Possessing Marijuana (8/4/01)

I was attending a criminal docket in county court a couple of months back. Everything was pretty much routine - at least for a while. The next thing I know I had been appointed to represent a guy out of the metroplex charged with possession of marijuana. That's the nature of the business. You stand around in court at the "wrong" time and you find yourself representing an indigent defendant at a fraction of what you would normally charge.

Call me naive, but I take the criminal appointments very seriously. The last thing a poor defendant needs is to believe his lawyer doesn't care about his case simply because he is court appointed.

I tracked him down within the courthouse and visited with him briefly.

He was not happy. The previous county attorney had offered to reduce the charge to the equivalent of a traffic ticket with a small fine. The new CA wanted him to plead guilty to possession of marijuana, pay a higher fine, and receive a probationary period.

He denied his guilt. Adamantly.

Well, I thought, how good of a case did the State have. That is, could they prove it?

I learned that he was driving his (now) ex-girlfriend's car along with a passenger who was a friend of that girlfriend. He was stopped for speeding near Rhome by a Texas trooper. (By the way, did I mention the my new client was black?). He was asked to step out of the car and the trooper requested permission to search his car. "No problem," my guy said.

The trooper takes a look inside the car and finds a "blunt" in the ashtray. (No one recalled whether the ashtray was open or shut).  I soon learned that a blunt looks like an ordinary cigar except the tobacco has been removed and replaced with marijuana.

When I was a prosecutor, one of the toughest cases to prove is one involving dope found in a car with multiple occupants. The State has to prove that the defendant actually knew the marijuana was there - and they have to prove it beyond a reasonable doubt. Because of this, it is important to locate any evidence that will link the defendant to the dope. Was it, for example, found next to a coat that belonged to him? Were any of his personal papers nearby? Did he have any drug paraphernalia in his pockets?

After visiting with him he told me one thing as almost an afterthought: The passenger had received a ticket for possession of drug paraphernalia. This seemed incredibly important, I thought. A regular looking cigar filled with marijuana had been found in a vehicle not owned by the defendant and the passenger had some type of drug paraphernalia on her body yet she was not charged with possession of marijuana.

I wondered why. I also wondered if my new client was telling me the truth.

Eventually I had a chance to review the offense report prepared by the officer. Pretty much everything the defendant had told me was reflected in the report. There was, however, once exception: No where in the report was there a mention that the passenger received a ticket for drug paraphernalia.

A couple of months passed and eventually the case rose to the top of the trial docket. It was time to either accept the plea bargain offer or go to trial. Specifically, I learned that the case would be reached about a week before the jury was to be called in. Time to get work. After several phone calls and a bit of detective work, Penny, who works in my office, was able to confirm that the passenger had in fact received a ticket for drug paraphernalia. What paraphernalia you ask? Rolling papers and marijuana seeds.

Understand the significance of this: The passenger was directly connected to the marijuana but was not charged. My client, who was simply driving a car that he didn't own, was arrested for possession of marijuana.

The defendant and I met to discuss the plea bargain offer for the final time about an hour before trial. If convicted, the defendant faced up to 180 days in jail. I told him that, if convicted, I would be stunned if he did not receive probation, but he needed to know the worse case scenario.

Then an excruciating moment occurred for me. One that happens all the time. He looked at me and said, "Mr. Green, what are our chances of winning?"

I paused and told him 60% to 65%. Not bad odds, I said, but far from a sure thing. I also told him that I could not let him plead guilty to something that he didn't do.

I left him alone for a while because he wanted to make some telephone calls. He called his new girlfriend. He called his mom. He fretted.  When I returned, he had made a decision: Let's roll the dice and see what a jury says.

The trial was not long.  It was, however, fascinating to see a fairly liberal view from the jury panel on the issue of marijuana. Many thought we needed to consider legalizing it, but all said they could follow the law. One comment that several people agreed with was from one potential juror who said: "I've been to parties where some folks are smoking pot and others are getting drunk. Those folks getting drunk are heck of lot more obnoxious and dangerous that the pot smokers." Everyone laughed.

As to the evidence presented, the trooper had basically no memory of the traffic stop other than what was contained in his report. (This is why law enforcement supervisors stress the need for detailed and accurate report writing). Most importantly, he had no recollection of finding rolling papers and marijuana seeds on the passenger. In fact, he couldn't provide an explanation as to why the passenger was not arrested.

I showed him a copy of the ticket the passenger received.

The verdict? Not guilty. (Do you think I would write about this if he had been convicted?)

When the verdict was read, the defendant leaned over to me and said, "What exactly happens next?". I told him "nothing". It was over, and he could never be retried for that alleged crime again.

In the grand scheme of things, it was a small misdemeanor trial that most folks could care less about. It wasn't worthy of coverage by the local paper, there were no court room observers, and I suspect even the clerk and the court reporter may forget about it completely in the months to come.

But to that defendant, it was an excruciating experience. I lost some sleep as well.  And despite this moment in both of our lives, I will probably never see him again.

One final note: During breaks, the defendant was constantly writing into a spiral notebook, filling up page after page. I finally couldn't stand it, told him that I knew it wasn't any of my business, but I would like to know what he was writing about. He and his new girlfriend, he told me, had a long distance relationship. During the day, he tries to write down his thoughts about the day's events. She does the same thing. On weekends they exchange the notebooks and talk about their experiences.

I ended up really liking the guy.

Barry Green served as District Attorney for Wise and Jack Counties from 1993 through 2000. He is now a partner in the Decatur law firm of Smith & Green, P.C.

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