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The Santa Barbra Sheriff's undercover narcotics unit arrested Anthony for Distribution of Cocaine. I tried this case with my great friend from the Trial Lawyer's College, Neil Levinson. Anthony was facing a minimum sentence of 22 years because of the quantity of crack cocaine, and because he had a prior conviction for distributing cocaine. He could not testify because under California law his prior would have been admitted.
Our defense was that the police framed Anthony and planted the cocaine in his home. After five days of trial the jury was hung and a mistrial was declared. Anthony eventually pled to a misdemeanor possesion charge and received probation.
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People v. "Aaron" (Possession of Marijuana)
Aaron was accused of possession of marijuana. He was in jail at the time that he was supposedly possessing it. Even though he was on jail at the time he was still prosecuted. Aaron's mom and step dad were going through an ugly divorce at the time. Our theory was that Aaron's step dad had actually been the anonymous caller and was trying to set him up. That he had actually planted the marijuana that was found in Aaron's bedroom.
The police said that Aaron had confessed in the jail house interview. I attacked the confession by discrediting the officer for not recording the confession because he just expects a jury to believe him over the accused. His explanation was that it was not his department's policy to record confessions. I asked him "are you telling this jury that your department has a set policy of deliberately not gathering evidence of a man's guilt even though you know it is your sides burden of proof?"
The jury acquitted him in seven minutes. It was obvious to all that his step dad had planted the marijuana in his room.
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People v. Thompson
(Possession With Intent to Deliver)
The police raided Larry's modular home. They had secured a warrant based upon a lie by a snitch who had to give them three busts to get out of trouble. Unfortunately Larry was number three. The police found two ounces of marijuana in a safe with $6,000 in cash. Near by in the same room they found a postal scale and a box of sandwich bags. The money was still in the bank wraps. The government seized, and forfeited his money. Larry went to post a bond for the money because he only had twenty one days to do so. Upon arriving at the police station the detective told him that it was not necessary to post the money, that he would make a note that Larry was contesting the forfeiture. The police waited two months to issue charges against Larry. They charged him with possession with intent to deliver.
When Larry hired me he told me what the detective had told him. I contacted the detective who laughingly told me that he did not know what Larry was talking about and that the money was forfeited.
When the police took his money Larry went to the bank and got a loan for $6,000. The money was to move his modular home. He tried to tell the police this but they would not listen.
At trial the police admitted that it was their policy to always forfeit money found near any quantity of drugs. They also admitted that they could only forfeit money if the person was charged with possession with the intent to deliver. We were able to place in evidence the new loan papers. The prosecutor kept calling Larry's residence a trailer an and each time she did Larry emphatically corrected her that it was a modular home. I kept emphasizing the injustice of the government stealing Larry's money. The judge kept reminding me that we were here for a criminal case, not a forfeiture hearing. I argued to the jury that Larry was charged with a felony so that the government could keep his money. Clearly this money was from a bank and not from selling drugs. I also told the jury if Larry was a drug dealer wouldn't he have just gone and sold more drugs to get the money that the government took.
The jury found Larry guilty of simple possession. Seven people on the jury wanted to let him go completely. The jury was angry that the government took his money, nobody likes a thief.
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People v. Battistel
(Possession With Intent To Deliver)
The police executed a search warrant on a home in Ferndale. A confidential informant had bought marijuana from a forty-five year old white male. Unfortunately for Will this man was Dave, his mom's boyfriend who lived with them. The police only found ten grams of marijuana in the possession of Dave. They charged him with possession of marijuana. In Will's bedroom they found a clear zip lock bag with ten ounces of marijuana. Outside of his bedroom in the basement there was a triple beam scale. Will was charged with possession with intent to deliver marijuana, a felony.
The "Costco defense."
Our defense was that this marijuana was for personal use, that he was guilty of a misdemeanor. In order to help the jury understand the quantity discount theory I went to Costco and bought a box of fifty disposable razors, and a bottle of 1000 ibuprofen. I figured these to be roughly a years supply of each.
During the trial the prosecution's expert on drug dealing, a police officer who had attended a class on drug enforcement, testified that it would take a heavy smoker a year to smoke this much marijuana and that it would go bad after six months. It was preposterous to even think that this quantity could be for personal use.
During cross examination the "expert" admitted that there statistics may not be reliable because every dope smoker is different and perhaps the smokers surveyed may not have been completely forthright. He also admitted that buying in quantity does save money and is safer being that some dealers are dangerous.
Dave, the boyfriend, testified that he had no knowledge of Will selling marijuana and that in fact Will was a heavy smoker. The prosecutor asked him if there was a lot of smoke coming from the basement. Dave said "well between our other house mate who's a heavy smoker and myself I can't really say, it was like a Cheech and Chong movie." The jury busted out laughing. Will chose not to testify. The jury deliberated for one hour. They convicted Will of simple possession.
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