Reefer madness continues to degrade the law

This wasn't supposed to happen here

[Reprinted from Issues & Views June 16, 2003]

As the system deteriorates further, leaving constitutional principles in the dust, we won't be able to claim that nobody warned us. For years we've had the facts spread out for us by informed writers such as Paul Craig Roberts, Craig Horowitz, Judge James Gray and the superlative journalist, Dorothy Rabinowitz.

And the articles and books on the subject are still flowing forth, as ex-judges, former prosecutors and practicing attorneys describe a justice system that has swerved from a 1960-70s irresponsible coddling of "perps" to one where presumption of guilt reigns -- a system that William Anderson describes as a "legal regime of overkill."

What else but "overkill" can the deplorable events that took place in Tulia, Texas, in 1999, be called? In what was supposed to be a "drug sweep" in the little town of Tulia (pop. less than 5,000), over 40 people were apprehended and arrested, with 38 being convicted of dealing drugs. These actions were the end result of months of undercover investigating by Tom Coleman, who was hired for the special assignment by the town's Sheriff.

Seven of the defendants were sentenced to prison terms, one for 99 years. Fourteen plea-bargained for their sentences, and others were sentenced to probation. Cases against 10 were dismissed. One defendant was cleared by his company's time cards, which proved he was at work on the day he was charged with dealing drugs. Another defendant produced bank records that proved she had been out of the state on the day in question. No drugs whatsoever were found on any of the defendants at the time of the multiple arrests.

All evidence for these defendants' misdeeds came from the agent Coleman, who used no taping or other surveillance equipment during his investigations, and had no means to corroborate his charges. He could not even recount the locations where individual drug transactions had taken place, and later could not identify some of the suspects.

For three years, families, friends and lawyers worked to get the jailed defendants new trials or exonerated. Of the incarcerated, 14 were finally considered eligible for hearings of their cases. And, this year, on June 3, it was announced that Texas Governor Rick Perry had signed a special bill to release these defendants on bail, to await the final disposition of charges.

Although most of those arrested in Tulia were black, all were not. Nor are blacks and other racial minorities the only victims of such egregious abuses of law, which sometimes are initiated by violent police raids. Thousands of whites are in jail cells around the country because of the type of chemical substance they chose to put into their bodies or to share with other consenting adults. As law enforcers become less accountable for their actions, almost any citizen might find himself the target of determined policemen armed with flimsy evidence possibly contrived by that hapless citizen's personal enemy. As has been reported in myriad cases, some of these law enforcers look to profit from the expected loot confiscated in drug busts [see journalist Karen Dillon's award-winning articles on drug forfeiture and read this I&V report on her work].

In an editorial praising Governor Perry for signing the bill granting bail release, the Austin American-Statesman (6/3/03) called for the court to act "expeditiously" to clear all 38 defendants. The editors claimed it was the minimum that should be done for people who were "railroaded by a corrupt criminal justice system and a prosecutor who suppressed facts."

Coleman misidentified suspects and changed official reports to untangle his accusations. There were no corroborating evidence or witnesses to confirm drug buys he said he made in public places. He claimed he made on-duty drug buys during periods when records show he was off duty. Police didn't recover any illegal drugs or cash when suspects were arrested. Coleman kept track of his drug buys by writing them down on his stomach and leg, he said.

During evidentiary hearings in March, Coleman's credibility was shattered by appeals lawyers for Tulia defendants. Visiting State District Judge Ron Chapman said Coleman's testimony was "riddled with perjury and purposely evasive answers." . . .

Like the one that employed Coleman, drug task forces are operating without adequate accountability and oversight in many Texas communities.

Though such a review is welcome, there is much more that needs fixing in this case to protect against a reoccurrence of Tulia. The State Bar of Texas should investigate Swisher County District Attorney Terry McEachern, whose work in this case may have violated state ethics rules governing conduct of prosecutors. Legal findings filed in the Tulia case show that McEachern failed to disclose facts about Coleman that would have benefited the Tulia defendants.

In an article, "Reefer Madness" (Sacramento Bee, 6/10/03), William F. Buckley, Jr. laments that sensible drug reform will only be achieved when "members of Congress and presidents are in recess," because such politicians, as enemies of reform, are "high from righteousness." Rebuking the conviction of marijuana activist Ed Rosenthal, Buckley cites the futility of prohibition and the arbitrary power of prosecutors:

When Nixon declared his tough-drug policies, athwart the recommendation of his own commission that had advocated licensing marijuana for individual home consumption, arrests climbed to more than 100,000 per year. In 2001, 720,000 Americans were arrested for pot. About 20,000 inmates in the federal system have been incarcerated primarily for a marijuana offense. Those in state systems would equal that figure, and exceed it.

The problem is more than the laws' contradictions. The Uniform Sentencing Act has given prosecutors, not judges, almost plenary powers over defendants, power ruthlessly used to extract information and to encourage duplicity and to make property rights insecure. Judicial process is convoluted to the point where a judge can reasonably exercise a choice between 100 years in prison and one day in prison.

In the campaign against the "War on Drugs," Buckley is not a lone conservative. On September 10, 2001, the day before the 9/11 catastrophe, Paul Weyrich, president of the Free Congress Foundation, announced that his organization had formed an alliance with other groups, declaring themselves the "Coalition for Constitutional Liberties." In his statement, Weyrich claimed that the FCF was "part of a broad coalition of groups concerned that the war on drugs has degraded our privacy and civil liberties." Unfortunately, along with multitudes of other important plans and initiatives, the terrorist attacks of 9/11 destroyed the impetus for the fledgling coalition, as the nation's attention was diverted elsewhere. Now, as the powers of law enforcement agencies are expanded and new ones invented, it is unlikely that the reforms long advocated by Buckley and others will be realized in the near future.

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