Thursday, May 16, 2013

AB 473: Turd Stew's Worst Enemy

State Assemblyman Tom Ammiano (D - San Francisco) recently introduced a bill in the state legislature that could finally bring some clarity to the convoluted mess surrounding California's tangled medical marijuana laws.  This blog regularly refers to CA's current MMJ framework as "turd stew", because it's murky, it's unappealing, and it's not what any of us ordered.

As previously discussed here, California voters overwhelmingly approved Prop. 215 (commonly referrred to as the "Compassionate Use Act", or "CUA") in 1996, which exempted "qualified patients" from most marijuana-related laws.  Those protections were extended in 2003 under SB 420 (also known as the "Medical Marijuana Program", or "MMP").  The MMP allowed patients to "collectivize" in order to help each other procure their medication.  MMP "collectives" quickly evolved into storefront dispensaries that served walk-in "patients".

As dispensaries proliferated over the following decade, cities and counties struggled with many unforeseen effects of marijuana's quasi-legal status.  In the absence of adequate zoning regulations, fly-by-night dispensaries sprung up (often without business licenses) in apartment buildings, near schools and in other sensitive locations.  Neighbors complained about crime, traffic, noise, odors, and related concerns.  Without any sort of legal oversight or inspection process, growers stole electricity by circumventing electrical meters.  Unpermitted outdoor grows contaminated waterways and damaged sensitive fish spawning grounds.  Meanwhile, patients had no way of knowing if their cannabis was tainted with pesticides (or actual pests), mold, etc.

Cities and counties experimented with various methods of controlling the heretofore unchecked proliferation of storefront dispensaries.  As previously discussed on this blog, the city of Long Beach implemented a lottery system, whereby applicants paid huge fees for a chance to win one of a limited number of "dispensary licenses".  Other cities imposed zoning restrictions or prohibited the shops altogether.  Californian patients were left with a mishmash of local laws that varied wildly from town to town.

Ambiguities within the existing laws were filled in by the courts, sometimes with contradictory results.  Consequently, there is still very little agreement in California today over what the various laws actually mean.  This is, in a nutshell, how we achieved today's current state of "turd stew" -- just a big, steaming bowl of something we don't even recognize.

As if things weren't bad enough already for Californian medical marijuana patients, enter the DEA.  The Obama administration began an aggressive new policy of targeting medical marijuana collectives in 2011.  Publicly, the Justice Department stated that it would not go after any clubs that were in "clear and unambiguous compliance with state laws".  Unfortunately, NOBODY is in "clear and unambiguous compliance" with CA law because nobody understands what CA law actually is.  As a result, every clinic in CA is subject to a federal raid at any time.  This has created a climate of fear and uncertainty among dispensary operators and patients.

Fortunately, help could finally be on the way.  Assemblyman Ammiano, longtime friend of the decrim community, has introduced a prescription that could help alleviate MMJ's growing pains.  His proposed law, AB 473, would allow the state's Department of Alcohol Beverage Control (the "ABC") to create reasonable rules and regulations to more uniformly govern the cultivation and distribution of medical marijuana.  The bill would impose uniform fees and taxes upon businesses engaged in the sale of marijuana.  Proceeds derived from those fees would be deposited into a "Medical Marijuana Fund", which would then be used to administer and enforce the law.  The ABC would be charged with ensuring the safety of cannibis provided to patients, as well as preventing harmful cultivation practices and the diversion of marijuana for non-medical uses.

Quintin Mecke, former spokesman to Assemblyman Ammiano, recently told the Huffington Post that the DEA was using the lack of statewide regulation as a justification to enforce a crackdown on local cannabis clubs.  Said Mecke, "If we create regulations, we've removed every reasonable explanation on their part to justify the crackdown."

CA NORML and other patient groups have unanimously endorsed the proposed bill.  Medical marijuana advocates hope that new regulations will ensure safe access to medical cannabis while helping to reduce or eliminate many of the negative effects that dispensaries have had on communities and preventing future hostile action from the DEA.

The bill is slowly winding its way through committee now.  It cleared a major hurdle in April when the Committee on Public Safety voted to recommend its approval.  The bill now goes back to the Committee on Appropriations for further amendments and analysis of the law's fiscal effects.

AB 473 has the potential to create a huge impact on CA MMJ law by ensuring public safety and reducing many of the harms currently associated with the medical marijuana industry.  We can expect a long, arduous fight as this bill works its way through the legislature.  Police unions have joined forces with the California District Attorneys Association to aggressively lobby against the proposed legislation.  Of course, the law enforcement industry will always oppose any common sense approach to marijuana policy reform.

It's too soon to guess whether AB 473 will ever even make it to the floor of the Assembly for a vote.  When (if) the bill ever makes its way out of committee, there remains the chance that amendments, riders, addenda and "tweeks" will render the legislation unrecognizable.  That's what makes this whole process so exciting!

Stay tuned for updates as they become available.  Thanks for reading.

Wednesday, May 15, 2013

What's the Difference Between "Robbery" and "Burglary"?

Update: This story was taken from the LA Times this morning, May 20, 2013.  Notice that the author refers to "robbers" and their plans to "rob" a car.  At the end of the article, the writer notes that both subjects were booked on suspicion of "burglary".  Someone doesn't follow this blog. 

Robbery and burglary are both theft-related crimes, but they should not be confused with each other.  I hear news broadcasters screw this one up all the time, e.g. "Robbers entered the vacant business around 4:30 AM and made off with inventory before police were able to respond to the building's silent alarm system", "Two homes in the Fullerton area were robbed while the occupants were away on vacation", or "Robbers are now using credit card scanners to steal your personal information while you're not even aware it's happening".  These fictitious news stories actually describe burglaries and thefts, but not robberies.

The distinction between "robbery" and other forms of theft is fairly simple and should not be cause for confusion.  Unfortunately, this distinction still eludes many in the news media -- people who have allegedly been trained to speak precisely and to accurately convey facts to the rest of us.

Put simply, robbery involves the taking of property from a person, "accomplished by means of force or fear".  The crime of robbery typically involves beating a victim and making off with the victim's wallet (taking of property accomplished by force), or sticking a gun into someone's face and demanding that a victim hand over his watch and jewelry (taking of property accomplished by fear).

Burglary, on the other hand, is the crime of entering property with the intent to commit theft.  Burglary can involve entering a person's home with the intent to steal that person's stereo (residential burglary), or breaking into a business to steal a safe (commercial burglary).  Note: since the passage of Prop. 47, entering a commercial business during normal business hours with the intent to commit theft is no longer included within the definition of "commercial burglary". 

If you come home from the movies and you find that thieves have broken a window to your garage and stolen your TV, you have been the victim of a burglary.  If thieves enter your house while you are home, tie you to a chair and beat you while they ransack the place, you have been the victim of a robbery.

I hope that answers all the questions you never cared to ask.  From now on, let's pay close attention to the definitions of the words we use, especially if we're in the business of accurately conveying information to the public.  Thanks for reading.

Tuesday, May 14, 2013

Freshly Squeezed Legal Analysis

OJ Simpson is in a Nevada courthouse this week to argue that his kidnapping and robbery convictions should be overturned.  The appellate brief outlines 22 separate grounds on which the judge may find that OJ's trial was flawed.  The major point raised on appeal, and the point I want to focus on here, is OJ's claim of "Ineffective Assistance of Counsel", or "IAC" for short.

As we all remember, OJ Simpson was arrested in 2007 on suspicion of several robbery and kidnapping-related offenses.  He was accused of leading a group of men who entered a hotel room to demand the return of some memorabilia from a collector.  OJ claimed that the items had been stolen from him and were his rightful property.  During the confrontation, two members of OJ's group brandished firearms while OJ threatened the collector.  He was convicted of 10 felony counts the following year and was sentenced to 33 years in prison.  OJ will become eligible for parole in 2017 after serving at least 9 years in custody.

OJ's new legal team will now argue, among other claims, that the former USC standout did not receive a fair trial because his former attorney acted incompetently.  The 6th Amendment to the US Constitution assures that criminal defendants have the right to assistance of counsel.  Over the years, that assurance has been interpreted by the courts to mean "effective" assistance of counsel, not just a warm body to sit at the table next to the defendant.  Whenever a criminal defendant is represented by a licensed attorney, that attorney is presumed to be competent and "effective".  The very heavy burden of proving IAC, then, falls on the appellant (the person seeking to overturn his conviction).

In order to prove IAC and win a retrial, the appellant must prove 2 things:

1) That the attorney's conduct fell below an "objective standard of reasonableness", and
2) That, but for the attorney's unprofessional conduct, there is a reasonable probability that the outcome of the trial would have been different.

These two elements are called the "Strickland Standard", because they were first elaborated in the case of Strickland v. Washington466 U.S. 668 (1984).  The argument is raised often on appeal because everybody sitting in jail blames his or her attorney.  IAC claims are rarely successful, though, because of the very high burden of proof that is placed upon the appellant.  

The first prong of the Strickland test requires the appellant to prove that his attorney's conduct was "objectively unreasonable".  This requires some showing that the attorney either acted under some actual conflict of interest, or else that his conduct was so outrageous that NO competent attorney ANYWHERE would EVER engage in such unprofessional behavior.  The court will generally afford great deference to an attorney's strategic, game-time decisions and will not second-guess a lawyer's judgement calls just because those decisions turned out poorly.  Attorneys often take calculated risks that don't obtain the results we had hoped for.  This is the legal equivalent of pulling your goalie toward the end of the game -- risky, but not necessarily crazy if there is some articulable explanation for taking that risk.  The appellate court will not find IAC just because, with the benefit of hindsight, we now know that a particular strategic decision was a bad one.  

If the court finds that the first prong is satisfied and that OJ's former attorney, John Galanter, acted extremely unprofessionally, the analysis doesn't end there.  Now we move on to the second prong.  Did Galanter's bad decisions really affect the outcome of OJ's trial?  Remember, it's not enough just to show that your attorney acted in an "objectively unreasonable" manner.  The appellant must also show that, if his attorney had demonstrated basic competence, there is a good chance that the appellant would be on the golf course and not in a jail cell.  This is harder to prove than it sounds.  Courts have denied IAC claims even where defense attorney was drunk during the entire trial, where the attorney slept while the prosecutor cross-examined the defendant, and where the attorney suffered from delusions and mentioned his delusions during opening remarks.  In those cases, courts found that the attorney did, in fact, commit unprofessional conduct, but that the conduct probably did not affect the ultimate outcome of the trial.  

We'll be watching closely to see how this all plays out.  If we've learned anything from history, it should be that legal analysts are almost always wrong when the Juice is in the backfield.

Did John Galanter commit some unprofessional misconduct?  If so, did that misconduct actually affect the outcome of OJ's trial?

Stay tuned for updates as they become available.  Thanks for reading.