.

Contest winners’ videos and animations will be prominently featured on NORML’s popular webpages, blogs and social networks (i.e., Facebook/MySpace, etc…, with over 500,000 supporters). Also, ‘Radical’ Russ Belville of NORML’s daily podcast, the Daily Audio Stash, will interview top winners of the contest.

The winning entry will be featured in any NORML public service announcement campaign on television in 2009.

Check out last year’s contest winners here.

Get Concerned – Get Creative – Get Graphic About 20 Million Marijuana Arrests!

While Hubbard may have had tongue firmly in cheek, the suggestion that it is PROHIBITION, not the responsible use of cannabis by NBA players—similar to the current alcohol, tobacco and prescription drug use policy that NBA players, like most every worker in the country, work under—there is an obvious mutuality and bridge to gap between the cannabis law reform community and professional sports associations, like the cannabis-laden NBA.

I assume recent cannabis arrestee and #9 pick in the 2007 NBA draft Joakim Noah would agree with Hubbard!

It would seem to make sense for the NBA’s next social endeavor to join forces with NORML – aka the National Organization for the Reform of Marijuana Laws.Can you imagine how many of the NBA’s image problems would be eliminated if marijuana were legal?

Radio interviews would be delightfully boring. The rookie transition program could have 100 percent attendance. Players trying to sneak marijuana on a plane by wrapping it in foil would not be stopped by a metal detector.

For the NBA, legalizing marijuana is the equivalent of outer space in Star Trek. It’s the final frontier. It’s a chance for Stern to boldly go where no commissioner has gone.

(For those of you not blessed with a sense of humor or the ability to spot tongue lodged in cheek, please do not take the preceding suggestion too seriously).

By George Rohrbacher, NORML Board member

An odometer roll over effect of sickening proportions is about to happen this October: American law enforcement will make its 20-millionth marijuana arrest. Regrettably however, our country will not be one step closer to any solution of this “problem” than we were when the federal government first started arresting people for cannabis seventy-one years ago today, with the first federal cannabis prohibition arrest of Samuel Caldwell.

Halfway through this epoch in American history known as cannabis prohibition, Richard M. Nixon’s own handpicked Shafer Commission studied cannabis for nearly two years and concluded: no criminal penalties for adult possession of 100 grams of marijuana.

Nixon was shocked by their findings and tried to bury the Shafer Commission’s report. Nixon instead proceeded with the “don’t try to confuse me with the facts, I’ve got my mind made up” approach to governance, and the full-scale war on cannabis commenced.

After four decades, this institutionalized war on ganja and its users grows larger with each passing year. This war on otherwise law-abiding cannabis consumers has created literally millions and millions of unnecessary tribulations, taxpayer costs and casualties. In the period 1965-2007* there were 19,342,363 arrests for cannabis offenses, 89% of them for the possession of a small quantity of cannabis. Just before Election Day 2008, cops will arrest their 20-millionth man (or woman) for cannabis.

And if you’re a regular ol’ cannabis consumer or a medical cannabis patient in need of one’s medicine, that tragic 20 millionth arrest could be you!

Could be it be me, or one my loved ones!

At the current pace of arrest, the 20-millionth cannabis arrest will happen by Oct. 10, 2008, within a week of the 71st anniversary of America’s very first federal cannabis arrest of the terminally ill Sam Caldwell in 1937.

Who will he or she be, this unlucky person? Who will be the 20,000,000th victim of arrest during America’s cannabis prohibition?

Watch out! It could be you!

*1937-1965 marijuana arrest data is sketchy, but this adds many tens of thousands more arrests to the total. 2007 was the worst year on record with a total of 872,721 marijuana arrests, up 5% from 2006.

**The numbers of Americans arrested for marijuana offenses now are so huge, perhaps the only way to get a grip on the humanity of this prohibition-driven social disaster, is to think of just a few of the people who have paid the ultimate price since I joined NORML’s Board of Directors in 2004, those who actually lost their lives in the enforcement of cannabis prohibition.

John Walters, Bush’s Drug Czar, appearing on C-Span recently said, “We didn’t arrest 800,000 marijuana users…that’s [a] lie… The fact is today, people don’t go to jail for possession of marijuana. Finding somebody in jail or prison for possession of marijuana is like finding a Unicorn. It doesn’t exist.” Well, Walters is either lying or not reading his FBI Crime Reports, or both. Please, take an extra moment and look through this list of four cannabis prohibition victims to see if you can find a ‘Unicorn’.

1) Jonathan Magbie, RIP: Washington D.C., died Oct. 30, 2004. A wheelchair-bound, 28-year old, African-American paraplegic who needed a respirator to breathe at night. Jonathan was sentenced to 10 days in jail for the possession of one single joint. His mother tried frantically for days to get Jonathan’s respirator to him through the jail’s paperwork. He died on the fourth day of his jail sentence from respiratory failure, just a few miles from the White House, ONDCP, DEA and other multi-billion federal bureaucracies waging a war on cannabis, when in stark reality their war is directed at folks like Jonathan Magbie.

2) Timothy Garon, RIP organ transplant patient from Washington State, died May 1, 2008. Timothy was first on an organ transplant recipient list until a prohibitionist medical administrator busted Timothy off the list because Timothy tested positive for the medical marijuana that had been legally recommended and administered by his own doctor. Timothy died in Seattle while his case was under appeal.

3) Rachel Hoffman, RIP, 23, Tallahassee, Fl was last seen alive on May 7, 2008. After two small quantity pot arrests, and a search of Rachel’s home that found a little more, the cops forced Rachel to go undercover without telling her parents or lawyer, by using the fear of the much more serious charges that might be filed against her if she didn’t do what the police demanded. The cops then placed Rachel on a baited hook and went trolling for sharks. The Tallahassee police department sent Rachel out to try to make a crack and firearms buy. Rachel Hoffman was found dead in a nearby county two days later.

Then there is cannabis prohibition’s first official victim…

Samuel R. Caldwell, RIP, America’s first federal marijuana arrest, Denver, CO, Oct. 5, 1937. Arrested for selling two joints the day federal prohibition laws went into effect and was sentenced just two days later to four years in Leavenworth. Sam died of stomach cancer before his sentence was up. Sam Caldwell, America’s first incarcerated medical marijuana patient!

Just four ‘Unicorn’ sightings from America’s 20-million marijuana arrests…and remember: 872,000 annual cannabis arrests, 2,390 arrest per day, 99 arrests per hour, one every 37 seconds. Just imagine how many more ‘unicorns’ there are, and are you like me when I say I’m insulted that a cabinet level officer in the Executive Branch has to lie to downplay the negative and costly effects of his $25 billion a year bureaucracy’s failure to actual control cannabis cultivation, sales and consumption.

Hey Walters, how about some tax stamps for cannabis consumers just like your friends in the alcohol, tobacco and pharmaceutical industries enjoy?

“We Are The Ones We Have Been Waiting For.” — Pueblo saying

While the staff at NORML and the NORML Foundation assiduously avoid including funding requests in their blog posts and news alerts, as a NORML Board member I’m asking you to join the other board members and I in helping to expand NORML’s uniquely important educational, legislative and litigation programs—as well as allowing the national office to be as supportive and responsive as possible to the organization’s growing networks of both state chapters and lawyers.

I will be moderating a panel at NORML’s upcoming 37th annual national conference in Berkeley entitled: What If We Arrested 20 Million Americans—And No One Cared?

These public conferences are the most important political gatherings of the year for the cannabis law reform community and I hope you, your family and like-minded friends can join us October 17-19. Conference details found here.

To date, this unofficial debate between NORML and ONDCP has been one of the most popular public discussions ever at The Hill’s blog, which informs their editors (as well as other major publications’ and broadcast editors) that the issue of cannabis law reform is of great public concern and ripe for ongoing public policy debates about the future of cannabis prohibition.

Preview: In advance of you reading, and hopefully weighing in on The Hill’s blog, rather than engage in what I describe as the ‘flash card’ game–where every misapplication of science or anti-pot myth needs to be addressed–in my reply to the ONDCP’s rebuttal of NORML’s pro-reform advocacy efforts I try to focus on the larger issues at hand regarding personal freedom, autonomy, the proper role of the government in the private lives of it’s citizens and the obvious juxtaposition of the legal ‘drug’ industries (alcohol, tobacco and pharmaceuticals) to the failed 70-year old prohibition of cannabis.