_"It's weed man... they gonna give me two years for weed...?"

This is a quote from a client I had last year.  He was arrested and charged with Possession of Marijuana in the Second Degree, which is referred to as Marijuana for Personal Use, then had that charge trumped because he had previously been convicted of the same charge.  After a former football player's arrest for this same thing a few weeks ago, I had several spirited discussions on the issue on Twitter, primarily because someone compared Possession 2nd with speeding.  In Alabama, Possession 2nd is criminalized by Ala Code s. 13A-12-214, which states:

"Unlawful possession of marihuana in the second degree. (a) A person commits the crime of unlawful possession of marihuana in the second degree if, except as otherwise authorized, he possesses marihuana for his personal use only. (b) Unlawful possession of marihuana in the second degree is a Class A misdemeanor."

Class A misdemeanors, students, carry a punishment of up to one year in jail and up to $6000 in fines.  THAT is a little heftier that speeding.  Additionally, in 1998, President Clinton signed a bill into law that automatically suspended the ability for persons to receive federal loans, grants and work assistance if they were convicted of possession of a controlled substance.  Marijuana is included.  There have been efforts to repeal this penalty in recent years, but as far as I can tell all efforts have thus far been unsuccessful.

To be fair, many (if not most) courts in Alabama allow a first time offense for possession of marijuana for personal use to be pled down to possession of drug paraphernalia, which does not affect student loans.  It is, like marijuana 2nd, a class a misdemeanor, but most of the time any jail time is waived for probation, a fine, and court costs.  This goes to the credit of city prosecutors, district attorneys, and judges around the state who are alleviating the pressure placed on our justice system by a "drug" that some states have legalized and many more are on their way to legalizing.  Put simply, the courts and actors in those courts have begun the process of lessening the penalties for marijuana possession.

All of that being said, Alabama Code (1975) section 13A-12-213 also states:

"(a) A person commits the crime of unlawful possession of marihuana in the first degree if, except as otherwise authorized ... (2) He possesses marihuana for his personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his personal use only.
(b) Unlawful possession of marihuana in the first degree is a Class C felony."

This section allows for a second conviction of Marijuana 2nd to be treated as Marijuana 1st, which is, as you can see, a Class C felony.  Say it with me class: FELL-O-KNEE.  This is a sentence of AT LEAST 366 days in jail plus a fine up to $15000.  That's right -- for weed.  Experience has shown that given the DA/Prosecutor's willingness to allow a paraphernalia plea on the first time,  they force the defendant to plea guilty to marijuana 2nd on the second arrest, then go for marijuana 1st on arrest number three.

Speeding is a violation.  There is a reason they allow you to sign the ticket -- which is effectively your bond -- and drive away when you are arrested for speeding (don't believe me...? refuse to sign the ticket and see what happens, jailbird).  Speeding is not serious.  Weed is serious.  We can talk about WHETHER marijuana should be legalized all day but while it is illegal, it is essential to know how serious

So in review, Mr. and Mrs. Speeding=Marijuana, it really doesn't... at all.  Especially if you are a student.  And especially if it happens thrice.

This is a word I just coined...Bowldrums (n.) -- State of depression onset by the end of Bowl Season, which is often experienced the Saturday following the BCS.

So I am working today instead: finishing up the website, getting taxes ready to go to the bean-counter, etc.

Not a long post today -- just a serious note about something.

I currently have a worker's compensation case on appeal before the Alabama Court of Civil Appeals.  One of the issues involves statements that my client allegedly made to a co-worker that she wasn't injured, when she was in fact injured.  Bravado at the workplace is a big-deal -- I understand that -- before law school I worked in construction and at a manufacturing plant. 

However, it is ESSENTIAL if you are injured on the job that you report it immediately.  Further, don't "act tough" and tell everyone you are okay.

Read that again. 

It ties back into my post the other day regarding your right to remain silent.  You must assume that EVERYTHING you say to a co-employee--who is an agent of your employer--will be held against you.  And it will. 

The body is a weird thing.  There are documented medical cases where people have a severe accident and walk away, then hours, days or weeks later, their body is stricken with pain.  One doctor in my case testified to one such scenario -- it happens.  Thus it is possible after an accident that adrenaline is masking pain that you should be feeling: you might feel "okay" at that moment but in reality be severely injured.

Once you tell your employer or a co-employee that you are "okay" they will assume that you are indeed okay.  And because of that one statement that you uttered in an attempt to impress your co-workers on your toughness, your employer will allege that you were okay and you must have been injured elsewhere.

I am not telling you to lie.  If you injure yourself, alert your boss.  If they ask you if you are okay, "I don't know" is not a bad answer.  If they offer for you to go to the doctor.  Go.   But don't tell them you are "okay" until time and space have elapsed and you know for certain. 

That bell cannot be unrung.

The truth is relative in law.  Let that sink in for a second. 

I walk into every case with a blank slate -- or actually 3 blank slates.  On the first slate -- the one on the left -- I put the facts as relayed to me by my client and any potential witnesses.  On this slate goes the only amount of reality that matters -- an alibi.  And as funny as it might be to you, an alibi is only as good as the person who can attest to it.  If it is your employer who keeps an accurate time-clock of when you arrive at work, then it is good.  If your alibi is the guy who has been arrested seven times for selling drugs, it becomes less veracious, no matter how accurate it is.

On the right-hand slate I put the facts upon which the prosecution alleges they can base their case.  These are deduced from interviews with witnesses, police officers and even conversations with the prosecutor.  These facts are often supported with whatever physical evidence that exists.  I am not one who believes or will try to convince you that police always tell the truth.  Just like every other profession on earth, there are good cops and bad cops: there are cops whose statements I count as 100% truth and there are cops who I literally laugh at when they start lying to me.

The middle slate has two columns: the similar facts and the dissimilar facts.  The similar facts usually involve things that are static.  Similar facts can help prove your case.  Sometimes, like the example below, similar facts can seriously impede your case.

If a trial/ hearing is a war, then the dissimilar facts are the battles that decide that war.  If the prosecutor is able to convince the judge/ jury that his version of the dissimilar facts occurred, the defendant will be convicted.  On the other hand, if I am able to make the judge/ jury question whether the prosecutor's version of the pertinent facts is correct, then the defendant will be acquitted (or no probable cause found in the case of a preliminary hearing).  These battles waged using witnesses and evidence as weapons are the determiners of guilt or innocence.

The point of this post is that those things on the middle slate--those disputed facts--are a casserole of both sides' versions of what happened.  From them and the other evidence presented, the judge/ jury will make its own determination of "the truth."  This "truth" will be tempered by other evidence presented at trial, criminal past if admissible, veracity of witnesses, etc. 

I could literally give you a hundred examples.  One, however, will paint the most clear picture, and I will do it in the manner that I break down a case.

Defendant was charged with possession of drugs.  What follows is his statement, and that of the authorities.

Defendant: I was talking to a friend who had stopped his car in the street.  A guy was walking down the sidewalk beside both cars.  Another car pulled up behind my friend's car as he was about to leave, and 4 guys jumped out and yelled "get on the ground!!" I thought we were being robbed.  The guy walking past on the sidewalk ran between the two houses we were in front of and I ran behind him.  I came around the corner in time to see him go in the back door of a next door house so I continued running and came back out in the front yard of a house a few doors down, where the police were waiting.  One cop told another he thought I had thrown something while I was running, and he went looking.  A few minutes later he came back with a bag of drugs.  Those were not my drugs.  I had a digital scale in my pocket that I found earlier in the day.

Police: We were patrolling a high crime area in unmarked cars and came upon a car impeding traffic with a gentleman leaning into the driver's side window--it appeared to be a drug transaction.  We got out of the car and yelled, "Police!! Get on the ground!!"  The gentleman leaning in the car ran between two of the houses.  One of our officers pursued him.  The runner looped around and into the front yard of a house a few doors down where he was stopped.  Another officer who witnessed him running saw him throw something.  The officer retraced the runner's steps and found a bag of drugs on the porch of one of the houses.  Runner had a digital scale in his pocket commonly used to weigh drugs for sale.

I won't bore you with the similar facts, except the digital scale, which I will come back to in a minute.  The relevant dissimilar facts are: (1) the guy who Defendant claims was walking by and defendant followed (the police did not mention this guy, nor did they look for him) and  (2) Defendant says he never had drugs, while the officer says he saw Defendant throw them.

As you can see, this was a conundrum.  The Defendant professed his innocence, while there was at least one officer who stated that he saw the Defendant throw something that they later determined to be a bag of drugs.  To win at trial, we would have to convince the jury that our version of the "truth" was reasonable: that the person the Defendant ran behind was the one who dropped the drugs.  Had the police at least acknowledged the existence of the other runner, this would have been possible, and I think a great theory upon which to try the case.  The police, however, denied there being another runner.   I informed him that our only hope was if one of his friends from the car would testify that they also saw the first runner.  But even then...

There was the digital scale.  Defendant claimed he found it earlier that day.  It was small enough to fit in his front pocket, which is where the police found it.  And the police stated that it was the type "commonly used" for weighing drugs in drug transactions.  The digital scale was so powerful in this case.  It is not a crime to have one--I have one in my cabinet for cooking.  But I could just hear the jury deliberating: "Who carries a digital scale in their pocket...? A drug dealer, that's who."  Even if we had testimony that the other runner existed, I think the jury would have convicted the Defendant because of the digital scale.  Juries get hung up on little things. 

What would you do?  The decision was the Defendant's to make--I only advise.  The two options were (1) to try the case, with a potential prison sentence of 11 years if he was found guilty or (2) plead guilty for a guarantee of probation.  Based on my advice regarding the scale and the possibility of prison, he chose the latter. 

There are those of you who might doubt my counsel in this case, and that's fine.  I didn't advise him against the trial, I just told him I thought a conviction was likely based on the evidence.  I told him that I didn't care about what "really happened."  At the point when you are arrested "what really happened" disappears.  It's replaced by what the police say happened tempered by other evidence and the ability you have to poke holes in their theory.  The judge/ jury takes all of that information and comes up with "the truth."  No matter what really happened, at the end the verdict is "the truth."

There is, after all, a difference between committing a crime and being convicted/ pleading guilty of committing a crime.  If I didn't commit the crime, I would have no moral issues with pleading guilty to protect myself from the atrocities of prison that loomed with a conviction.  I hope you understand that.  There are hundreds--if not thousands--of persons sitting in jails who did not commit the crime for which they were convicted but were nonetheless found guilty.  On the other side of that same coin, there are a countless number of individuals who committed a crime and were never convicted.  In our legal system, truth and guilt, it turns out, are relative. 

I have heard many people say "I would never confess to something I didn't do."  That's the difference between you and me.  I know the difference between what I can prove and the truth.  The first is absolute.  The second is something determined by twelve people you don't know and based on things that might have very little to do with what really happened.

Like a small digital scale.

Your initial question is likely, "Why are you talking about rights?"

The first ten amendments to the US Constitution (The Bill of Rights) were REQUIRED by several of the states before they would ratify this new-fangled document called the Constitution.  Let me say that another way--without the Bill of Rights, the United States would not exist. So if something is important enough for Ben Franklin, Thomas Jefferson, James Madison, etc. to require it before they would agree to ratify the Constitution, I don't think you should give it away like it is Halloween candy.  After you read this, I hope that you treat it more like a $100 bill than a box of raisins.

You have any number of rights -- certainly too many for me to list here and actually more than are enumerated by the laws of any state or the US Constitution (the right to privacy being one not listed).  One of those rights from the Bill of Rights is your Fifth Amendment right against self-incrimination.  You have heard of someone "taking/pleading the Fifth": this is the right to which they are relying.  The Fifth Amendment has several rights, and all are important.  The phrase of the Fifth Amendment we refer to regarding self incrimination in simple enough: "...[no person] shall be compelled in any criminal case to be a witness against himself...."  This applies to all aspects of criminal prosecution, including questioning.  Most of you are likely familiar with the phrase "the right to remain silent" from TV shows where a Defendant is "read Miranda." 

In my opinion the right to remain silent is the most important of your rights because it is the only right that you can waive without first having had the opportunity to consult with an attorney.  Every other right follows it -- the right to an attorney, the right to a trial, the right to an appeal. Those come later, and you will likely have an attorney by your side and a judge asking you if you are certain you wish to do so when/if you waive those rights.  But your silence -- the police will try and get you to waive that one up front before you talk to anyone.  And they will get you to waive it based on lies, more lies, and damned lies.

"Why?" you might ask.  "Why is it so important?"

Here's an example of why it's important.

Section 20-2-190(b) of the Alabama Code (1975) states:"Notwithstanding the provisions of Section 20-2-188, a person who possesses, sells, transfers, or otherwise furnishes a listed precursor chemical or a product containing a precursor chemical commits an offense if the person possesses, sells, transfers, or furnishes the substance with the knowledge or intent that the substance will be used in the unlawful manufacture of a controlled substance. An offense under this subsection shall constitute a Class B felony."

I have two clients who are currently being prosecuted under this statute.  The drug at issue is meth -- a common drug in rural areas.  The precursor chemical is pseudoephedrine, which is contained in any version of Sudafed  you buy at a pharmacy.

The phrase at issue in both cases is this: "with the knowledge or intent...."  There is little doubt in my little legal mind that this singular phrase is an issue in EVERY precursor case in Alabama.  Now, you may ask yourself "how do you know?"

Here's how.

The local police track EVERY sale of pseudoephedrine drugs.  If your grandma buys Sudafed, her name goes on a list.  The printout I was able to look at showed one person's purchases in Alabama, Florida, and Mississippi (now, a prescription is required for Sudafed in Mississippi, so those purchases were older).  However, possession of Sudafed is not a crime in Alabama.  Period.  So it is not illegal for me or you to walk down the street with Sudafed in our pocket.  However, that phrase -- "with the knowledge or intent..." -- completely changes possession of a normal, legal sinus medication into a Class B felony (punishable by 2-20 years in prison).

The question is, how do the authorities know what I know or intend?  The answer, in both my cases, is that the Defendant told them--or at least said enough so that the police could infer intent or knowledge.

That's right.  Without speaking with an attorney, both clients talked to the police and waived one of the rights cherished by the founders of our country.  Had either of my clients said nothing OR asked for an attorney from the outset, they still would have been arrested, but the police would have ZERO proof of "knowledge or intent" required to prosecute them under _Section 20-2-190(b).  And today, when we had the preliminary hearing on the case, the District Court judge would have dismissed the case for lack of probable cause.  Instead, however, both talked to the police.  Both said enough to the police for their case to be submitted to a jury to determine if they had "intent or knowledge."  And I don't know about you, but a jury deciding what I knew or intended is scary when there is 20 years hanging in the balance.

So when given the choice, remain silent.  Ben Franklin required the US to provide that right and millions of Americans have died at war to ensure that you keep it.  Not a lot in life is free, but your silence is.  It will take more effort to waive it than it will to keep it.  Cherish it.

And by the way, the pseudonym that Ben Franklin used to anonymously publish his work was "Silence Dogood." 

That's why.

Not the movie, though I did watch it thrice last week.

Given the cold weather that keeps people locked inside, an abundance of eggnog, and family members that no one likes, I would be willing to guess that domestic violence arrests likely increase over the Holiday Season.  Domestic Violence encompasses all manner of relationships, not only spouses, children and siblings.  A person can be arrested and charged with domestic violence if they ONCE lived with the victim, even if they no longer do so.  So if  Johnny punches Debbie over the ugly Christmas sweater she gave him, if they lived together Johnny can be charged with domestic violence even though they were only friends and never dated.  Domestic Violence in its lowest form is a misdemeanor and usually only results in probation, but the permanent repercussion is that once convicted you are not allowed to own or carry a pistol.  This is just one example where you can unknowingly forfeit a right -- to own and carry a pistol, under the Second Amendment -- because you did not hire an attorney to represent you.

So be nice to your family and friends over the holiday season, even if you don't like them.  And most importantly, don't give ugly sweaters as gifts.