Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

I’m always wary about commenting on other people’s personal tragedies, but the confused logic of a recent editorial in the Denver Post cries out for critical thought.  Jim Spencer (no relation) talks of his brother’s untimely demise at the hands of alcoholism and heroin use, and starts his piece with this quote: 

We buried my brother earlier this year on his 56th birthday, roughly 41 years after I watched him take his first drink.  I don't recall seeing my brother smoke pot on his way to chronic alcoholism, heroin addiction and a compulsion for painkillers that once led him to steal a prescription pad from our family doctor.  Though he probably smoked some dope, addiction helped kill my brother, not any single kind of drug.  

The Op-Ed piece goes on to outline the writer’s opposition to Colorado’s Amendment 44, which would decriminalize small amounts of marijuana possession for adults 21 and over.

But, let’s take a closer look at that initial statement of facts.  Doesn’t it argue against the “gateway theory” that we hear espoused (on our dime) by the Drug Czar every day?

Addiction comes in many forms, and is often either physically or psychologically lethal.  But the real question is this: should we solve that problem by incarcerating the addict?  That's what our current drug policy mandates.

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The Las Vegas Review-Journal editorializes on the impropriety of the Drug Czar’s use of taxpayer money to campaign against Nevada’s upcoming marijuana decriminalization initiative.

The hypocrisy of politicians who claim to be against big government and federal intervention on matters of local interest often arises when they support the so called War on Drugs. The Dallas Morning News reprints Ryan Sager’s column which mentions the locally popular medical marijuana movement as an example of this.

Lianne Hart of the Los Angeles Times writes an article about a small Arkansas town’s efforts to decriminalize marijuana.

Kanrei blogs about the Canadian military stumbling upon ten foot marijuana plants in Afghanistan.

And finally, while I suppose I wouldn’t mind being known as Austin’s “Marijuana Lawyer”, this news item prompts me to say I can only take payment in the form of cash, check or credit card.

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Alzheimer’s sufferers appear to benefit from THC, the active ingredient in Marijuana.

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In its never-ending disinformation campaign, the DEA has set up a website called StumbleWeed, a fake magazine to “teach” children the “truth” about marijuana. In the section titled Rx Pot: Prescription for Disaster, they claim to cut through the hype about medical marijuana, and get to the facts:

Even though some groups have endorsed smoking marijuana for medical use, major medical organizations do not agree. This is what they say…The American Medical Association rejected marijuana as medicine.

Apparently, even though they provide the hyperlink to the AMA’s position on medical marijuana, the DEA believes folks won’t read or understand it. Let’s take a look at the first and last sentences from the link itself:

The AMA calls for further adequate and well-controlled studies of marijuana and related cannabinoids in patients who have serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease…The AMA believes that effective patient care requires the free and unfettered exchange of information on treatment alternatives and that discussion of these alternatives between physicians and patients should not subject either party to criminal sanctions.

Not exactly undecipherable medical mumbo jumbo.   Just the AMA directly calling for more studies on the medical uses of marijuana, and absolutely stating opposition to its criminalization.

According to the DEA, however, the AMA “rejected marijuana as medicine”. Here’s a free tip for the DEA: disinformation campaigns work better, when you don’t provide direct access to the truth.

(Hat Tip: Drug WarRant)

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§ 481.121. OFFENSE: POSSESSION OF MARIHUANA. (MARIJUANA)

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

(b) An offense under Subsection (a) is:                                      

            (1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

            (2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

            (3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

            (4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

            (5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

            (6) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

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I enjoyed Cliff Hutchison’s post at the ScienceEvidence Blog (cleverly titled Don’t Bogart That Expert) about the qualifications of a marijuana defendant’s expert witness. 

The case discussed involved a former criminal defense lawyer who was an opponent of the drug war, who had been qualified in 100 marijuana cases to testify as an expert witness, always for the defense. The court eventually ruled that the defense had not properly established his qualifications as an expert in the field.

However, they rejected the Government’s theory that his testimony was more prejudicial than probative, simply on the basis of his bias against our current system of prohibition and incarceration.  Cliff questioned that part of the finding:

Query, though, if the government wasn’t correct in arguing that an advocate witness has no business offering Rule 702 testimony? Logan claimed to have testified in over one hundred marijuana cases, and if his testimony was consistently an argument favoring marijuana defendants, how can it be considered reliable? The testimony becomes simply bolstering, in the guise of expert opinion, hence not helpful to the fact finder.

I have to jump in and disagree here. Let me make my point by using some obvious and common examples from the prosecution. Would this mean that the Austin Police Department’s DWI Task Force officers, who are qualified as experts in the standard field sobriety tests based on their NHTSA training, would be disallowed if it turned out they always testified for the prosecution? (I assume it’s self evident that they do.)  If I could just get them disqualified, I'd probably win every case...

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§ 1.07. DEFINITIONS.

(a) In this code:

                        (39) "Possession" means actual care, custody, control, or management.

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Jordan Smith’s always excellent Weed Watch column in this week’s Austin Chronicle focuses on three topics:

1. 800,000 arrests in the U.S. for marijuana in 2005 (with 88% of them being for simple possession)
2. Willie Nelson’s recent non-arrest for half a pound of marijuana
3. The Government’s new anti-marijuana You Tube campaign

Anyone reading this think they could have gotten star treatment for a felony amount of marijuana? If getting a ticket is good enough for Willie, why does everyone else have to be arrested for it?

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Radley Balko over at The Agitator posts three examples about the dangers of paramilitary police raids.

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Stan White writes a Letter to the Editor of the Central Kentucky Newsletter decrying a pastor’s previous letter bashing medical marijuana. I’m interested myself in looking into his claim that the kaneh-bosm mentioned in the Old Testament is actually cannabis, but for now, I’ll leave you with this quote:

Biblically, caging humans for using cannabis (kaneh bosm) is a sin and for clergy to support cannabis persecution, prohibition and extermination is very regrettable.

Biblically, morally, ethically and also, just from the standpoint of “Your Tax Dollars At Work”, I have to agree with him.

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The “Gateway Theory” of marijuana prohibition goes like this: marijuana use leads to “hard drug” use, such as cocaine and heroin. Since cocaine and heroin use are “bad”, we must criminalize marijuana to keep our children (and perhaps ourselves) from becoming hard core drug addicts.

The proof of the Gateway Theory is supposed to lie in the statistics that show that cocaine and heroin users in large part started out using marijuana. Since correlation (apparently) proves causation, marijuana use in teenagers and young adults therefore causes “hard drug” use later on.

Like most logical fallacies, when presented artfully, this can be a persuasive rhetorical device: it appears that the proponent of the theory is correct. Cocaine and Heroin users have a very high incidence of marijuana being their first illegal drug of choice. There must be a causal connection.

Let’s ignore for now the refutation that a higher percentage of cocaine and heroin addicts consumed alcohol than marijuana, and we all “know” that alcohol use does not cause cocaine or heroin addiction… (since many readers, like me, are occasional alcohol consumers who have never tried cocaine or heroin)

Let me ask you this: don’t you think the percentage of cocaine and heroin users that drank milk sometime in their lives (before use of the drug) is probably almost 100%?

Correlation does not prove causation. That’s just another logical fallacy brought to you by the Drug Czar.

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When you catch someone in a deliberate lie, don't you distrust the rest of their message?

Opponents of the marijuana decriminalization movement are fond of using straw man arguments.  These deliberate mischaracterizations tend to fall into two broad categories: (1) "They just want to smoke dope", and (2) "They want your children to become addicts/dope fiends".

While I'm sure there are casual marijuana users who support legalization, the first argument ignores all the economic, social and moral reasons we should have a more sensible drug policy.

Jordan Smith's Weed Watch column in this week's Austin Chronicle highlights an example of the second type of straw man argument.  Here is the entire text of the question being submitted to Colorado voters:

Shall there be an amendment to 18-18-406 (1) of the Colorado Revised Statutes making legal the possession of one ounce or less of marihuana for any person twenty-one years of age or older?

However, opponents of Amendment 44 have managed to write the language of Colorado's voter-education pamphlet to "explain" that the amendment would allow adults to give marijuana to teenagers.  Go ahead... re-read the text of the amendment.  Now ask yourself this:

If propronents of continuing the criminalization of marijuana were being honest, would they have to resort to such tactics?

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The Office of National Drug Control Policy's blog 'Pushing Back' posted an entry where they ask "Marijuana near schools: Harmless?"

Read the Sacramento TV News station's story that the Drug Czar points to, and ask yourself this:  Was it the marijuana that 'caused' the gun problem?  Or is the fact that marijuana is criminalized what 'caused' these folks to bring handguns and an assault rifle with them?

There are truckers all over the highways across America transporting tons of legal substances (coffee, tea, etc.) that don't feel the need to arm themselves this way.  But if caffeine products were illegal, wouldn't it be the law itself that caused the transporters of the coffee and tea to arm themselves, and not the caffeine itself?

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